Cambridge Massachusetts Building Expert Directory

The Need to Be Specific and Precise in Drafting Settling Agreements

December 30, 2013 — W. Berkeley Mann, Jr. — Higgins, Hopkins, McLain & Roswell, LLC
The case of Bituminous Casualty Corp. v. Hartford Casualty Insurance Corp., 2013 WL 452374 (D. Colo. February 6, 2013) is instructive as an example of both the confusion and resulting escalation of litigation that can result from a lack of clarity in settlement negotiations. This is particularly true where parties settle outside of their insurance coverage, and/or without notifying their insurer(s), which have denied coverage. The case involved coverage litigation following settlement of a multi-party construction defect case involving the Rivergate multi-family residential development in Durango, Colorado. The condominium owners association sued, among others, the developer (Rivergate Lofts Partners, hereafter “RLP”) and the general contractor (Genex Construction, LLC, hereafter “Genex”). This follow-on case involved the insurers for RLP (“Hartford”) and Genex (“Bituminous”). The coverage dispute was complicated by the Bituminous allegations that Hartford insured Genex in its alleged role as a manager for RLP, as part of Hartford’s insurance of RLP more generally. The underlying facts were that Hartford denied insurance coverage and defense to Genex/Bituminous. The underlying construction defect case went to mediation, with the COA, RLP, and Genex all in attendance with their respective insurer representatives, and coverage counsel. While the evolving facts of that mediation were later disputed as to their motives, intentions, and the contemporaneous knowledge of the parties, the facts reflected in documents were fairly clear. Read the court decision
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Reprinted courtesy of W. Berkeley Mann, Jr.
W. Berkeley Mann, Jr. can be contacted at mann@hhmrlaw.com

Environmental Regulatory Provisions Embedded in the Infrastructure Investment and Jobs Act

January 03, 2022 — Anthony B. Cavender - Gravel2Gavel
With the enactment of this important legislation, its impact on environmental regulation and policy will be carefully analyzed by the regulated community. Such a review may be hampered by the fact that the law is not only complex but also very long (over 2000 pages!). The Infrastructure Act is mostly an appropriations and authorization law, but it includes many new policy choices. This is a brief review (which can only scratch the surface of this law) of some of the many environmentally related provisions, which are part of this new law and can be located in the pdf version of the law. The law is composed of nine separate divisions, which are further divided into separate titles and subtitles. Division A is entitled “Surface Transportation”; Division B is the “Surface Transportation Investment Act of 2021”; Division C is “Transit”; Division D is “Energy”; Division E is “Drinking Water and Wastewater”; Division F is “Broadband”; Division G is “Other Authorizations”; Division H is “Revenue Provisions”; Division I is “Other Matters”; Division J is “Appropriations”; and Division K is “Minority Business Development.” It is somewhat bewildering on first reading, as befits a law that is expressing the manifold policy decisions made by the Congress. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Coloradoans Deserve More Than Hyperbole and Rhetoric from Plaintiffs’ Attorneys; We Deserve Attainable Housing

January 09, 2015 — David M. McLain – Colorado Construction Litigation
As the 2015 Colorado legislative session gets underway, the media attention and discussion regarding the lack of attainable housing, skyrocketing rental rates, and the ongoing state and local efforts to reverse these trends have risen to a dull roar. The hyperbole and rhetoric from those who would oppose any reforms has risen to cacophonous levels. Among the most often quoted talking points from the opposition are that any changes to Colorado’s existing laws would strip homeowners of their right to seek redress for construction defects and that they would virtually insulate construction professionals from such claims. The long and the short of it is that if this year’s legislation looks anything like SB 220 from last year, nothing could be further from the truth. The two main provisions from SB 220 were: 1) protection of a construction professional’s ability to resolve construction defect claims through arbitration; and 2) requirement of informed consent of more than 50% of the owners within a common interest community before a construction defect action could begin. Neither of these changes would strip homeowners of any rights and they certainly would not insulate construction professionals from construction defect actions. Read the court decision
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Reprinted courtesy of David M. McLain, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McLain may be contacted at mclain@hhmrlaw.com

Builder Survey Focuses on Green Practices of Top 200 Builders

October 01, 2014 — Beverley BevenFlorez-CDJ STAFF
Builder magazine reported that the 2013 Builder 100/Next 100 survey provided data on how many builders constructed homes using a certified third-party green rating system. They discovered that nearly half of the 200 top U.S. builders constructed 100% of its homes to a third-party standard, while 38.5% reported that some of the homes were constructed using a third-party standard, while 12.5% stated that none of their homes were built to a third-party standard. “The decision to offer homes that are high-performance, energy-efficient, non-toxic, sustainable--whatever the preferred term--involves many considerations and builders must weigh expenses and impediments against potential benefits,” according to Builder magazine. Read the court decision
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4 Steps to Take When a Worker Is Injured on Your Construction Site

March 27, 2023 — Zachary Perecman - Construction Executive
The construction industry continues to be one of the fastest-growing labor trades. According to the Center for Construction Research and Training, since 2019, 11.4 million U.S. workers have been employed in construction, a 25% increase from 2011. Amid this growth, the industry has remained one of the most dangerous, and workers are often at higher risk of injuries and deaths due to occupational incidents. According to the U.S. Bureau of Labor Statistics, there are 150,000 injuries on construction work sites annually. Under Occupational Health and Safety Administration (OSHA) law, employers have a responsibility to provide a safe work environment. That includes providing a workplace that is free of serious recognized hazards. Despite best efforts in implementing risk-mitigation and safety protocols, employers must be prepared with an incident procedure should an incident occur on a jobsite. Taking immediate, clear actions can impact the severity and outcome of injuries from a workplace incident. With this in mind, employers should take the lead in implementing safety procedures for injuries on construction sites and should inform all safety site managers and workers of the steps that should be taken. Reprinted courtesy of Zachary Perecman, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Florida’s Supreme Court Resolves Conflicting Appellate Court Decisions on Concurrent Causation

December 21, 2016 — Afua S. Akoto – Saxe Doernberger & Vita, P.C.
The Supreme Court of Florida kicked off December with an opinion that determined which theory of recovery applies when multiple perils combine to create a loss, and at least one of those perils is excluded by the terms of a policy. In Sebo v. American Home Assurance Company, Inc.,1 the court resolved the conflict between the Florida Appellate Courts for the Second District and the Third District and declared the concurrent cause doctrine (CCD) as the more applicable theory of recovery over the efficient proximate cause doctrine (EPC). The underlying dispute concerned damage to a home Sebo purchased in Naples, Florida in April 2005. The American Home Assurance Company (AHAC) insured the home under a manuscript policy specifically created for the property with limits of over eight million dollars. In May 2005, Sebo discovered major water leaks in the main foyer, master bathroom, exercise room, piano room, and living room of the home. In August, paint fell off the walls after it rained, and it became clear that the house suffered from major design and construction defects. When Hurricane Wilma struck in October, the house was further damaged by rain water and high winds, and was eventually demolished. Read the court decision
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Reprinted courtesy of Afua S. Akoto, Saxe Doernberger & Vita, P.C.
Ms. Akoto may be contacted at asa@sdvlaw.com

Illusory Insurance Coverage: Real or Unreal?

August 24, 2017 — David Adelstein - Florida Construction Legal Updates
In insurance coverage declaratory relief actions, there are times an insured will argue that the insurance policy coverage is illusory. Typically, an insured will raise this illusory argument if its insurer is denying coverage based on an exclusion or limitation in the policy. If a court agrees and deems the coverage illusory, the court will construe the policy to afford coverage to the insured. This is the obvious value of the argument: coverage! “A policy is illusory only if there is an internal contradiction that completely negates the coverage it expresses to provide.” The Warwick Corp. v. Turetsky, 42 Fla.L.Weekly D1797a (Fla. 4th DCA 2017). Thus, if a policy grants coverage in one section but then excludes the same coverage in another section, the coverage would be deemed illusory. Id. quoting Tire Kingdom, Inc. v. First S. Ins. Co., 573 So.2d 885, 887 (Fla. 3d DCA 1990). An illusory policy was found in the following examples: (a) a policy covered certain intentional torts but then excluded intended acts; (b) a policy covered advertising injury but elsewhere excluded advertising injury; and (c) a policy covered parasailing but excluded watercrafts. Id. (citations omitted). In all examples, coverage in the policy was completely swallowed up by an exclusion rendering the coverage illusory. Stated differently, coverage was completely contradicted by an exclusion in the policy rendering the policy absurd. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at Dadelstein@gmail.com

Texas Supreme Court Holds that Invoking Appraisal Provision and Paying Appraisal Amount Does Not Insulate an Insurer from Damages Under the Texas Prompt Payment of Claims Act

September 16, 2019 — John C. Eichman & Grayson L. Linyard - Hunton Insurance Recovery Blog
In two cases decided June 28, 2019, the Texas Supreme Court held that an insurer’s invocation of a contractual appraisal provision after denying a claim does not as a matter of law insulate it from liability under the Texas Prompt Payment of Claims Act (“TPPCA”). But, on the other hand, the court also held that the insurer’s payment of the appraisal award does not as a matter of law establish its liability under the policy for purposes of TPPCA damages. In Barbara Techs. Corp. v. State Farm Lloyds, No. 17-0640, 2019 WL 2666484, at *1 (Tex. June 28, 2019), State Farm Lloyds issued property insurance to Barbara Technologies Corporation for a commercial property. A wind and hail storm damaged the property, and Barbara Tech filed a claim under the policy. State Farm denied the claim, asserting that damages were less than the $5,000 deductible. Barbara Tech filed suit against State Farm, including for violation of the TPPCA. Six months later, State Farm invoked the appraisal provision of the policy. More than a year after the suit was filed, appraisers agreed to a value of $195,345.63. State Farm then paid that amount, minus depreciation and the deductible. Barbara Tech amended its petition to include only TPPCA claims. Reprinted courtesy of John C. Eichman, Hunton Andrews Kurth and Grayson L. Linyard, Hunton Andrews Kurth Mr. Eichman may be contacted at jeichman@HuntonAK.com Mr. Linyard may be contacted at glinyard@HuntonAK.com Read the court decision
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