CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Alleging and Proving a Florida Deceptive and Unfair Trade Practices Act (FDUTPA) Claim

December 13, 2021 — David Adelstein - Florida Construction Legal Updates
When it comes to construction disputes, a Florida Deceptive and Unfair Trade Practices Act (known by its acronym “FDUTPA”) claim is not commonly asserted. A FDUTPA claim is a statutory claim under Florida Statute s. 501.201 en seq. This claim is NOT easy to prove, particularly in the construction context. Sometimes, a party will assert a FDUTPA claim to create a basis for attorney’s fees; however, that basis cuts BOTH ways, i.e., you can be liable for fees if you fail to prove the FDUTPA claim. In a construction dispute, a FDUTPA claim is one that really should be pled with caution after a party understands and fully considers what it MUST prove including the all-important consideration of how actual damages are determined under FDUTPA, which requires an actual loss. Nevertheless, it is good to know what you need to prove to support a FDUTPA claim in case you believe you have facts that can support a FDUTPA claim and actual damages under FDUTPA (known as benefit-of-the-bargain damages). Reprinted courtesy of David Adelstein, Kirwin Norris, P.A. Mr. Adelstein may be contacted at dma@kirwinnorris.com Read the full story... Read the court decision
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Toll Brothers Faces Construction Defect Lawsuit in New Jersey

October 10, 2013 — CDJ STAFF
Toll Brothers is facing a construction defect lawsuit from homeowners in West Windsor, New Jersey. The homebuilding company had a lengthy battle with the town over its intention to build the community they named the Estates at Princeton Junction, now its residents are alleging defects in the construction of their homes and the common infrastructure. The community is close to Princeton University, parts of which are also in West Windsor. Toll Brothers states that they are “working very closely with the HOA Board to investigate the claims that have been alleged in the lawsuit.” Andrea Marushack, the spokesperson for Toll Brothers would not elaborate due to the lawsuit. Among the allegations are claims that the townhomes in the development are prone to water intrusion. The complaint also claims that there were defects in the construction of sidewalks, roads, and other common features. Read the court decision
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Reports of the Death of SB800 are Greatly Exaggerated – The Court of Appeal Revives Mandatory SB800 Procedures

September 03, 2015 — Steven M. Cvitanovic & David A. Harris – Haight Brown & Bonesteel LLP
In a 20 page opinion, the Court of Appeal for the Fifth District repudiated the holding of Liberty Mutual Insurance Co. v. Brookfield Crystal Cove, LLC (2013) 219 Cal.App.4th 98 (“Liberty Mutual”), and held that plaintiffs in construction defect actions must comply with the statutory pre-litigation inspection and repair procedures mandated by SB800 (the “Act”) regardless of whether they plead a cause of action for violation of the Act. The Case, McMillin Albany LLC v. Superior Court (Carl Van Tassell), (Ct. of Appeal F069370) breathes new life into the Act’s right to repair requirements, and reinforces the Act’s stated purpose of seeking to limit the number of court cases by allowing a builder to resolve construction defect claims by agreeing to repair the homeowners’ residence. In McMillin, 37 homeowners filed a lawsuit against McMillin, the builder of their homes, alleging eight causes of action, including strict products liability, negligence, and breach of express and implied warranty. Plaintiffs’ third cause of action alleged violations of the Act. The plaintiffs did not follow the Act’s notification procedures and filed their lawsuit without providing McMillin with an opportunity to repair the alleged defects. Plaintiffs and McMillin attempted to negotiate a stay of the lawsuit to complete the Act’s prelitigation procedures. When talks broke down, plaintiffs dismissed the third cause of action and contended they were no longer required to follow the Act’s prelitigation procedures. McMillin filed a motion to stay with the trial court. The trial court denied McMillin’s motion concluding that under Liberty Mutual, “[plaintiffs] were entitled to plead common law causes of action in lieu of a cause of action for violation of the building standards set out in [the Act], and they were not required to submit to the prelitigation process of the Act when their complaint did not allege any cause of action for violation of the Act.” Reprinted courtesy of Steven M. Cvitanovic, Haight Brown & Bonesteel LLP and David A. Harris, Haight Brown & Bonesteel LLP Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com Mr. Harris may be contacted at dharris@hbblaw.com Read the court decision
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Haight Brown & Bonesteel Ranked on the 2017 "Best Law Firms" List by U.S. News - Best Lawyers

November 10, 2016 — Haight Brown & Bonesteel LLP
U.S. News – Best Lawyers® ranked Haight Brown & Bonesteel on the 2017 “Best Law Firms” list in the Metropolitan Tier 1 Ranking in Los Angeles for their defense work in insurance law and personal injury litigation. Read the court decision
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Construction Termination Part 2: How to Handle Construction Administration When the Contractor Is Getting Fired

August 01, 2023 — Melissa Dewey Brumback - Construction Law in North Carolina
If you’ve been working as a design professional for any length of time, you know that you must be a chameleon on the construction project. You need to “step into the skin” of both the Owner and the Contractor to determine who is at fault, and who should pay. You are usually the Initial Decision Maker (IDM), and so you have a duty under the AIA documents to act fairly and impartially in making those decisions. See AIA B101§3.6.2.4. Even if you are not under an AIA contract, you still have that duty if you are the IDM or handling construction administration for the project. More often than not, however, it will be the owner asking you to support its termination of the contractor “for cause.” Should you do so? Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Ragsdale Liggett
Ms. Brumback may be contacted at mbrumback@rl-law.com

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When an Intentional Act Results in Injury or Damage, it is not an Accident within the Meaning of an Insurance Policy Even When the Insured did not Intend to Cause the Injury or Damage

June 06, 2022 — Gary L. LaHendro - Haight Brown & Bonesteel LLP
In Maryam Ghukasian v. Aegis Security Insurance Company (No. B311310, filed April 14, 2022, and certified for publication on May 5, 2022), the Court of Appeal of the State of California, Second Appellate District held that Maryam Ghukasian’s insurer, Aegis Security Insurance Company (“Aegis”), had no duty to defend her in an underlying lawsuit alleging she cleared land and cut trees on her neighbors’ property without their consent. The appellate court explained Ms. Ghukasian’s acts of intentionally cutting the trees and clearing the land were not accidental for purposes of insurance coverage, even if she acted on the good faith but mistaken belief the trees were on her property. Ms. Ghukasian owns a home in Glendale, California. She purchased a homeowner’s insurance policy from Aegis for the policy period of June 13, 2018 to June 13, 2019 (the “Aegis Policy”). In August 2018, Ms. Ghukasian hired a contractor to clear and cut trees she believed were on her property. However, the trees were on the property of her neighbors, Vrej and George Aintablian. Read the court decision
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Reprinted courtesy of Gary L. LaHendro, Haight Brown & Bonesteel LLP
Mr. LaHendro may be contacted at glahendro@hbblaw.com

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Best Practices: Commercial Lockouts in Arizona

March 19, 2024 — Patrick Tighe - Snell & Wilmer Real Estate Litigation Blog
If a tenant defaults under a commercial lease, Arizona law permits the landlord to re-take possession of the premises by locking out the defaulting tenant. However, if the landlord’s lockout is wrongful, the landlord may be liable for the damages the tenant sustains because of the wrongful lockout. To minimize such liability, here are some general best practices to follow when locking out a defaulting tenant:

• Do Not Breach the Peace. It is vital when performing a lockout to not breach the peace. What constitutes a “breach of the peace” depends on the particular circumstances at hand. For example, if a tenant arrives during the lockout and becomes angry or threatens violence, the landlord should stop performing the lockout and return at a later time. As a general rule of thumb, it is best to perform lockouts in the early morning hours or in the late evening hours when the landlord is less likely to encounter the tenant.
• Provide A Notice of Default. Many commercial leases require the landlord to provide a notice of default before the landlord can lock out a defaulting tenant. Check, double check, and triple check that the landlord followed the lease’s notice of default provisions correctly, including that the landlord sent the notices to all required parties in accordance with the time requirements set forth in the lease.

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Reprinted courtesy of Patrick Tighe, Snell & Wilmer
Mr. Tighe may be contacted at ptighe@swlaw.com

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Jury Convicts Ciminelli, State Official in Bid-Rig Case

August 14, 2018 — Engineering News-Record
After a four-week trial but with less than two days of deliberation, a Manhattan federal jury convicted Louis Ciminelli, former head of the now-defunct Buffalo, N.Y., contractor LPCiminielli, and Alain Kaloyeros, the fired ex-head of SUNY Polytechnic Institute in Albany, N.Y., of fraud and conspiracy in a scheme to rig bids on a $750-million upstate New York manufacturing project. Read the court decision
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Reprinted courtesy of Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com

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