Cambridge Massachusetts Construction Expert Witness Directory

Cooperating With Your Insurance Carrier: Is It a Must?

January 02, 2024 — Susana Arce - Saxe Doernberger & Vita, P.C.
A majority of insurance policies require the insured to cooperate with the insurer. The cooperation clause generally states, “the insured agrees to Cooperate with us in the investigation, settlement or defense of the suit.” The “cooperation clause” is often an afterthought because once litigation has ensued an insured is focused on other important considerations. However, insureds should not forget that complying with the cooperation clause can make the difference between the insurer covering or denying a claim. The Cooperation Clause in Action The Court in HDI Glob. Specialty SE v. PF Holdings, LLC,1 highlighted the importance of cooperating with an insurance carrier. In the underlying litigation, residents of an apartment complex sued four entities, all insured by the same insurance policy: two were named insureds and two were additional insureds. The primary insurer provided a defense for the named insureds. Read the full story...
Reprinted courtesy of Susana Arce, Saxe Doernberger & Vita, P.C.
Ms. Arce may be contacted at SArce@sdvlaw.com

No Coverage for Roof Collapse During Hurricane

January 29, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The Fifth Circuit affirmed the district court's determination that the insured's roof collapse was not covered. Exclusive Real Estate Inv., L.L.C. v. S.G.L. No. 1, Ltd., 2023 U.S. App. LEXIS 29368 (5th Cir. Nov. 3, 2023). A building owned by Exclusive Real Estate partially collapsed during a rain-storm. The insurer, SGL, inspected the roof and determined that there was no coverage. Exclusive sued SGL for breach of contract and bad faith. SGL moved for summary judgment, which was granted by the district court. Exclusive appealed. The poicy covered "direct physical loss to the property" caused by windstorms. Exclusions, however, precluded coverage for losses "caused by rain, snow, sleet, sand or dust unless the direct force of wind or hail damages the building causing an opening in a roof or wall and the rain, snow, sleet, sand or dust enters through this opening." Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Mechanic’s Liens- Big Exception

January 22, 2024 — Christopher G. Hill - Construction Law Musings
Musings has discussed mechanic’s liens on numerous occasions. As we discussed in earlier posts, the general rule is that a mechanic’s lien jumps to the head of the line of liens when filed. This is true in most instances. In the typical case, a contractor puts up a building and, when the owner refuses payment, it files a mechanic’s lien that takes priority over all other liens on that property, including the construction loan deed of trust (or mortgage, depending on your state’s property laws). Read the full story...
Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Congratulations to Las Vegas Team on Their Successful Motion for Summary Judgment!

May 06, 2024 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
This case arose from an alleged trip and fall on an uneven surface in a parking lot outside of BWBO’s client’s restaurant. Plaintiff alleged more than $385,000 in past medical specials (with high potential for future care and treatment) with exposure in excess of $1,000,000.00. The Plaintiff named as Defendants BWBO’s client as well as several entities related to their landlord. Early in the case, Las Vegas Partner Jeffrey W. Saab and Senior Associate D. Ryan Efros moved for summary judgment based on terms of the restaurant’s lease. They argued that based on the lease, the duty to maintain the surface of the parking lot fell exclusively to the landlord, rather than the restaurant’s client. Plaintiff opposed the motion arguing that the prevailing case law held that any agreement between a tenant and its landlord does not preclude a plaintiff from asserting either or both defendants breached their duties of care. Jeff and Ryan distinguished that case and successfully persuaded the Court that there could be no contractual duty and no common law duty to maintain the parking surface, clearing the way for the court to grant summary judgment. Read the full story...
Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

Illinois Supreme Court Finds Construction Defect Claim Triggers Initial Grant of Coverage

February 26, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The Illinois Supreme Court found that the underlying allegations addressing construction defects were sufficient to establish "property damage" caused by an "occurrence."Acuity v. M/I Homes of Chicago, LLC, 2023 Ill. LEXIS 1019 (Ill. Nov. 30, 2023). M/I Homes was the general contractor for a residential townhome development. The Owners' Association sued for breach of conract and breach of the implied warranty of habitability against M/I Homes. The complaint alleged that M/I Homes' subcontractors caused construction defects by using defective materials, conducting faulty workmanship and failing to comply with applicable building codes. The defects included leakage and uncontrolled water with moisture in locations in the buildings where it was not intended or expected. The Association further alleged that M/I Homes did not intend to cause the construction defects nor did it expect or intend the resulting property damage, such as damage to other building materials. The complaint further alleged that M/I Homes did not perform any of the construction work and that the subconractors performed all the work on its behalf. Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Appellate Court of Maryland Construes Notice Conditions of A312 Performance Bond in Favor of Surety

January 02, 2024 — Joel P. Williams - White and Williams LLP
The Appellate Court of Maryland issued a reported opinion in a case construing an American Institute of Architects (“AIA”) A312 performance bond. In Wildewood Operating Company, LLC v. WRV Holdings, LLC, et al. 2023 Md. App. LEXIS 720 (Oct. 30, 2023), the Appellate Court of Maryland held that a performance bond surety was discharged from liability where the owner/obligee failed to give the surety notice of the contractor’s default termination until after a third party had completed the work. The project concerned the construction of an assisted living facility in St. Mary’s County, Maryland. The owner, Wildewood Operating Company, LLC, entered into an A312-2010 performance bond with Clark Turner Construction, LLC, as contractor, and First Indemnity of America Insurance Company, as surety. When Clark Turner failed to complete certain stormwater management work adjacent to the site, Wildewood, Clark Turner, and other parties entered into a Work Agreement to address completion of the work. The surety was not a party to the Work Agreement. Read the full story...
Reprinted courtesy of Joel P. Williams, White and Williams LLP
Mr. Williams may be contacted at williamsj@whiteandwilliams.com

Risky Business: Contractual Versus Equitable Rights of Subrogation

December 16, 2023 — Kyle Rice - The Subrogation Strategist
In Zurich Am. Ins. Co. v. Infrastructure Eng’g. Inc., 2023 Ill. App. LEXIS 383, the insurer, Zurich American Insurance Company (Insurer) proceeded as subrogee of Community College District No. 508 d/b/a City Colleges of Chicago and CMO, a Joint Venture. The Appellate Court of Illinois, First District (Appellate Court) addressed whether Insurer – who issued a builder’s risk policy to insure a building during construction – could subrogate on behalf of the building owner, City Colleges of Chicago (City Colleges), who was part of the joint venture and an additional named insured, but who had not been directly paid for the underlying loss. The Appellate Court determined that the policy language established that the carrier was contractually permitted to subrogate on behalf of all additional named insureds on the policy, including the building owner. Read the full story...
Reprinted courtesy of Kyle Rice, White and Williams
Mr. Rice may be contacted at ricek@whiteandwilliams.com

AGC’s 2024 Construction Outlook. Infrastructure is Bright but Office-Geddon is Not

February 12, 2024 — Garret Murai - California Construction Law Blog
The Associated General Contractors of America has issued its 2024 Construction Outlook. According to its survey of construction contractors throughout the United States, contractors have a mixed outlook for 2024 with firms predicting transitions in the demand for projects, the types of challenges they will face and technologies they plan on embracing. According to the survey, contractors continue to cope with significant labor shortages, the impact of higher interest rates and input costs and a supply chain which, while better than in past few years, is still far from normal. Of the 17 categories of construction types included in the survey, respondents expected a net positive growth in 14 of those categories, with infrastructure projects leading the net positive readings following the passage of the Infrastructure Bill in 2021, and commercial retail and office leading the net negative readings as a result of the continuing office-geddon: Read the full story...
Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

CAMBRIDGE MASSACHUSETTS CONSTRUCTION EXPERT WITNESS DIRECTORY AND CAPABILITIES