CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Court of Appeals Finds Arbitration Provision Incorporated by Reference Unenforceable

September 20, 2021 — Garret Murai - California Construction Law Blog
Subcontractors have gotten accustomed to incorporation clauses in their contracts. While an incorporation clause can incorporate any document, most typically, it’s the prime contract between the general contractor and the project owner. Subcontractors will sometimes even accept these documents sight unseen which can be a recipe for disaster. But not in the next case. In Remedial Construction Services, LP v. AECOM, Inc., Case No. B303797 (June 15, 2021), the 2nd District Court of Appeal examined whether a subcontractor was bound to an arbitration provision contained in a prime contract that was incorporated by reference into the subcontractor’s contract. In this case, it was the prime contractor who was in for a surprise. The Remedial Construction Case In 2015, Shell Oil Products US, LLC entered into a prime contract with AECOM Technical Services, Inc. for the demolition, remediation and restoration of the Gaviota oil terminal in Goleta, California. AECOM in turn entered into a subcontract with Remedial Construction Services, LP to perform portions of the work. When AECOM refused to pay Remedial for delay costs asserted by Remedial, Remedial filed suit. 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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“Time Is Money!” In Construction and This Is Why There Is a Liquidated Damages Provision

February 01, 2022 — David Adelstein - Florida Construction Legal Updates
In construction, the adage “Time is Money!” rings true for all parties involved on a project. This includes an owner of a project that wants a project completed on time, i.e., by a substantial completion date. While substantial completion is often defined as when an owner can use a project for its intended purpose, this intended purpose typically equates to beneficial occupancy (in new construction) and other factors as identified in the contract. The best mechanism for an owner to reinforce time and the substantial completion date is through a liquidated damages provision (also known as an LD provision) that includes a daily monetary rate for each day of delay to the substantial completion date. A liquidated damages provision is not designed, and should NEVER be designed, to serve as a penalty because then it would be unenforceable. Instead, it should be designed to reasonably compensate an owner for delay to the substantial completion date that cannot be ascertained with any reasonable degree of certainty at the time the contract is being negotiated and executed. (Liquidated damages are MUCH easier to prove than actual damages an owner may incur down the road.) As an owner, you don’t really want to assess liquidated damages because that means the project is not substantially completed on time. And, in reality, a timely completed and performing project should always be better and more profitable than a late and underperforming project. However, without the liquidated damages provision, there isn’t a great way to hold a contractor’s feet to the fire with respect to the substantial completion date. 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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Amendments to California Insurance Code to Require Enhanced Claims Handling Requirements for Claims Arising Out Of Catastrophic Events

September 04, 2019 — Jon A. Turigliatto, Esq. & Ravi R. Mehta, Esq. – Chapman Glucksman Dean Roeb & Barger Bulletin
Senator Bill Dodd, who represents Napa County and surrounding areas in the California Senate, has recently introduced Senate Bill 240, known colloquially as The Insurance Adjuster Act of 2019. S.B. 240 would amend the California Insurance Code to streamline and organize claim processing, particularly during a state of emergency / catastrophic events. The proposal is in response to a series of devastating wildfires which ravaged the Sonoma County and Napa Valley wine country during the 2017 fire season (Atlas, Tubbs, and Nun fires). Many of Senator Dodd’s constituents reported difficulty in navigating the claim process due to multiple claim professionals handling a single claim, many of whom were outside of California, and many of whose capabilities were challenged. S.B. 240 would direct the Department of Insurance to issue annual notices setting forth legal developments as they relate to property insurance policies, including best practices for evaluating damage caused by an emergency, and requires out-of-state claims professionals to certify, under penalty of perjury, that they have read these notices along with claim adjusting literature also prepared by the Department of Insurance. S.B. 240 would also require insurers to designate a primary point of contact for their customers during a state of emergency until the claim is closed or litigation is initiated. While the proposed legislation would not prohibit multiple claims professionals handling a single claim, it would provide for training standards issued by the Department of Insurance on how best to handle claims in a state of emergency. Further, S.B. 240 would require claims professionals who are not licensed in California (1) to be supervised by a licensed California claims professional, and (2) to read and understand the annual emergency claim adjusting literature issued by the Department of Insurance within 15 calendar days of beginning adjusting of claims in California. The bill passed the Senate by unanimous vote and is pending in the Assembly. The bill is also supported by Insurance Commissioner Ricardo Lara. Accordingly, the bill is expected to pass the Legislature. Once enacted, S.B. 240 would significantly elevate claim adjusting requirements related to emergencies, such as natural disasters, by placing greater oversight in the Department of Insurance, and greater responsibility on claims professional within and outside of California. How pragmatic these requirements are and what practical impact they will have on the industry are developments which we will follow and provide further commentary as this bill makes its way through the California legislature and into the California Insurance Code. Reprinted courtesy of Jon A.Turigliatto, Chapman Glucksman Dean Roeb & Barger and Ravi R. Mehta, Chapman Glucksman Dean Roeb & Barger Mr. A.Turigliatto may be contacted at jturigliatto@cgdrblaw.com Mr. Mehta may be contacted at rmehta@cgdrblaw.com Read the court decision
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Sinking S.F. Tower Prompts More Lawsuits

January 19, 2017 — JT Long - Engineering News-Record
Homeowners on Jan. 6 added another lawsuit to the list pending against Millennium Partners, developer of the 645-ft-tall Millennium Tower, located in San Francisco’s South-of-Market district. The suit alleges that, as early as 2009, the developers knew the $350-million condo building was sinking faster than expected. Read the court decision
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Reprinted courtesy of JT Long, ENR
ENR may be contacted at ENR.com@bnpmedia.com

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Legislatures Shouldn’t Try to Do the Courts’ Job

March 01, 2012 — CDJ STAFF

David Thamann, writing in Property Casualty 360, argues that current actions by legislatures on insurance coverage amount to “legislative interference or overreach.” He notes that under current Colorado law, “a court shall presume that the work of a construction professional that results in property damage — including damage to the work itself or other work — is an accident unless the property damage is intended and expected by the insured.” He argues that here legislators are stepping into the role of the courts. “Insureds and insurers are not always going to be pleased with a court ruling, but that is the system we have.”

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Damages or Injury “Likely to Occur” or “Imminent” May No Longer Trigger Insurance Coverage

January 05, 2017 — Masaki J. Yamada – Ahlers & Cressman PLLC
Washington Courts allow an insurer to determine its duty to defend an insured against a lawsuit based only on the face of the complaint and the limitations of the insurance policy. This is otherwise known as the “eight corners” rule (four corners of the complaint plus the four corners of the policy). In other words, the insurance company is not permitted to rely on facts extrinsic to the complaint in order to deny its duty to defend an insured. See Truck Ins. Exch. v. VanPort Homes, Inc., 147 Wn.2d 751, 763 (2002). The laws in Washington provide greater protection to the insured over the insurer when it comes to the insurer’s duty to defend. The duty to defend a claim is triggered if a claim could “conceivably” be covered under the policy. See Woo v. Fireman’s Insurance, 161 Wn.2d 43 (2007). If there is any ambiguity in a policy with regard to coverage, the ambiguity is interpreted in favor of the insured. As a result, contractors in Washington regularly tender claims or potential claims to their insurers even when damage has not occurred but will occur in the imminent future. Especially in the context of construction defect cases, a contractor will tender such a claim to its insurer to trigger the broad duty of the insurer to provide a defense. We also regularly recommend this to our contractor clients. For example, if a building owner serves a contractor with a claim that the construction and installation of a window system will imminently cause leaks and corrosion, we would recommend that the contractor tender the claim to its commercial general liability insurer. Washington courts have found a duty to defend when there are allegations in the complaint that covered damages will occur in the imminent future. Read the court decision
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Reprinted courtesy of Masaki J. Yamada, Ahlers & Cressman PLLC
Mr. Yamada may be contacted at myamada@ac-lawyers.com

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Haight has been named a Metropolitan Los Angeles Tier 1 “Best Law Firm” and Tier 2 for Orange County by U.S. News – Best Lawyers® “Best Law Firms” in 2023

November 21, 2022 — Haight Brown & Bonesteel
Haight Brown & Bonesteel LLP is listed in the U.S. News – Best Lawyers® (2023 Edition) “Best Law Firms” list with metro rankings in the following areas: Los Angeles

• Metropolitan Tier 1
• Insurance Law
• Product Liability Litigation – Defendants

Orange County

• Metropolitan Tier 2
• Product Liability Litigation – Defendants

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Reprinted courtesy of Haight Brown & Bonesteel

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Tesla Finishes First Solar Roofs—Including Elon's House

August 02, 2017 — Tom Randall - Bloomberg
First the Model 3 electric car. Now the solar roof. In just one week, Tesla has challenged two distinct industries with radically new products. Tesla has completed its first solar roof installations, the company reported Wednesday as part of a second-quarter earnings report. Just like the first Model 3 customers, who took their keys last week, the first solar roof customers are Tesla employees. By selling to them first, Tesla says it hopes to work out any kinks in the sales and installation process before taking it to a wider public audience. “I have them on my house, JB has them on his house,” Musk said, referring to Tesla’s Chief Technology Officer J.B. Straubel. “This is version one. I think this roof is going to look really knock-out as we just keep iterating.” Read the court decision
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Reprinted courtesy of Tom Randall, Bloomberg

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