CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

4 Breakthrough Panama Canal Engineering Innovations

October 11, 2017 — Hobbes S. Sujith - Construction Informer
Through the rainforest of Central America stretches one of the seven wonders of the modern world. It’s the mother of all shortcuts – the Panama Canal. Over 300 million tons of cargo pass through its gates every year. Stretching through the heart of the Americans, this canal has changed the face of global trade. Ships traveling between the Atlantic and Pacific used to sail thousands of kilometers around Cape Horn. So in 1879 engineers planned to cut a channel through the Isthmus of Panama. And that, was going to become the history of Panama Canal engineering. To understand how the Panama Canal can carry such a huge amount of cargo, we need to travel back in time to 17th century France. There, engineers building the Briare Canal (Canal de Briare) faced an big problem. How to make water flow up a hill? Read the court decision
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Reprinted courtesy of Hobbes S. Sujith, Construction Informer

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Florida Accuses Pool Contractor of Violating Laws

June 28, 2013 — CDJ STAFF
One customer said that after his pool was finished, he started having problems with the concrete and tiles. He’s still waiting for the $7,300 he was awarded at arbitration. Others have complained that Nationwide Pools dug up their back yards and didn’t finish the work. Construction defects were not repaired, despite promises. And even after the company stopped doing any work anywhere, they continued to charge their customers “progress payments.” The State of Florida has stepped into this, seeking restitution for homeowners who were charged for partially built or defective pools, and preventing the company officials from ever working in the pool construction industry. According to the suit, customers who complained about delays were told “a series of lies and misrepresentations about ‘supply shortages’ and ‘damaged items’ in order to string them along.” Read the court decision
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DC Wins Largest-Ever Civil Penalty in US Housing Discrimination Suit

November 15, 2022 — Kriston Capps - Bloomberg
Three real estate companies operating in Washington, DC, will pay record-breaking penalties in a suit brought by the city for illegally discriminating against tenants who use Section 8 vouchers and other forms of housing assistance. The attorney general for the District of Columbia, Karl Racine, announced on Thursday a settlement for $10 million. While fair housing cases involving lenders have resulted in larger compensation payouts, $10 million is the largest civil penalty ever levied in a housing discrimination case. In 2020, the city sued several entities — DARO Management Services, DARO Realty and New York-based parent company Infinity Real Estate, as well as several executives — over housing practices in the District. DARO Management operates and rents some 1,200 residential units in more than a dozen apartment buildings spread across Wards 1, 2 and 3, which include DC’s more affluent areas. (DARO Realty owns the properties, DARO Management operates them, and Infinity owns both affiliates.) Read the court decision
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Reprinted courtesy of Kriston Capps, Bloomberg

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Power of Workers Compensation Immunity on Construction Project

November 30, 2017 — David Adelstein - Florida Construction Legal Updates
On construction projects, workers compensation immunity is real and it is powerful. (See also this article.) Workers compensation immunity is why all general contractors should have workers compensation insurance and they should ensure the subcontractors they hire have workers compensation insurance. Workers compensation insurance becomes the exclusive form of liability for an injured worker thereby immunizing an employer (absent an intentional tort, which is very hard to prove as a means to circumvent workers compensation immunity). If a general contractor, with workers compensation insurance, hires a subcontractor without workers compensation insurance, the general contractor’s workers compensation insurance will be responsible in the event an injury occurs to a subcontractor’s employee. The general contractor becomes the statutory employer. 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

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Revisiting Termination For Convenience Clauses In Uncertain And Ever-Changing Economic Times

February 27, 2023 — Adam M. Tuckman & Brittney M. Wiesner - ConsensusDocs
In these times of persistent inflationary forces and efforts to tame the consequences through rising interest rates, economic uncertainty abounds in the United States and around the world. As an approximately $1 trillion contributor to the economy in the United States (4.2% of GDP in 2021) alone according to the Associated General Contractors of America, the health and the growth of the construction industry is certainly susceptible to these rapidly changing macroeconomic conditions. Presently, an unanswered question is how project developers will react to unpredictable fluctuations in project costs and interest rates. Although it seems unlikely to be a prevalent response, it is possible that substantial increases in borrowing, labor, or material costs would cause owners to pull the plug on projects that are in the advanced stages of construction. For projects in the nascent stages of development or construction, however, the calculous for owners becomes more tenuous. Both public and private owners may find it more prudent to indefinitely suspend or cancel pending or ongoing projects due to any, or a combination of, forecasted increases in project costs, shrinking funding, higher borrowing costs, or macro-economic uncertainty. Facing this quandary, how would an owner already under contract with a constructor and design team suspend or cancel its project? One potential approach is to invoke a termination for convenience clause found in the parties’ contract. Reprinted courtesy of Adam M. Tuckman, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs) and Brittney M. Wiesner, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs) Mr. Tuckman may be contacted at atuckman@watttieder.com Read the court decision
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When is Construction Put to Its “Intended Use”?

July 31, 2013 — Brady Iandiorio, Higgins, Hopkins, McLain & Roswell, LLC
Defining words and phrases in the law can be a tricky proposition. In everyday life one would presume to know what the phrase “intended use” would mean, but when it comes to litigation, oftentimes the definitions become much more nuanced. On March 12, 2013, in the Bituminous Cas. Corp. v. Hartford Cas. Ins. Co. v. Canal Ins. Co., WL 950800 (D. Colo. 2013) case, Senior District Court Judge Wiley Y. Daniel denied Third-Party Defendant Canal Insurance Company’s (“Canal”) motion to dismiss Third-Party Plaintiff Hartford Casualty Insurance Company’s (“Hartford”) third-party complaint. The case arose out of a liability insurance coverage dispute related to an underlying construction defect lawsuit. In the construction defect suit, a plaintiff homeowner’s association brought a suit against a developer and a general contractor (“GC”) among others. While the underlying action was settled, a dispute remained between Bituminous Casualty Corporation, which insured the GC, and Hartford, which insured the developer. Hartford asserted third-party claims against Canal seeking a declaration of Canal’s obligations and contribution in the event Hartford owed any defense or indemnity obligations to the GC. Hartford’s claims are based on the premise that Canal owed a duty to defend and/or indemnify the GC in the underlying action. Read the court decision
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Reprinted courtesy of Brady Iandiorio
Brady Iandiorio can be contacted at Iandiorio@hhmrlaw.com

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Mississippi Supreme Court Addresses Earth Movement Exclusion

December 09, 2019 — Anthony Hatzilabrou - Traub Lieberman
Recently, the Mississippi Supreme Court held that structural damages to the foundation of an insured’s home came within the earth movement exclusion in a homeowner’s policy, notwithstanding a provision in the policy which provided coverage for water damage resulting “from accidental discharge or overflow of water … from within … [p]lumbing, heating, air condition or household appliance.” In Mississippi Farm Bureau Cas. Ins. Co. v. Smith, 264 So. 3d 737 (Miss. 2019), the appellee, Smith, filed a lawsuit against her homeowner's insurance company, Mississippi Farm Bureau Casualty Insurance Company (“Farm Bureau”) for its refusal to pay for repairs to the foundation of Smith’s home. Smith alleged that the refusal to pay for repairs amounted to breach of contract and asserted claims for bad faith and tortious breach of contract. In response, Farm Bureau filed a motion for summary judgment on the basis of the policy’s earth-movement exclusion, which provided that Farm Bureau “did not insure for loss caused directly or indirectly by…Earth Movement…[which] means…[a]ny other earth movement including earth sinking, rising or shifting... caused by or resulting from human or animal forces.” Smith filed a cross-motion for partial summary judgment on the basis that the earth-movement exclusion did not preclude coverage because her insurance policy also contained a clause expressly covering water damage. Read the court decision
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Reprinted courtesy of Anthony Hatzilabrou, Traub Lieberman
Mr. Hatzilabrou may be contacted at thatzilabrou@tlsslaw.com

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Is There a Conflict of Interest When a CD Defense Attorney Becomes Coverage Counsel Post-Litigation?

September 01, 2011 — Chad Johnson of Higgins, Hopkins, McLain & Roswell, LLC

In Weitz Co., LLC v. Ohio Cas. Ins. Co., the U.S. District Court for the District of Colorado was asked to rule on a motion to disqualify counsel in an insurance coverage action. 11-CV-00694-REB-BNB, 2011 WL 2535040 (D. Colo. June 27, 2011). Motions to disqualify counsel are viewed with suspicion, as courts “must guard against the possibility that disqualification is sought to ‘secure a tactical advantage in the proceedings.’” Id. at *2 (citing Religious Technology Center v. F.A.C.T. Net, Inc., 945 F. Supp. 1470, 1473 (D. Colo. 1996).

Weitz Company, LLC (“Weitz”) is a general contractor and defendant in an underlying construction defect suit which had concluded before the action bringing rise to this order. In the underlying action, Weitz made third-party claims against subcontractors, including NPW Contracting (“NPW”). Weitz was listed as an additional insured under NPW’s policies with both Ohio Casualty Insurance Company and Mountain States Mutual Casualty Company (collectively “the Carriers”). The Carriers accepted Weitz’s tender of defense under a reservation of rights. However, neither insurance carrier actually contributed to Weitz’s defense costs in the underlying action. At the conclusion of the construction defect action, the parties unsuccessfully attempted to apportion the attorney’s fees and costs. Eventually, Weitz brought suit against the recalcitrant carriers. The Lottner firm, which had previously represented Weitz in the underlying construction defect action, continued to represent Weitz in this coverage action. 

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Reprinted courtesy of Higgins, Hopkins, McLain & Roswell, LLC. Mr. Johnson can be contacted at johnson@hhmrlaw.com

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