Cambridge Massachusetts Building Expert Directory

Houston Office Secures Favorable Verdict in Trespass and Nuisance Case Involving Subcontractor’s Accidental Installation of Storm Sewer Pipe on Plaintiff’s Property

June 12, 2023 — Lewis Brisbois Newsroom
Houston, Texas (May 26, 2023) - Houston Partners Joelle Nelson and Matt Begley secured a defense verdict on behalf of a gasoline services company following a four-day trial in the 284th District Court of Montgomery County, Texas. In this case, Lewis Brisbois represented a client who hired a contractor to install a storm sewer line to mitigate flood risks to the client’s property. The contractor, however, deviated from the engineering plans and installed the storm sewer line on a neighboring property owned by the plaintiff. The storm sewer line then remained on the plaintiff’s property for five years while the parties attempted to negotiate potential solutions to the situation. The plaintiff refused multiple reasonable settlement attempts and ultimately sued the client and the contractor for continuous trespass and private nuisance. The contractor’s carrier denied coverage, making the client the target defendant. The matter proceeded to trial. Read the court decision
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Reprinted courtesy of Lewis Brisbois

Tennessee Court: Window Openings Too Small, Judgment Too Large

November 18, 2011 — CDJ STAFF

The Tennessee Court of Appeals has issued a ruling in the case of Dayton v. Ackerman, upholding the decision of the lower court, even as they found that the award was incorrectly computed. The Daytons purchased a house that had been designed and built by the Ackermans, who operated a construction business. The court noted that the warranty with the house promised that “for a period of 60 days, the following items will be free of defects in materials or workmanship: doors (including hardware); windows; electric switches; receptacles; and fixtures; caulking around exterior openings; pluming fixtures; and cabinet work.”

Soon, the Daytons began to experience problems with the house. Many were addressed by the Ackermans, but the Daytons continued to have problems with the windows. Neither side could specify a firm date when the Ackermans were contacted by the Daytons about the window problems. The Ackermans maintained that more than two years passed before the Daytons complained about the windows. The lower court found the Daytons more credible in this.

Initially, the Daytons included the window manufacturer in their suit, but after preliminary investigations, the Daytons dropped Martin Doors from their suit. Martin Doors concluded that the windows were improperly installed, many of them “jammed into openings that were too small for them.”

After the Daytons dismissed Martin Doors, the Ackermans sought to file a third party complaint against them. This was denied by the court, as too much time had elapsed. The Ackermans also noted that not all of the window installations were defective, however, the courts found that the Daytons ought not to have mismatched windows.

Unfortunately for the Daytons, the window repair was done incorrectly and the windows were now too small for the openings. The firm that did the repair discounted the windows and Daytons concealed the problem with plantation shutters, totalling $400 less than the original lowest estimate. However, the appeals court noted that it was here that the trial court made their computation error. Correcting this, the appeals court assessed the Ackermans $12,016.20 instead of $13,016.20.

Finally, the Ackerman’s expert was excluded as he had changed his testimony between deposition and trial. The trial reviewed the expert’s testimony and had it been admissible, it would not have changed the ruling.

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The Utility of Arbitration Agreements in the Construction Industry

December 30, 2019 — Brian L. Gardner & Jason R. Finkelstein - Construction Executive
In today’s ever-evolving world of employment law, it is far from an easy task for construction industry employers to operate their business while successfully navigating all of the potential legal potholes that continue to abound and multiply seemingly with every passing day. This is particularly true in the face of the onslaught of claims lodged by current and former employees in recent years for alleged unpaid wages. While there may not be a “sure bet” way of avoiding such claims, one tool that employers should strongly consider in their arsenal are arbitration and class action waiver agreements. To that end, last year, the United States Supreme Court rendered its ground-breaking decision in Epic Systems Corp. v. Lewis, 584 U.S. ___ (2018). In Epic Systems, the Supreme Court held that arbitration agreements containing class and collective action waivers of wage and hour disputes are enforceable. At the time of the decision, a split of authority existed among courts across the country as to whether such agreements were viable. On the one hand, several courts contended that class waivers unfairly violated employees’ rights to collectively bargain under the National Labor Relations Act. On the other hand, many other courts were finding that such agreements were fully enforceable and supported by the policies promoted under the Federal Arbitration Act. The Epic Systems Court sided with this latter viewpoint, concluding that the FAA’s clear policy promoting arbitration as a dispute resolution mechanism and private parties’ rights to freely negotiate contracts outweighed any potential arguments against such agreements under the NLRA. With wage and hour lawsuits being filed against construction industry employers practically daily, the Epic Systems decision is critically important. Construction employers can now freely enter into arbitration and class waiver agreements with their laborers and thereby potentially limit the cost, expense and exposure of fighting such actions in a public forum on a collective or class-wide basis. To be clear, such agreements will not eliminate employees from bringing such wage and hour claims entirely, nor should the use of those agreements signal to employers that they need not make every good-faith effort to comply with their obligations under the Federal Labor Standards Act and/or any applicable state wage and hour laws. But the reality is that arbitration and class waiver agreements can work to avoid tens or hundreds or even thousands of employees from banding together in some of the massive wage and hour lawsuits being filed across the country. Instead, employers can require that those legal battles be conducted by a single plaintiff in a more controlled environment before an arbitrator (or panel of arbitrators). Reprinted courtesy of Brian L. Gardner & Jason R. Finkelstein, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Gardner may be contacted at bgardner@coleschotz.com Mr. Finkelstein may be contacted at jfinkelstein@coleschotz.com Read the court decision
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Loss Caused by Theft, Continuous Water Discharge Not Covered

September 17, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The insured's claim for loss based on theft and water leaks was not covered under the property policy. SJP Props. v. Mount Vernon Fire Ins. Co., 2015 U.S. Dist. LEXIS 97216 (E.D. Mo. July 27, 2015). SJP Properties bought and sold foreclosed properties. On July 13, 2006, it purchased at a foreclosure sale a property in St. Louis. The property was not inspected before or after the purchase, and sat vacant for more than two years. No one checked regularly on the property. The property was insured under a commercial property policy issued by Mount Vernon, effective from March 8, 2006 to March 8, 2009. The policy covered vandalism, but excluded loss caused by theft. An exception for the exclusion provided coverage for "building damage caused by the breaking in or exiting of burglars." The policy also excluded loss or damage caused by fungus, wet rot, dry rot and bacteria or water leaks for a period of 14 days or more. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Bad News for Buyers: U.S. Mortgage Rates Hit Highest Since 2014

February 22, 2018 — Prashant Gopal – Bloomberg
Shanne Sleder, a San Diego mortgage banker, recently had to break the bad news to some would-be homebuyers: Borrowing costs jumped about 6 percent since he pre-approved them a couple months ago. Read the court decision
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Reprinted courtesy of Prashant Gopal, Bloomberg

Home Prices in 20 U.S. Cities Increased 4.3% in November

January 28, 2015 — Victoria Stilwell – Bloomberg
(Bloomberg) -- Home prices in 20 U.S. cities rose at a slower pace in the year ended in November, a sign the industry struggled to find momentum even amid low mortgage rates. The S&P/Case-Shiller index of property values increased 4.3 percent from November 2013 after rising 4.5 percent in the year ended in October, the group said Tuesday in New York. The median projection of 28 economists surveyed by Bloomberg called for a 4.3 percent year-over-year advance. Nationally, prices rose 4.7 percent after a 4.6 percent gain in the year ended in October. Read the court decision
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Reprinted courtesy of Victoria Stilwell, Bloomberg
Ms. Stilwell may be contacted at vstilwell1@bloomberg.net

Does Article 2 of the Uniform Commercial Code Impact Your Construction Project?

November 07, 2022 — Chris Cazenave - ConsensusDocs
The Uniform Commercial Code (UCC) is a set of statutes governing commercial transactions. Every state has adopted the UCC or some version of it. Understanding when and how the UCC applies to construction contracts is important because it can affect the agreement’s terms. Article 2 of the UCC applies to the sales of goods, which the UCC defines very broadly to mean “all things (including specialty manufactured goods) which are movable . . . other than money in which the price is to be paid . . . .” UCC § 2-105. For the construction industry, UCC Article 2 governs most, if not all, purchases of materials and equipment installed or incorporated into the project. As a result, contractors and subcontractors should be familiar with the circumstances under which Article 2 may apply and how it may affect the project. This article provides a brief overview of when Article 2 may affect your construction project and why it matters. The article also generally covers the UCC’s potential effects on the applicable statute of limitations, implied warranties, and when the obligation to make the payment arises. Read the court decision
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Reprinted courtesy of Chris Cazenave, Jones Walker LLP (ConsensusDocs)
Mr. Cazenave may be contacted at ccazenave@joneswalker.com

What to Do Before OSHA Comes Knocking

December 19, 2018 — Parker Rains - Construction Executive
Every year, the U.S. Occupational Safety and Health Administration (OSHA) inspects workplaces around the country for safety and occupational hazards. In 2017 alone, OSHA conducted 32,408 inspections – more than half of which were unprogrammed inspections. There are six reasons OSHA might come knocking on the door. They are (in order of priority):

imminent danger situations;
severe injuries and illnesses;
worker complaints;
referrals;
targeted inspections; and
follow-up inspections.

Reprinted courtesy of Parker Rains, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Rains may be contacted at prains@fbbins.com

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