CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

New Case Alert: Oregon Supreme Court Prohibits Insurer’s Attempt to Relitigate Insured’s Liability

November 17, 2016 — Austin D. Moody – Saxe Doernberger & Vita, P.C. Blog
In a big win for policyholders, the Oregon Supreme Court recently ruled that that insurance companies are not allowed to relitigate the nature of damages awarded against their insureds during an underlying trial. In a coverage dispute stemming from a contractor’s faulty work on a condominium development, the insurer argued that at least a portion of the damages awarded represented the cost of repairing the contractor’s own work product. Coverage for such damages would be explicitly excluded by the policy. However, the Oregon Supreme Court found that the jury had been instructed that it could not award damages for the contractor’s own faulty workmanship. The court declined to give the insurer a chance to attempt to reclassify the nature of these damages. Read the court decision
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Reprinted courtesy of Austin D. Moody, Saxe Doernberger & Vita, P.C.
Mr. Moody may be contacted at adm@sdvlaw.com

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A Contractual Liability Exclusion Doesn't Preclude Insurer's Duty to Indemnify

November 05, 2014 — Beverley BevenFlorez-CDJ STAFF
According to Traub Lieberman Straus & Shrewsberry LLP's blog, "[I]n Crownover v. Mid-Continent Cas. Co., 2014 U.S. App. LEXIS 20737 (5th Cir. October 29, 2014), the United States Court of Appeals for the Fifth Circuit withdrew its prior ruling and held that the contractual liability exclusion did not preclude an insurer’s duty to indemnify its insured for an award resulting from the insured’s defective construction." The case involved the Crownovers who were awarded damages for "Arrow's breach of paragraph 23.1 of the construction contract." However, Arrow then filed for bankruptcy. Mid-Continent, Arrow's insurer, denied Crownovers' demand for recovery, stating that "the contractual liability exclusion applied because the arbitrator’s award to the Crownovers was based only on Arrow’s breach of paragraph 23.1 of the construction agreement." The court agreed with Mid-Continent. Subsequently, the fifth court of appeals "reversed the district court’s ruling and awarded summary judgment in favor of the Crownovers." Read the court decision
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Builders Arrested after Building Collapses in India

July 01, 2014 — Beverley BevenFlorez-CDJ STAFF
Deaths from a building collapse in Chennai, India is currently at nineteen, while forty-two people have been rescued, according to the New York Times, and “40 others are feared trapped in the debris,” reported BBC News. The Chennai police arrested six people, “including the partners of the construction company, the architect and the structural engineer, and charged them with criminal negligence in connection with the building collapse there,” according to P. Subramniam, a Chaennai police officer, as quoted by the New York Times. "It appears they have not adhered to approved plans,” Tamil Nadu Chief Minister J Jayalalithaa told BBC News. “The building appears to have serious structural defects." Building collapses are frequent in India, and most are “blamed on lax safety and substandard materials,” reported BBC News. The New York Times pointed out that “municipal authorities rarely condemn buildings even when they appear to have dangerous defects.” Regardless, “even unsafe buildings attract people who want to live in them because the competition for shelter is fierce among millions of city residents.” Read the full story, New York Times... Read the full story, BBC News... Read the court decision
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Farewell Capsule Tower, Tokyo’s Oddest Building

April 25, 2022 — Reed Stevenson - Bloomberg
Anyone who has seen Tokyo's Nakagin Capsule Tower will remember it. Studded with grey cubes, the striking building carries an obvious architectural message: this is a modular habitat. Built half a century ago during Japan’s dizzying ascent as an economic power, the 140-unit complex has been left behind by the times, overshadowed by taller and sleeker skyscrapers that overlook the city of 14 million. Once demolition officially starts April 12, scaffolding will surround the two towers that make up the building. The capsules will then be plucked off one by one, most likely behind protective sheets of plastic because they contain asbestos. Read the court decision
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Reprinted courtesy of Reed Stevenson, Bloomberg

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City Potentially Liable for Cost Overrun on Not-to-Exceed Public Works Contract

June 29, 2017 — David R. Cook Jr. - Autry, Hanrahan, Hall & Cook, LLP
On a public works construction project, a contractor incurred additional costs and asserted a claim against the city. The city denied the claim because the contract had a not-to-exceed price, and the city council and mayor did not approve contract modifications to exceed that amount. City ordinances require approval for contract modifications and change orders exceeding ten percent of the original not-to-exceed amount. But the contractor argued that the ordinance did not apply because the excess costs did not result from a contract modification or change order. In addition, the contractor argued that, in refusing to approve an increase in the not-to-exceed amount, the city breached the implied duty of good faith and fair dealing. The court concluded that these questions were factual issues for the jury to decide. Read the court decision
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Reprinted courtesy of David R. Cook, Autry, Hanrahan, Hall & Cook, LLP
Mr. Cook may be contacted at cook@ahclaw.com

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District Court denies Carpenters Union Motion to Dismiss RICO case- What it Means

March 16, 2017 — Wally Zimolong – Supplemental Conditions
In a case that has been widely discussed on this blog, a United States federal district court Judge denied the Philadelphia Carpenters’ Union’s motion to dismiss a federal RICO case filed against it by the Pennsylvania Convention Center. Judge Nitza I. Quiñones Alejandro issued the ruling on the Union’s motion. Unfortunately, Judge Quinoses Alejandro did not issue an opinion to go along with her order. This is a bit unusual. Federal Judges routinely issue opinions (if only in footnote form) even on motion dealing with procedural issues. like discovery disputes. The lack of an opinion prevents us from knowing the Judge’s rationale for denying the motion. Therefore, the order lack precedental value for subsequent cases. However, I do not believe the order is any less significant. Potential plaintiffs now know that a federal RICO case against a union can survive a motion to dismiss. Moreover, the attorneys for the Convention Center have provided potential plaintiffs a road map for doing so. As I have stated before, the fact pattern in the Convention case is hardly unique and the tactics the Carpenters used in that case are de ri·gueur. Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

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Documenting Contract Changes in Construction

December 07, 2020 — J.D. Holzheauser - Construction Executive
Construction projects are almost inevitably subject to changes in the contract. A fundamental understanding of construction changes, how those changes are governed and what is necessary to ensure a complete change are of paramount importance to all parties involved in a construction project. This article is not a treatise on construction contract changes; rather, it provides advice on actions a contractor can take during construction that will help the contractor recover time or money when a contract’s schedule or scope of work needs to be changed. Changes Defined Changes to a construction project affect two broad spheres—timing and scope of work. Changes usually present themselves as either a change order or a change directive. Each may go by a different name depending on the contractual scheme in the project’s prime contract, but they essentially have the same characteristics. The difference between a change order and a change directive is one of agreement. A change order (in the owner-prime contractor context) occurs when the contractor and the owner agree to a change in the timing or scope of work in the contract. Normally, the change order is a written agreement to change the contract and is executed by the contractor and owner. Reprinted courtesy of J.D. Holzheauser, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Holzheauser may be contacted at jdholzheauser@pecklaw.com Read the court decision
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Prevailing HOAs Not Entitled to Attorneys’ Fees in Enforcement Actions Brought Under Davis-Stirling

August 30, 2017 — Lawrence S. Zucker II & Michael C. Parme – Haight Brown & Bonesteel LLP
In Retzloff v. Moulton Parkway Residents’ Ass’n, (2017) Cal. App. LEXIS 727, the Fourth District Court of Appeal considered the novel question of whether attorneys’ fees can be included as part of the cost award to a ‘prevailing association’ under Cal. Civ. Code §5235(c). Plaintiffs were former board members of Moulton Parkway Residents’ Association, No. One (“the Association”) who sued the Association for alleged violations of the Davis-Stirling Common Interest Development Act (Civ. Code §4000 et. seq.) which regulates the governance of common interest developments such as condominium communities and homeowners associations. Plaintiffs’ suit alleged that the Association regularly conducted business outside of scheduled board meetings and failed to make certain records available for inspection. Reprinted courtesy of Lawrence S. Zucker II, Haight Brown & Bonesteel LLP and Michael C. Parme, Haight Brown & Bonesteel LLP Mr. Zucker may be contacted at lzucker@hbblaw.com Mr. Parme may be contacted at mparme@hbblaw.com Read the court decision
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