CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Massachusetts District Court Holds Contractors Are Not Additional Insureds on Developer’s Builder’s Risk Policy

August 31, 2020 — Gus Sara - The Subrogation Strategist
In Factory Mut. Ins. Co. v. Skanska United States Bldg., No. 18-cv-11700-DLC, 2020 U.S. Dist. LEXIS 95403 (Skanska), the United States District Court for the District of Massachusetts considered whether contractors on a construction job were additional insureds on the developer’s builder’s risk insurance policy. After a water loss occurred during construction, the builder’s risk insurance carrier paid its named insured for the resultant damage, and subsequently filed a subrogation action against two contractors. The defendants filed a motion for summary judgment, claiming that the anti-subrogation rule barred the carrier from subrogating against them because they were additional insureds on the policy. The court found that based on the particular language of the additional insured provision in the policy, the defendants were not additional insureds for purposes of the subrogation action. Skanska arose from property damage that occurred during a construction project where Novartis Corporation (Novartis) endeavored to construct a biomedical research building in Cambridge, Massachusetts and retained Skanska USA Building, Inc. (Skanska) as the general contractor. In turn, Skanksa hired J.C. Cannistraro, LLC (JCC) as a subcontractor. Novartis secured a builder’s risk insurance policy from Factory Mutual Insurance Company (Factory Mutual). The policy defined “Insured” as Novartis and its subsidiaries, partnerships and joint ventures that it controlled or owned. The policy included another provision, titled “Property Damage,” which stated that the policy “insures the interest of contractors and subcontractors in insured property… to the extent of the Insured’s legal liability for insured physical loss or damage to such property.” Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams
Mr. Sara may be contacted at sarag@whiteandwilliams.com

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The Risks and Rewards of Sustainable Building Design

July 25, 2021 — Caroline A. Harcourt & Adam Weaver - Gravel2Gavel
The shift towards a “greener” environment has resulted in cities and states implementing electrification mandates, which will have a major impact on both current and future building design. Currently, most commercial and residential end users are already all-electric. However, there are some exceptions, such as space and water heating, that use a significant amount of energy. Several states, including California and New York, have cities that have introduced legislation requiring new construction to be all-electric. This means, for example, using electricity for heating rather than fossil fuels such as natural gas. Mandate or not, building owners and developers should consider the risks and rewards of an all-electric design. General Rewards

• Reaching Climate Goals: As part of the Clean Energy Plan, as described in a previous post, President Biden has created a goal for the United States of achieving a carbon pollution-free American utility sector by 2035. Because residential and commercial building account for 40 percent of energy consumption in the United States, all-electric building designs will help governments and businesses reach the ambitious climate goals that have been set for the coming years.

Reprinted courtesy of Caroline A. Harcourt, Pillsbury and Adam Weaver, Pillsbury Ms. Harcourt may be contacted at caroline.harcourt@pillsburylaw.com Mr. Weaver may be contacted at adam.weaver@pillsburylaw.com Read the court decision
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Contractors: Beware the Subordination Clause

October 15, 2014 — Garret Murai – California Construction Law Blog
A bit of mechanics lien trivia. What is the only state in the United States in which mechanics liens are a constitutional right? If you answered California, ding, ding. Article XIV of the California Constitution states:

Mechanics, persons furnishing materials, artisans, and laborers of every class, shall have a lien upon the property upon which they have bestowed labor or furnished material for the value of such labor done and materials furnished; and the Legislature shall provide, by law, for the speedy and efficient enforcement of such liens.

But how does that constitutional right stand up against contractual rights? Not so well it seems. Read the court decision
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Reprinted courtesy of Garret Murai, Kronick Moskovitz Tiedemann & Girard
Mr. Murai may be contacted at gmurai@kmtg.com

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On to Year Thirteen for Blog

January 13, 2020 — Tred R. Eyerly - Insurance Law Hawaii
Insurance Law Hawaii hits twelve years of existence this week, 1347 posts later. We started in December 2007. We continue in order to keep up on developing issues in insurance law. We strive to keep readers abreast of new developments in cases from Hawaii and across the country. Other Damon Key blogs to check out are inversecomdemnation.com [here] authored by Robert Thomas, Mark Murakami's oceanlawhawaii.com [here] and hawaiiconstructionlaw.com [here] by Anna Oshiro. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Last, but NOT Least: Why You Should Take a Closer Look at Your Next Indemnification Clause

March 09, 2020 — Aimee Cook Oleson - Construction & Infrastructure Law Blog
Indemnification clauses appear in nearly every agreement, but they are often overlooked as mere boilerplate provisions after the parties have painstakingly negotiated all of the other terms. It is not uncommon for parties to simply re-use the indemnity language from a prior agreement without considering whether it is a good fit for their current project. This can be a big mistake that may lead to ambiguities and uncertainties if a dispute arises down the road. A standard or canned indemnification clause might work to undo all of the effort that has gone into properly allocating risk. These clauses often contain language such as “notwithstanding anything to the contrary herein,” or the like, which can alter and override other provisions in the agreement. Indemnification clauses are arguably the most important part of an agreement when an accident or dispute arises on a project. Therefore, they deserve an extra look before finalizing an agreement. Here are a few issues to keep in mind when reviewing your next indemnification clause:

• Have you included all necessary parties?
• Any party who could face potential liability should be included as an indemnified party. This often includes entities and persons related to the contracting parties, not just the parties themselves.
• A well drafted indemnity clause will ensure that all parties are liable for the result of their own work and negligence and that of any party that they have hired to work on a project. This includes employees, agents, subcontractors, or any other similar party.

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Reprinted courtesy of Aimee Cook Oleson, Sheppard Mullin
Ms. Oleson may be contacted at AOleson@sheppardmullin.com

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Real Estate & Construction News Roundup (7/17/24) – Housing Inflation to Remain High, Proptech Investment to Fall and Office Vacancy Rates to Reach Peak in 2025

August 26, 2024 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
In our latest roundup, construction backlog to see positives signs, regional banks to be conservative on buybacks, U.S. metro areas to permit few new housing units, and more!

• Venture capital investments in proptech and adjacent companies fell 14.3% in the first half of the year. (Leslie Shaver, Multifamily Dive)
• The expectation of interest rate cuts by the Federal Reserve later this year due to easing inflation and cooling economic growth is a positive sign for construction backlog. (Sebastian Obando, Construction Dive)
• The U.S. office real estate sector is now in three markets, each with different performance, but the overall office vacancy rate will reach a 21.6% peak in the second half of 2025. (Nish Amarnath, Construction Dive)

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

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Good Indoor Air Quality Keeps Workers Healthy and Happy

June 10, 2024 — Ellie Gabel - Construction Executive
Most people primarily think of air conditioners as appliances to keep people cool. However, a 2024 study of office air conditioners shows that they promote indoor air quality by minimizing the harmful effects of bushfire smoke. The research indicated air conditioners used in office environments can trap particles and reduce people’s exposure to harmful elements such as sulfates and nitrates. The researchers collected particulate matter from commercial air conditioner filters during the peak bushfire season in Australia. Evaluations showed the daily particulate matter levels were usually two to three times the average amount. However, some hourly maximums were 10.5 times the usual. The team took samples for four months, finding the specimens exceeded national air quality standards 19% of the time. Analyses performed in a university showed commercially available air filters captured significant amounts of bushfire smoke, reducing the associated hazards for building occupants. Reprinted courtesy of Ellie Gabel, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Privette: The “Affirmative Contribution” Exception, How Far Does It Go?

August 10, 2020 — Courtney Arbucci, Peter A. Dubrawski & Austin F. Smith - Haight Brown & Bonesteel
In Horne v. Ahern Rentals, Inc. (No. B299605, filed 6/10/2020 ord. publ. 6/10/2020), Plaintiffs filed a wrongful death action against Defendant Ahern Rentals, Inc. (“Ahern”) arising out of the fatal incident involving Ruben Dickerson (“decedent”), while employed by independent contractor 24-Hour Tire Service, Inc. Decedent was ultimately crushed on Ahern Rentals, Inc.’s property when a forklift that was improperly placed on uneven ground collapsed as decedent laid under the raised forklift as he performed tire maintenance. Plaintiffs’ suit would normally be barred by the Privette line of decisions which arise out of the foundational principle that an independent contractor’s hirer presumptively delegates to the contractor its tort law duty to provide a safe workplace for the contractor’s employees. (Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette).) The Privette rule is subject to a number of exceptions including the “peculiar risk” exception, the “nondelegable duty” exception and the “affirmative contribution” exception. (See Privette, supra.) Here, Plaintiffs’ claimed that their suit against Ahern arose out of the “affirmative contribution” exception to Privette as defined by Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202 (Hooker). Hooker allows suits otherwise barred by Privette to go forward if the hirer of the independent contractor “exercised control over safety conditions at the worksite in a way that affirmatively contributed to the employee’s injuries.” Reprinted courtesy of Haight Brown & Bonesteel attorneys Courtney Arbucci, Peter A. Dubrawski and Austin F. Smith Ms. Arbucci may be contacted at carbucci@hbblaw.com Mr. Dubrawski may be contacted at pdubrawski@hbblaw.com Mr. Smith may be contacted at asmith@hbblaw.com Read the court decision
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