CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Insured's Jury Verdict Reversed After Improper Trial Tactics

October 09, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The appellate court reversed a jury verdict for the insured due to improper trial tactics by his attorney. Homeowners Choice Property and Cas. Ins. Co., Inc. v. Kuwas, 2018 Fla. Ct. App. LEXIS 9500 (Fla. Ct. App. July 5, 2018). The insured sued Homeowners Choice (HCI) alleging breach of contract due to a denial of coverage for property damage as a result of water loss. During the trial, HCI raised objections to various questions posed by the insured's counsel during the testimony of HCI's litigation manager, as well as various closing arguments made by the insured. The jury entered a verdict for the insured for a substantial sum. HCI appealed. 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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Did the Building Boom Lead to a Boom in Construction Defects?

May 10, 2013 — CDJ STAFF
The height of the building boom is now almost a decade past but some are saying that the results of the rush to get housing built during the profitable market are still with us. The Wall Street Journal reports on the rise of construction defect lawsuits as these homes have aged, some not too gracefully. One couple thought they were hearing acorns falling on their roof. They were less happy to find that the source of the noises was their house slumping on one end, leading to cracks throughout the house. Their neighbors had similar problems and they are now part of a lawsuit against the builder. The expenses to repair the houses could total millions of dollars. Some have suggested that during the building boom both building and inspection standards were more lax in order to keep up with the pace of building. Criterium Engineers, a building-inspection firm, estimates that 17% of new homes built in 2006 had at least two significant defect, while only 15% of those built in 2003 fit these criteria. Meanwhile others attribute the rise in construction defect lawsuits to home inspector and construction defect attorneys looking for new territories to exploit. Read the court decision
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Construction Defect Claim Did Not Harm Homeowner, Court Rules

September 30, 2011 — CDJ STAFF

The Minnesota Court of Appeals has ruled in Creswell v. Estate of Howe, a case in which a woman bought a home and then sued the seller’s estate, both sets of real estate agents, and the homeowner’s association over construction defects. A district court ruled against her, granting summary judgment to the other parties.

After buying a townhome “as is,” Catherine Creswell claims to have shared a thought with her agent that the homeowners association was, in the words of her agent, “trying to hide something.” Later, Creswell found that a few days before her closing, the board had discussed problems with “roofs, siding and soundproofing of the townhomes.” The court noted that “it was clear from the documents that appellant [Creswell] received that the association had known about various construction defects for many years, some of which affected [her] unit.”

Creswell initially sued the estate, the man who negotiated the sale for his mother’s estate, the real estate companies and the agents involved, the homeowners association, and four board members. Later she sued for punitive damages, dropped a claim for interference with contractual relations, and dismissed her claims against the individual board members. The court dismissed all of Creswell’s claims awarding costs to those she sued.

The appeals court has affirmed the decision of lower court, noting that Creswell “did not provide us with any argument why the district court erred in dismissing her unjust-enrichment, breach of contract, or rescission claims against the various respondents.” Nor did she provide evidence to support her claims of “breach of duty, fraud, and violation of consumer protection statutes.”

The court noted that Creswell could not sue the homeowners association over the construction defects because she “failed to prove that she was damaged by the association’s nondisclosure.” The court noted that “there are no damages in this case,” as Creswell “was never assessed for any repairs, she had not paid anything out-of-pocket for repairs, and she has presented no evidence that the value of her individual unit has declined because of the alleged undisclosed construction defects.”

The court granted the other parties motion to dismiss and denied Creswell’s motion to supplement the record. Costs were awarded to the respondents.

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Relying Upon Improper Exclusion to Deny Coverage Allows Bad Faith Claim to Survive Summary Judgment

December 04, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The insurer was successful on summary judgment in establishing it correctly denied coverage for collapse, but its motion was denied regarding the insureds' bad faith claim. Jones v. State Farm Fire & Cas. Co., 2018 U.S. Dist. LEXIS 153102 (W.D. Wash. Sept. 7, 2018). The insureds' retaining wall collapsed. They tendered to State Farm under their homeowners policy. An engineer retained by State Farm determined that the wall buckled due to "excessive lateral earth pressure from retained soils behind the wall." The parties agreed that the soil, saturated by water from frequent rain, grew too heavy for the retaining wall to bear, causing the collapse. 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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Direct Contractors In California Should Take Steps Now To Reduce Exposure For Unpaid Wages By Subcontractors

February 07, 2018 — Nora Stilestein, Candace Matson , and Mercedes Cook - Construction & Infrastructure Law Blog
As of January 1, 2018, direct contractors in California who make or take a contract “for the erection, construction, alteration, or repair of a building, structure, or other private work” are jointly and severally liable with their subcontractors for any unpaid wages, fringe benefits and other benefit payments or contributions owed to wage claimants. Governor Brown approved AB 1701 on October 14, 2017. The new law puts the onus on direct contractors to not only monitor their own payroll practices, but to ensure that their subcontractors and lower tier subcontractors are engaging in proper payroll practices. Reprinted courtesy of Sheppard Mullin attorneys Nora Stilestein, Candace Matson and Mercedes Cook Ms. Stilestein may be contacted at nstilestein@sheppardmullin.com Ms. Matson may be contacted at cmatson@sheppardmullin.com Ms. Cook may be contacted at mcook@sheppardmullin.com Read the court decision
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Presenting a “Total Time” Delay Claim Is Not Sufficient

September 12, 2022 — David Adelstein - Florida Construction Legal Updates
When presenting a delay-type of claim on a construction project, a claimant MUST be in a position to properly PROVE the claim. Trying to present a delay claim loosey-goosey is not a recipe for success. In fact, it can be a recipe for an easy loss. This is not what you want. To combat this, make sure you engage a delay expert that understands delay methodologies and how to calculate delay and do NOT present a total time claim. Presenting a delay claim using a total time approach, discussed below, makes it too easy to attack the flaws and credibility of the approach. Per the discussion of the case below, a total time claim with a contractor that used its project manager, versus a delay expert, to support its claim turned the contractor’s claim into a loss. In French Construction, LLC v. Department of Veteran Affairs, 2022 WL 3134507, CBCA 6490 (CBCA 2022), a contractor submitted a delay claim to the government for almost $400,000. The contractor was hired to construct a two-story corridor to connect hospital buildings. The contractor was required to be complete within 365 days. It was not. The contractor was seeking 419 days of delay from the government. The contractor’s “delay expert” was its project manager who compared the contractor’s as-planned schedule to an as-built schedule he prepared for the claim. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Confidence Among U.S. Homebuilders Little Changed in January

January 28, 2015 — Bloomberg News
(Bloomberg) -- Confidence among U.S. homebuilders hovered in January close to a nine-year high, indicating the residential real estate market is poised to expand this year. While the National Association of Home Builders/Wells Fargo builder sentiment gauge fell to 57 this month from 58 in December, readings greater than 50 mean more respondents report good market conditions, according to figures issued from the Washington-based group Tuesday. The median forecast in a Bloomberg survey called for 58. Read the court decision
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Reprinted courtesy of Bloomberg News

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Understanding California’s Pure Comparative Negligence Law

November 13, 2023 — Yaron Shaham - Kahana Feld
In order for a plaintiff to prove a defendant is negligent, the plaintiff must prove the defendant (1) owed a duty to plaintiff, (2) breached that duty, (3) the breach was the actual and proximate cause of plaintiff’s injury, and (4) the resulting monetary damage. However, for both plaintiffs and defendants it is not an all or nothing game in California. This is because California is a pure Comparative Negligence state. California’s Comparative Negligence law provides that even if a plaintiff is deemed 99% at fault, the plaintiff can still recover 1% in damages from a defendant. Thus, even if a plaintiff is deemed to be more than 50% (or even 99%) at fault for the incident, the plaintiff could still recover some monetary amount, or the defendant will still have to pay plaintiff, depending on how you see it. In most instances, a jury decides what percentage of fault to assign to each party. Just as a plaintiff must prove he/she/its negligence case against a defendant, if the defendant claims plaintiff was partially responsible for the incident, the defendant must prove plaintiff was also negligent and said negligence contributed to plaintiff’s injuries. The total amount of monetary responsibility distributed among all defendants and plaintiffs must equal 100%. As crazy as it may sound, a plaintiff found to be 99.9% at fault, is still entitled to recover 0.01% from a defendant in California. Read the court decision
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Reprinted courtesy of Yaron Shaham, Kahana Feld
Mr. Shaham may be contacted at yshaham@kahanafeld.com

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