Cambridge Massachusetts Building Expert Directory

Demonstrating A Fraudulent Inducement Claim Or Defense

May 18, 2020 — David Adelstein - Florida Construction Legal Updates
In a recent case, Florida’s Fourth District Court of Appeal reversed a trial court’s denial of a motion for a temporary injunction sought by an employer due to an independent contractor’s violation of a non-compete and non-solicitation provision in an employment / independent contractor agreement (“employment agreement”). You can find more on this case and the enforcement of the non-compete and non-solicitation clause here. A worthy discussion in this case centers on the independent contractor’s fraudulent inducement defense. Specifically, the independent contractor, as a defense to the injunction, claimed that he was fraudulently induced into entering into the employment agreement because the employer promised he would make a certain amount of money and he would work predominantly in one geographic location. The employment agreement contained NO such representations. Instead, the employment agreement contained a fee and services schedule and the independent contractor would be compensated based on that schedule. It stated nothing as to the independent contractor only having to work, or predominantly working, in one geographic location, or that the independent contractor would be guaranteed “X” amount of money working in that location. Why is this important? 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

NY Appeals Court Ruled Builders not Responsible in Terrorism Cases

January 13, 2014 — Beverley BevenFlorez-CDJ Staff
In a ruling on a case related to the September 11, 2001 attacks, New York federal appeals court stated that builders and developers could not be held responsible for losses linked to terrorism, Reuters reports. Circuit Judge Rosemary said the building “would have collapsed regardless of any negligence ascribed by plaintiffs' experts.” Scott Sweeney writing for the Schinnerer's RM Blog explained, “This decision should make it harder for constructors and designers to be held responsible for damages resulting from major acts of terrorism and unforeseeable events that can be nearly impossible to prepare for.” Read the full story at Reuters... Read the full story at Schinnerer's RM Blog... Read the court decision
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Colorado General Assembly Sets Forth Prerequisites for an Insurance Company to Use Failure to Cooperate as a Defense to a Claim for First Party Insurance Benefits

August 10, 2020 — Christine Kroupa, John Palmeri & Katelyn Werner - Gordon & Rees
Despite first party insurance policies generally requiring cooperation from an insured in the investigation of a claim, insurers can no longer rely on the failure to cooperate as a defense in a claim for first party insurance benefits in Colorado unless certain conditions are met. The Bill: On July 2, 2020, Colorado Governor Jared S. Polis signed House Bill 20-1290 which addresses the ability of an insurer to use a failure to cooperate defense in an action where the insured has made a claim for benefits under an insurance policy. This bill bars an insurer from raising the failure to cooperate unless the following conditions are met:

The insurer submitted a written request to the insured or the insured’s representative for the information (via electronic means if consent was given by insured or insured’s representative, or via certified mail);
The information is not available to the insurer without the assistance of the insured;
The written request provides the insured 60 days to respond;
The written request is for information a reasonable person would determine the insurer needs to adjust the claim filed by the insured or to prevent fraud; and
The insurer gives the insured an opportunity to cure, which must:

Provide written notice to the insured of the alleged failure to cooperate, describing with particularity the alleged failure within 60 days after the alleged failure; and
Allow the insured 60 days after receipt of the written notice to cure the alleged failure to cooperate.

Reprinted courtesy of Gordon & Rees attorneys Christine Kroupa, John Palmeri and Katelyn Werner Ms. Kroupa may be contacted at ckroupa@grsm.com Mr. Palmeri may be contacted at jpalmeri@grsm.com Ms. Werner may be contacted at kwerner@grsm.com Read the court decision
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How Machine Learning Can Help with Urban Development

March 27, 2019 — Aarni Heiskanen - AEC Business
An experimentation project has demonstrated the capabilities of machine learning in urban development. It used images as a starting point and came up with interesting and useful applications. “I read data science papers on how machine vision algorithms can be used with satellite imagery. I immediately saw a connection to what we had been doing,” Antti Kauppi, architect at Arkkitehdit Sankari, explains. “Most people associate image recognition with Google’s visual searches. Google can distinguish whether a photo shows a cat or another animal, for example. We went a step further.” An Experiment with Open Urban Imagery Arkkitehdit Sankari Oy, a Finnish architectural design firm began the experimentation project CityCNN in May 2018. It received funding from KIRA-digi, the Finnish government’s digitalization program for the built environment. CityCNN explored the possibilities of using machine learning and open data for urban development. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi

The “Up” House is “Up” for Sale

May 07, 2015 — Garret Murai – California Construction Law Blog
You might remember the 2009 Pixar/Disney 3-D animated movie “Up,” about an aging widower, Carl Frederickson, who learns to let go of his past and live his dream of moving he and his beloved late wife’s “clubhouse” to a cliff overlooking Paradise Falls in Venezuela where the once young couple’s hero, Charles Muntz, a famous but now disgraced explorer, was said to have discovered the skeleton of a rare bird which skeptics alleged was fabricated. In the movie, the “clubhouse” is integral to the plot. In the opening scenes of the movie the audience learns that the clubhouse, which had been Mr. Frederickson’s deceased wife’s clubhouse that the couple later turned into their home, is sitting in the middle of a construction zone because old Mr. Frederickson has refused to sell his house to a developer who has proceeded to build around his house anyway. When a large loader knocks over his mailbox and a construction worker tries to fix it, Mr. Frederickson struggles with the worker not wanting him to touch any of his memories, and in the process inadvertently strikes the man with his cane. Later, in court, Mr. Frederickson learns that he has to leave the house and go to a retirement home. Apparently, justice is quick and decisive in their town. However, instead of going to a retirement home peaceably, codgy Mr. Frederickson rigs the clubhouse with thousands of balloons and proceeds to fly away, home and all. And, so the movie begins. Soon, however, what some have called the real life “Up house” will be sold. And the story behind the house is about as a interesting as its movie counterpart. And, because we lawyers are into disclosures, I will disclose that “counterpart” is more accurate than “adaption,” since the movie Up was in production before the events giving rise to the real life Up house took place. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

Construction Lien Needs to Be Recorded Within 90 Days from Lienor’s Final Furnishing

March 22, 2018 — David Adelstein – Florida Construction Legal Updates

A lienor needs to record its construction lien within 90 days of its final furnishing date. This final furnishing date excludes punchlist, warranty, or the lienor’s own corrective work. A lien recorded outside of the 90-day window will be deemed invalid.

The opinion in In re: Jennerwein, 309 B.R. 385 (M.D. Fla. 2004) provides a good discussion of this 90-day window. This matter dealt with a debtor / owner’s bankruptcy where the owner was contesting the validity of a construction lien by its pool contractor. The owner contended that the lienor’s lien was recorded outside of this 90-day window thus rendering the lien invalid. The bankruptcy court was determining the validity of the lien.

In this matter, the owner hired a swimming pool contractor to construct a pool. On October 25, 2002, the pool contractor installed pavers around the pool. After this was performed, the pool contractor realized the owner was unable to obtain the financing to pay for the pool. As a result, the pool contractor ceased doing any more improvements. But, neither the pool contractor nor the owner terminated the contract. Then, on November 27, 2002, the pool contractor sent a supervisor to the property to inspect the pool (work-in-place), the pool equipment, the installed pavers, made a list of the unfinished work, and remove any debris. On January 27, 2003, the pool contractor recorded its lien.

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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

Court of Appeals Finds Additional Insured Coverage Despite “Care, Custody or Control” Exclusion

September 30, 2019 — Garret Murai - California Construction Law Blog
When things go wrong on a construction project it’s often a scramble of finger pointing. In McMillin Homes Construction, Inc. v. National Fire & Marine Insurance Company, Case No. D074219 (June 5, 2019), the California Court of Appeals for the 4th District considered whether an additional insured exclusion, excluding “property in the care, custody or control of the additional insured,” precluded a duty to defend by an insurer. McMillin Homes Construction, Inc. v. National Fire & Marine Insurance Company McMillin Homes Construction, Inc. was the developer and general contractor on a residential project known as Auburn Lane in Chula Vista, California. McMillin subcontracted with Martin Roofing Company, Inc. to perform roofing work. Under the subcontract, Martin was required to obtain commercial general liability insurance naming McMillin as an additional insured. The commercial general liability insurance policy secured by Martin was issued by National Fire and Marine Insurance Company. As is typical, the policy covered “property damage” and “personal injury” arising out of an “occurrence” during the policy period. McMillin was covered as additional insured under ISO endorsement form CG 20 09 03 97. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel, Rosen, Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

Here's Proof Homebuilders are Betting on a Pickup in the Housing Market

April 15, 2015 — Victoria Stilwell – Bloomberg
Homebuilders have caught spring fever. Confidence among U.S. builders, measured by the National Association of Home Builders/Wells Fargo sentiment gauge, increased in April for the first time in five months. The group's measure of the sales outlook for the next six months climbed to the highest level since December, while a gauge of prospective buyer traffic also rose. With the housing market posting only middling progress in recent months, the fact that construction companies are optimistic is a good sign, especially heading into the crucial spring-selling season. The period usually starts in mid-February, with deals picking up the following months as the weather warms. What's more encouraging, though, is that builders seem to be putting money where their mouths are. Read the court decision
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Reprinted courtesy of Victoria Stilwell, Bloomberg

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