Cambridge Massachusetts Construction Expert Witness Directory

Breach of Contract Exclusion Bars Coverage for Construction Defect Claim

March 19, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The court determined the policy's breach of contract exclusion precluded coverage for a claim against the general contractor insured for construction defects. Mt. Hawley Ins. Co. v. McAtamncy, 2024 U.S. Dist. LEXIS 497 (N. D. Cal. Jan. 2, 2024). McAtamney, a general contractor dong business as Kilrea Construction, was hired by Jeffrey Horowitz for a home-renovation project. After completion of the project, Horowitz discovered defects in the work. He filed a complaint alleging that Kilrea breached obligations to construct and complete the work in an expeditious and workmanlike manner, free from any faults and defects. He brought claims for breach of contract, breach of implied warranty, negligence, neglignet supervision, and declaratory relief. Kilrea's insurer, Mt. Hawley, agreed to defend, but reserved the right to later deny coverage for any uncovered claims. The breach of contract exclusion provided there was no duty to defend a claim for property damage arising from breach of an express or implied contract or warranty. Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Courthouse Reporter Series: Two Recent Cases Address Copyright Protection for Architectural Works

January 16, 2024 — Stu Richeson - The Dispute Resolver
Recent decisions by the Seventh Circuit and the Eight Circuit have addressed the scope of protection afforded to architectural works under copyright law. The Seventh Circuit case of Design Basics, LLC v. Signature Constr., Inc., 994 F.3d 879 (7th Cir. 2021), took a somewhat narrow view of the copyright protection afforded to the design of an “affordable, multipurpose, suburban, single-family home.” In Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., 9 F.4th 803 (8th Cir. 2021), cert. denied, 142 S. Ct. 2888, 213 L. Ed. 2d 1103 (2022) the Eight Circuit held that the publication of floor plans of a house in a real estate listing was not protected from claims of copyright infringement. Design Basics, LLC v. Signature Constr., Inc., involved a plaintiff that the court described as holding registered copyrights in thousands of floor plans for suburban, single-family homes that are basic schematic designs, largely conceptual in nature, and depict layouts for one- and two-story single-family homes that include the typical rooms: a kitchen, a dining area, a great room, a few bedrooms, bathrooms, a laundry area, a garage, stairs, assorted closets, etc. The court described the plaintiff as a “copyright troll” and noted that litigation proceeds had become the principal revenue stream for the plaintiff. The plaintiff sued a contractor and related businesses contending hat the defendants had infringed plaintiff’s copyrighted floor plans. Read the full story...
Reprinted courtesy of Stu Richeson, Phelps
Mr. Richeson may be contacted at stuart.richeson@phelps.com

It Pays to Review the ‘Review the Contract Documents’ Clause Before You Sign the Contract

March 11, 2024 — Alan Winkler - ConsensusDocs
It is fairly common for a construction contract to include a provision requiring the contractor to perform some level of review of the plans and specifications and perhaps other contract documents as part of their responsibilities. Typically, this provision is found in a section of the contract on the contractor’s responsibilities, although it can be anywhere. Owners and contractors are, with reason, focused on three main issues in reviewing contracts: (1) price, costs, and payments, (2) time and scheduling, and (3) scope of the work. Eyes may glaze over the contractor’s responsibilities section. Not only does it seem to be boilerplate, but industry professionals know what a contractor is supposed to do; in a nutshell, build the project. An old school type of contractor may regard this role as strictly following the plans and specifications, no matter what they provide. That could lead to a situation where construction comes to a complete stop because, for example, two elements are totally incompatible with each other. If that happens, the contractor would then turn to the owner and architect to ask for a corrective plan and instructions on how to proceed. That may also be accompanied by a request for more time and money while the problem is resolved. The ‘review the contract documents’ clause is designed to avoid this. It is intended to address an understanding that everyone makes mistakes, even architects and engineers whose job it is to design a buildable, functional project. The clause also addresses the understanding that a contractor is more than a rote implementer of plans and specifications because its expertise in building necessarily means the contractor has expertise in understanding the documents that define the construction and how things are put together. Read the full story...
Reprinted courtesy of Alan Winkler, Peckar & Abramson, P.C.
Mr. Winkler may be contacted at awinkler@pecklaw.com

To Ease Housing Crunch, Theme Parks Are Becoming Homebuilders

January 29, 2024 — Patrick Sisson - Bloomberg
For visitors, Universal Studios Florida offers a chance to visit a fantastical land full of wizards, Minions and various characters from NBC Universal’s many film and television properties. But for the roughly 28,000 men and women who work at the 840-acre theme park and resort complex in Orlando, the troubles of the real world — like the rising cost of housing — are not far away. Central Florida has seen some of the nation’s fastest pandemic-era rent increases, thanks to a confluence of job growth, migration and housing underproduction that has put a strain on residents. The average tenant in the region saw their monthly rent jump by $600 between early 2020 and early 2023. According to the National Low Income Housing Coalition, the Orlando-Kissimmee-Sanford metro area has one of the worst affordable housing shortages in the US, with only 15 available units for every 100 extremely low-income renter households. The dire need for workforce housing is behind the entertainment conglomerate’s latest project in Central Florida: a 1,000-unit mixed-use development, set to open in 2026, that promises to give tenants who work in the service industry a short commute to the constellation of tourist attractions and hotels nearby. To launch the project, Universal donated 20 acres of land adjacent to the Orange County convention center. Called Catchlight Crossings and built in partnership with local developer Wendover Housing Partners, the project broke ground in November. Read the full story...
Reprinted courtesy of Patrick Sisson, Bloomberg

Sweat the Small Stuff – Don’t Overlook These Three (3) Clauses When Negotiating Your Construction Contract

April 08, 2024 — Bill Shaughnessy - ConsensusDocs
Reviewing and understanding the terms of your construction contract before signing on the dotted line (ideally with counsel involved) is an obvious best practice – whether you are owner, general contractor, design-professional or down-tier subcontractor or supplier. Typically, during this review process, parties pay closest attention to terms relating to price, scope, schedule, insurance, indemnification, and damages. And rightfully so, as these are just some of the most fundamental and important clauses of any construction contract. But during this review and understanding process, parties often overlook and fail to fully review and understand several notably important contract provisions (other than the examples above) which can have just as significant an impact on the project and even unintended consequences once construction starts. This article discusses three (3) of these often-overlooked provisions which should also be carefully reviewed to ensure the project runs smoothly and to avoid unintended consequences or even disputes (and litigation) during construction:

Incorporation by reference clause;
Order of precedence or higher standard clause; and
Choice of law clause.

Read the full story...
Reprinted courtesy of Bill Shaughnessy, Jones Walker LLP (ConsensusDocs)
Mr. Shaughnessy may be contacted at bshaughnessy@joneswalker.com

Meet the Forum's ADR Neutrals: LISA D. LOVE

March 19, 2024 — Marissa L. Downs - The Dispute Resolver
Company: JAMS Office Location: New York, NY Email: llove@jamsadr.com Website: https://www.jamsadr.com/love/ Law School: Georgetown University Law Center (J.D. 1984) Types of ADR services offered: Arbitration, mediation, neutral evaluation and special master services Affiliated ADR organizations: JAMS, Chartered Institute of Arbitrators, and CPR Geographic area served: Domestic and International Q: Describe the path you took to becoming an ADR neutral. A: I started my legal career practicing law as a complex commercial transactions attorney in the corporate department of a major New York law firm for eleven years. After leaving the firm, I served as chief legal counsel to several municipalities and as co-founding partner of a boutique finance, infrastructure and real estate law firm. Read the full story...
Reprinted courtesy of Marissa L. Downs, Laurie & Brennan, LLP
Ms. Downs may be contacted at mdowns@lauriebrennan.com

White and Williams Recognizes Women’s History Month: Remembering Virginia Barton Wallace

April 08, 2024 — White and Williams LLP
March is Women’s History Month – a month dedicated to the accomplishments and history of women in the United States. The theme for International Women’s Day, which is this Thursday March 7, is “Inspire Inclusion.” White and Williams LLP is dedicated to understanding, valuing and inspiring inclusion in the field of law White and Williams is proud of the women who have become leaders in the firm’s history, starting with Virginia “Ginny” Barton Wallace, an extraordinarily accomplished pioneer among female attorneys. She joined the firm immediately after graduating from University of Pennsylvania School of Law in 1950, and in 1961, Ginny became the first woman to become the first female partner not only at White and Williams but also at any law firm in Philadelphia. Read the full story...
Reprinted courtesy of White and Williams LLP

Be Sure to Bring Up Any Mechanic’s Lien Defenses Early and Often

November 27, 2023 — Christopher G. Hill - Construction Law Musings
As those of you who regularly read Musings are aware, mechanic’s liens are a big part of my law practice and a big issue here at this construction law blog. I’ve discussed the picky requirements of the mechanic’s lien statutes in Virginia and how the 90 and 150-day rules are strictly enforced. However, a recent case out of the City of Norfolk Virginia Circuit Court cautions that while failure to meet these strict requirements may invalidate a lien, it only does so if the owner or general contractor seeking to invalidate the lien argues the invalidity and/or presents evidence of that invalidity either pretrial or during trial. In Premier Restoration LLC v. Barnes, the Court considered the following facts. The defendant homeowners had a house fire and the resulting damage was the subject of an insurance claim that was paid and checks sent to the homeowners. Premier filed a mechanic’s lien in response to Barnes’s failure to pay for Premier’s restoration construction services after Barnes’s home was destroyed by fire. Premier seeks a decree to enforce the lien, asking the court to order the sale of Barnes’s property to recover its damages or, alternatively, a judgment in its favor. With the Complaint seeking enforcement of the lien and damages for breach of contract, and this is a key point, Premier provided a copy of the mechanic’s lien along with the affidavit that is part of the statutory form swearing that the Owner was justly indebted to Premiere. The homeowners filed a counterclaim for unfinished work, including unfinished punch list work. After a trial during which no evidence regarding either the timeliness of the lien recording or whether any of the work sought to be encompassed in the lien was performed outside of the statutory 150-day window was presented by either side, the defendants filed a post-trial motion seeking to invalidate the lien as including sums for work outside of the 150-day window. Read the full story...
Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

CAMBRIDGE MASSACHUSETTS CONSTRUCTION EXPERT WITNESS DIRECTORY AND CAPABILITIES