Cambridge Massachusetts Building Expert Directory

Lenders and Post-Foreclosure Purchasers Have Standing to Make Construction Defect Claims for After-Discovered Conditions

August 12, 2013 — W. Berkeley Mann, Jr. - Higgins, Hopkins, McLain & Roswelll, LLC
The Colorado Court of Appeals has decided a case which answers a question long in need of an answer: do banks/lenders have standing to assert construction defect claims when they receive title to a newly-constructed home following a foreclosure sale or deed-in-lieu of foreclosure? The decision was released on August 1, 2013, in the case of Mid Valley Real Estate Solutions V, LLC v. Hepworth-Pawlack Geotechnical, Inc., Steve Pawlak, Daniel Hadin, and S K Peightal Engineers, Ltd. (Colorado Court of Appeals No. 13CA0519). The background facts of the case are typical of a Colorado residential construction defect case generally. A developer contracted for an analytical soil engineering report from a geotechnical engineering firm (H-P) which made a foundation recommendation. The developer’s general contractor then retained an engineering firm (SPKE) to provide engineering services, including a foundation design. The general contractor built the foundation in accordance with the H-P and SPKE criteria and plans. The house was not sold by the developer and went into default on the construction loan. These events resulted in a deed-in-lieu of foreclosure to a bank-controlled entity which purchased the house for re-sale. Shortly after receiving the developer’s deed, the bank-related entity discovered defects in the foundation that resulted in a construction defect suit against the two design firms and related individuals. Read the court decision
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Reprinted courtesy of W. Berkeley Mann, Jr.
W. Berkeley Mann, Jr. can be contacted at mann@hhmrlaw.com

Sometimes You Just Need to Call it a Day: Court Finds That Contractor Not Entitled to Recover Costs After Public Works Contract is Invalidated

June 29, 2020 — Garret Murai - California Construction Law Blog
January was a tough month in the courts for Hensel Phelps Construction Company. Hot off the heels of Hensel Phelps Construction Co. v. Superior Court, a case concerning the 10-year statute of limitations under Civil Code section 941, comes Hensel Phelps Construction Co. v. California Department of Corrections and Rehabilitation, Case No. B293427 (January 28, 2020), a bid dispute case . . . The Tale of a Bid, a Bid Protest, and Two Cases A. The Bid and Bid Protest On March 15, 2015, the California Department of Corrections and Rehabilitation (CDCR) issues an Invitation for Bid for the HVAC project at the Ironwood State Prison. The deadline to submit bids was April 30, 2015. Hensel Phelps Construction Co. submitted a timely bid and was determined to be the “apparent low bidder” with a bid of $88,160,000. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

Economic Loss Doctrine Bars Negligence Claim Against Building Company Owner, Individually

October 20, 2016 — Michael L. DeBona – The Subrogation Strategist
In Beaufort Builders, Inc. v. White Plains Church Ministries, Inc., 783 S.E.2d 35 (N.C. Ct. App. 2016), the Court of Appeals of North Carolina addressed whether the economic loss rule barred the negligence claim of White Plains Church Ministries, Inc. (White Plains) against Charles F. Cherry (Cherry), the owner of Beaufort Builders, Inc. (Beaufort Builders). The court held that, because the economic loss rule would bar White Plains’ negligence claims against Beaufort Builders, White Plains could not pursue a third-party negligence claim against Cherry, individually. Read the court decision
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Reprinted courtesy of Michael L. DeBona, White and Williams LLP
Mr. DeBona may be contacted at debonam@whiteandwilliams.com

A Year Later, Homeowners Still Repairing Damage from Sandy

October 01, 2013 — CDJ STAFF
The New York and New Jersey coastal communities are still in the thick of rebuilding and repairing after hurricane Sandy struck almost a year ago. Newsday reports that in the eight months following the October 2012 storm, more than 23,000 building permits were issued in Long Island communities, an 11 percent rise over the previous year. The town of Long Beach, New York has waived fees and hired more staff in order to encourage people to rebuild, in order to rebuild the town’s tax base. Homeowners aren’t going it alone, New York expects to fund more than $1 billion of rebuilding for homeowners who are unable to afford repairing their homes. At this point, the state is still processing more than five thousand requests for grants. The money is still in the state’s coffers. Other homeowners are still filing insurance claims. While towns are busy issuing building permits, contractors are busy too. Bill Sims of Sims Steel said that his business has changed from commercial construction to raising homes higher to put them above future floods. “There’s probably been more homes raised this last year than in the previous 20 years,” he told Newsday. Another contractor, Pat Gordon said that he is “only taking what we can handle.” He described Long Beach as “a traffic jam of construction trucks that has never been seen before.” Read the court decision
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Texas Supreme Court Holds Anadarko’s $100M Deepwater Horizon Defense Costs Are Not Subject To Joint Venture Liability Limits

February 27, 2019 — Sergio F. Oehninger & Michael S. Levine - Hunton Andrews Kurth
Reversing a Texas Court of Appeals decision that allowed Anadarko’s Lloyd’s of London excess insurers to escape coverage for more than $100 million in defense costs incurred in connection with claims from the Deepwater Horizon well blowout, the Supreme Court of Texas held that the insurers’ obligations to pay defense costs under an “energy package” liability policy are not capped by a joint venture coverage limit for “liability” insured. Anadarko Petroleum Corp. et al. v. Houston Casualty Co. et al., No. 16-1013 (Tex. Jan. 25, 2019). While the Lloyd’s of London insurers had agreed to pay Anadarko $37.5 million for damages, they declined to cover $100 million-plus in defense fees, arguing that both Anadarko’s liability and defense expenses are subject to the $37.5 million joint venture limit for “liability” insured. Anadarko asserted that only amounts paid as damages to third parties are subject to that limit. Defense costs, however, are not amounts paid as damages to a third party and, thus, are not a “liability.” Those amounts, therefore, are not subject to the joint venture limit and are instead subject to the policy’s $150 million coverage limit. Reprinted courtesy of Sergio F. Oehninger, Hunton Andrews Kurth and Michael S. Levine, Hunton Andrews Kurth Mr. Oehninger may be contacted at soehninger@HuntonAK.com Mr. Levine may be contacted at mlevine@HuntonAK.com Read the court decision
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BWB&O’s Los Angeles Office Obtains Major Victory in Arbitration!

July 25, 2022 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Bremer Whyte Brown & O’Meara Partner Patrick Au and Senior Associate Theresa Mallen recently achieved a major victory in binding Arbitration. The subject action involved a construction project in the backyard of homeowner’s residence. Homeowner maintained that BWB&O’s contractor client abandoned the project. Furthermore, homeowner alleged that the work performed by BWB&O’s client was deficient. The primary construction defect claim is that the pool deck is not properly sloped which is preventing surface water from running off the top of the retaining wall as designed. The Arbitrator ultimately sided with BWB&O’s client finding that BWB&O’s client did not abandon the project, but rather was terminated by homeowner. Additionally, BWB&O successfully proved that despite the fact that the three pertinent elevations that determine the slope of the concrete pool slab were pre-established before BWB&O’s client even got on the project, that BWB&O’s client properly installed the concrete pool slab and would have established the necessary slope of the pool deck had it not been terminated from the project. Homeowner asserted many other secondary construction defect claims and the Arbitrator found in BWB&O’s client’s favor on each and every issue. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

Coverage, Bad Faith Upheld In Construction Defect Case

October 26, 2017 — Tred R. Eyerly - Insurance Law Hawaii
The California Court of Appeal affirmed the trial court's finding of coverage for faulty workmanship allegations and bad faith by the insurer. Pulte Home Corp. v. Am Safety Indem. Co., 2017 Cal. App. LEXIS 748 (Cal. Ct. App. Aug. 30, 2017). Pulte Home Corporation was the general contractor and developer of two residential projects. American Safety issued several sequential comprehensive general liability policies to three of Pulte's subcontractors which named Pulte as an additional insured. The projects were completed by 2006. 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

Seller Faces Federal Charges for Lying on Real Estate Disclosure Forms

October 02, 2015 — Beverley BevenFlorez-CDJ STAFF
Homeowners Glenn and Kathryn Jasen allegedly mislead buyers Kelly Magbee and family when they checked “no” on questions regarding sinkhole activity on real estate disclosure forms, according to On Your Side News. Furthermore, “Citizens Property Insurance Co. failed to file a sinkhole certification on a Spring Hill home in 2009. The company slipped the form into county records five years later- in Sept. 2014 – after questions from 8 On Your Side.” If the insurance company had filed the sinkhole documentation, then the Magbees would have been told about the sinkhole prior to the purchase of the home. According to On Your Side News, Magbee and family moved out of the home “after a crack opened in the living room.” Read the court decision
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