Cambridge Massachusetts Building Expert Directory

Apartment Building Damaged by Cable Installer’s Cherry Picker

November 20, 2013 — CDJ STAFF
The owners of Oceana Apartments are suing Shentel Cable Co. and their subcontractors, CCI Systems, Inc. and Big Dog Communications, over the damage caused when a cherry picker rolled downhill and smacked into the building. Kenneth Benn, an employee of Big Dog Communications, was installing utility wire when the cherry picker started moving. The suit alleges that Mr. Benn either failed to properly apply the brakes or immobilize the vehicle before staring work. Mr. Benn is also named as a defendant in the suit. Read the court decision
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Attorney-Client Privilege in the Age of Cyber Breaches

October 18, 2021 — Shaia Araghi - Newmeyer Dillion
Investigations and forensic reports relating to a cybersecurity breach may not always be protected by the attorney-client privilege or work product protection. Companies seeking such reports after a data breach must take caution to protect them from a possible waiver of privilege in the event of subsequent litigation relating to a data breach. The following recent cases highlight the potential waiver of privilege in light of the preparation of a forensic report.

In re Capital One Consumer Data Security Breach Litigation, 2020 WL 3470261 (E.D. Va. June 25, 2020)

After a data breach occurred, Capital One retained a law firm that later entered into an agreement with Mandiant for various cyber-related services (including incident remediation), which required that Mandiant provide deliverables to the firm, rather than to Capitol One. In re Capital One Consumer Data Security Breach Litigation, 2020 WL 2731238, at *1 (E.D. Va. June 25, 2020). Plaintiffs sought release of the report created by Mandiant (regarding the factors leading to the breach), arguing that it was prepared for business and regulatory purposes and therefore was not privileged, while Capital One argued that the report was privileged because it was prepared in anticipation of litigation. Ibid. The Court determined that Capital One did not carry its burden of establishing that the report was protected by the attorney work-product doctrine and ordered that Capital One produce the report. Id. at *7. In its reasoning, the Court stated that the fact that there is litigation does not, by itself, provide prepared materials with work-product protection. Ibid. The work-product protection applies when a party faces a claim following an event that may result in litigation, and the work product would not have been prepared in a substantially similar form but for the prospect of that litigation. Ibid.

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Reprinted courtesy of Shaia Araghi, Newmeyer Dillion
Ms. Araghi may be contacted at shaia.araghi@ndlf.com

New OSHA Rule Creates Electronic Reporting Requirement

June 22, 2016 — John K. Baker & Kevin Conrad – White and Williams LLP
The United States Occupational Safety and Health Administration (OSHA) issued a Final Rule revising portions of its Recording and Reporting Occupational Injuries and Illnesses regulations (Recording and Reporting Regulations). The revisions take effect August 10, 2016. Employers subject to the new requirements have until July 1, 2017 to submit electronically the required information for calendar year 2016. OSHA will make electronically-submitted workplace-safety data for each reporting employer available publicly in an online database. Reprinted courtesy of John K. Baker, White and Williams LLP and Kevin Conrad, White and Williams LLP Mr. Baker may be contacted at bakerj@whiteandwilliams.com Mr. Conrad may be contacted at conradk@whiteandwilliams.com Read the court decision
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Apartment Boom in Denver a Shortcut Around Condo Construction Defect Suits?

September 24, 2013 — CDJ STAFF
For every condo currently being built in Denver, there are 40 apartment units. And there are some who think that this is being done to evade construction defect lawsuits. At issue is the statute of limitations for construction defects. Under Colorado law, condominium buyers have six years after the completion of constrution to sue for construction defects, unless the defect isn’t discovered until the fifth or six year, in which case they are given until the eighth year. But what if someone built an apartment building, rented out the units for six years, and then converted the whole thing to condominiums? Some think that the construction defect clock would be reset. Amie Mayhew, the CEO of the Colorado Association of Home Builders noted that if this is the case, “you’d be back at square one.” But Doug Benson, a construction defect attorney, thinks that if a builder did this, and didn’t make any further construction, no one would be able to sue for construction defects, even if the condo owners found them. Mr. Benson, who represents homeowners, said that “they’re apartment homes and that’s just to avoid liability.” Mike Gifford, the president of the Associated General Contractors of Colorado, noted that insurance companies were already wary of apartment complexes, fearing that they would be turned into condos. Whatever the cause, Denver seems to have a shortage of condos. But, they’re going to have a lot of apartments available. Read the court decision
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Construction Defect Claims are on the Rise Due to Pandemic-Related Issues

April 25, 2022 — Beverley BevenFlorez – CDJ Staff
According to a recent New York Times article, pandemic-related issues such as “stop-and-start construction, global supply chain issues, pressure from lenders and yo-yoing housing prices” has caused an increase in construction defect suits for new apartment developments: “Complaints and legal claims are already emerging, signaling that a confluence of all factors amid the Covid crisis could continue to be a problem for new construction — from entry-level studios to top-tier penthouses — for years to come, according to lawyers and development consultants.” A Times analysis of Department of Buildings data by Marketproof demonstrated an increase in complaints beginning March 1st, 2020: “During the first year of the pandemic, new residential buildings recorded an average of five complaints per building, a 46 percent jump from the same period the previous year.” Steven D. Sladkus, a partner at Schwartz Sladkus Reich Greenberg Atlas told the Times that his “'phone’s been ringing off the hook' with complaints from homeowners in new condo buildings” regarding “heating problems, poor sound insulation, fire safety issues and faulty elevators.” Developers have faced a variety of pandemic-related challenges including a disrupted supply chain, shut downs, shipping delays, labor shortages, and increased material prices. In 2020, the lack of availability of vaccines caused some construction to halt: “Suddenly one guy calls in sick and the whole crew of electricians can’t show up,” Steven Zirinsky, co-chair of the building codes committee at the New York chapter of the American Institute of Architects told the Times. Read the court decision
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Sales of Existing U.S. Homes Unexpectedly Fell in January

February 22, 2018 — Sho Chandra – Bloomberg
Sales of previously owned U.S. homes unexpectedly fell in January to a four-month low, indicating a shortage of available properties is increasingly hindering the real-estate industry, a National Association of Realtors report showed Wednesday. Sales growth is limited by an acute shortage of inventory, which is pushing up home prices faster than wage growth. The group noted that property prices have jumped 41 percent over the past five years, while wages have gained 12 percent. If the current pace of sales continues -- which NAR doesn’t anticipate -- purchases would be lower than in 2017. At the same time, steady hiring and elevated confidence to make large purchases, as well as tax cuts that are boosting Americans’ take-home pay, are expected to sustain demand for housing in much of the nation. Read the court decision
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Reprinted courtesy of Sho Chandra, Bloomberg

General Liability Alert: A Mixed Cause of Action with Protected and Non-Protected Activity Not Subject to Anti-SLAPP Motion

February 18, 2015 — Valerie A. Moore, Lawrence S. Zucker II and Blythe Golay – Haight Brown & Bonesteel LLP
In Baral v. Schnitt (filed 2/5/2015, No. B253620), the California Court of Appeal, Second Appellate District, held that California’s anti-SLAPP statute does not authorize the striking of allegations of protected activity in a cause of action that also contains meritorious allegations of non-protected activity not within the purview of the statute. In so holding, the court attempted to resolve, or at least add its voice to, the growing conflict among appellate districts on the issue. A SLAPP lawsuit (Strategic Lawsuit Against Public Participation) seeks to chill or punish the exercise of constitutional rights to free speech and to petition the government for redress of grievances. California’s Legislature enacted the anti-SLAPP statute to permit a defendant to file a special motion to strike as to any cause of action that arises out of an act in furtherance of such rights. In Baral, the plaintiff alleged that his business partner had violated fiduciary duties in usurping the plaintiff’s ownership and management interests in their jointly owned company, so that the defendant could benefit from a secret sale of the company. The complaint alleged that the defendant hired a public accounting firm and prevented the plaintiff from participating in its investigation in order to force the plaintiff's cooperation of the sale of the company. The defendant filed an anti-SLAPP motion, seeking to strike all references to the accounting firm's audit. The trial court denied the motion, on the ground that the anti-SLAPP statute applies to causes of action, not allegations. Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Valerie A. Moore, Lawrence S. Zucker II and Blythe Golay Ms. Moore may be contacted at vmoore@hbblaw.com. Mr. Zucker may be contacted at lzucker@hbblaw.com. Ms. Golay may be contacted at bgolay@hbblaw.com. Read the court decision
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Court Finds that Subcontractor Lacks Standing to Appeal Summary Judgment Order Simply Because Subcontractor “Might” Lose at Trial Due to Order

May 03, 2021 — Garret Murai - California Construction Law Blog
Cases sometimes take unanticipated twists and turns. Atlas Construction Supply, Inc. v. Swinerton Builders, Case No. D076426 (January 26,2021), involving a tragic construction accident, a motion for summary judgment, a motion for good faith settlement, and a stipulated dismissal, is one of those cases. The Accident Swinerton Builders was the general contractor on a residential construction project in San Diego, California. Swinerton contracted with J.R. Construction, Inc. to perform concrete work and with Brewer Crane & Rigging, Inc. to perform crane work on the project. J.R. Construction in turn rented a concrete column formwork approximately 10 feet tall and weighing 300 to 400 pounds from Atlas Construction Supply, Inc. One day on the construction project, Marcus Develasco, Sr. and another co-worker, employees of J.R. Construction, climbed to the top of the formwork to adjust its size. The formwork, which had been positioned on the site by Brewer, was upright but unsupported by braces. When the co-worker stepped off the formwork, Develasco’s weight caused the unsecured formwork to topple over, killing Develasco in the process. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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