Cambridge Massachusetts Construction Expert Witness Directory

9th Circuit Plumbs Through the Federal and State False Claims Acts

January 16, 2024 — Garret Murai - California Construction Law Blog
You may have heard of the False Claims Act and know that it penalizes companies and individuals in contract with the government who present false claims. The federal False Claims Act was signed into law by President Abraham Lincoln in 1863 to penalize profiteers during the Civil War who were selling the Union Army moth eaten blankets, boxes of sawdust instead of guns, and sometimes re-selling the Army calvary horses several times over. Since then, many states, including California, as well as municipalities, have enacted their own false claim statutes. As currently written, the federal False Claims Act provides for statutory penalties against any person who:

“[K]nowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval”;
“[K]nowingly makes, uses or causes to be made or used, a false record or statement material to a false or fraudulent claim”;
“[H]as possession, custody, or control of property or money used, or to be used, by the Government an knowingly delivers, or causes to be delivered, less than all of that money or property”;

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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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

Illinois Supreme Court Holds that Constructions Defects May Constitute “Property Damage” Caused By An “Occurrence” Under Standard CGL Policy, Overruling Prior Appellate Court Precedent

January 08, 2024 — Jason Taylor - Traub Lieberman Insurance Law Blog
On November 30, 2023, the Illinois Supreme Court issued an opinion that overturned precedent in Illinois regarding whether faulty workmanship that only caused damage to the insured’s own work constituted “property damage” caused by an “occurrence” under Illinois law. In Acuity v. M/I Homes of Chicago, LLC, 2023 IL 129087, the Illinois Supreme Court considered whether Acuity, a mutual insurance company, had a duty to defend its additional insured, M/I Homes of Chicago, LLC (M/I Homes), under a subcontractor’s commercial general liability (CGL) policy in connection with an underlying lawsuit brought by a townhome owners’ association for breach of contract and breach of an implied warranty of habitability. The Cook County Circuit Court granted summary judgment in favor of Acuity finding no duty to defend because the underlying complaint did not allege “property damage” caused by an “occurrence” under the initial grant of coverage of the insurance policy. The appellate court reversed and remanded, finding that Acuity owed M/I Homes a duty to defend. The Illinois Supreme Court affirmed, in part, holding construction defects to the general contractor’s own work may constitute “property damage” caused by an “occurrence” under the standard CGL Policy. This is significant as it overrules prior Illinois precedent finding that repair or replacement of the insured’s defective work does not satisfy the initial grant of coverage of a CGL Policy. By way of background, the underlying litigation stems from alleged construction defects in a residential townhome development in the village of Hanover Park, Illinois. The townhome owners’ association, through its board of directors (the Association) subsequently filed an action on behalf of the townhome owners for breach of contract and breach of the implied warranty of habitability against M/I Homes as the general contractor and successor developer/seller of the townhomes. The Association alleged that M/I Homes’ subcontractors caused construction defects by using defective materials, conducting faulty workmanship, and failing to comply with applicable building codes. As a result, “[t]he [d]efects caused physical injury to the [t]ownhomes (i.e. altered the exterior’s appearance, shape, color or other material dimension) after construction of the [t]ownhome[ ] was completed from repeated exposure to substantially the same general conditions.” The defects included “leakage and/or uncontrolled water and/or moisture in locations in the buildings where it was not intended or expected.” The Association alleged that the “[d]efects have caused substantial damage to the [t]ownhomes and damage to other property.” Read the full story...
Reprinted courtesy of Jason Taylor, Traub Lieberman
Mr. Taylor may be contacted at jtaylor@tlsslaw.com

Wood Wizardry in Oregon: Innovation Raises the Roof for PDX Terminal

April 15, 2024 — Aileen Cho - Engineering News-Record
Drones, self-propelled modular transporters and a curtain wall that really does hang off the roof like a curtain are all notable technologies that made installing an 18-million-lb timber roof possible at Portland International Airport. Of equal weight is the emphasis on full-scale sourcing of the timber and representing the Pacific Northwest’s residents, history and geography. Reprinted courtesy of Aileen Cho, Engineering News-Record Ms. Cho may be contacted at choa@enr.com Read the full story...

When Must a New York Insurer Turn Over a Copy of the Policy?

December 23, 2023 — Nicholas P. Hurzeler - Lewis Brisbois
New York, N.Y. (December 7, 2023) - It has long been the rule in New York that a defendant should disclose all insurance policies that might provide coverage to the plaintiff for an underlying claim. McKiernan v Vaccaro, 168 AD3d 827 [2d Dept 2019]; Keenan v Harbor View Health & Beauty Spa, 205 AD2d 589 [2d Dept 1994]. This rule applies to all tort cases, including motor vehicle; however, it does not apply to lawsuits seeking to recover No Fault expenses (see, CPLR 3101(f)(5)). Frequently, a plaintiff will demand a copy of the policy even when the claim is still pre-suit. This raises the question of when the insurer must comply with this specific type of discovery demand in New York. Read the full story...
Reprinted courtesy of Nicholas P. Hurzeler, Lewis Brisbois
Mr. Hurzeler may be contacted at Nicholas.Hurzeler@lewisbrisbois.com

The National Labor Relations Board Joint Employer Standard is Vacated by the Eastern District of Texas

April 22, 2024 — Andrew G. Vicknair - The Dispute Resolver
Many employment laws use the concept of joint employer to make more than one business entity responsible for complying with employment law obligations towards employees who to varying degrees work for, or under the direction of entities who are not technically the employees primary employer. Nowhere is that issue more prevalent than in contractor subcontractor relationships. Over the years the National Labor Relations Board (NLRB) has developed various tests for determining joint employer status. Unless a business entity is an employer of individuals, the NLRB has no jurisdiction over a dispute between the workers and a business entity for whom they work. It is important for contractors to understand the importance of being an employer and the obligations that flow from such status. Likewise, it is also important to understand when a contractor may be classified as a “joint employer” over certain individuals. Depending on the specific laws involved, such a finding of joint-employer status can happen under the “joint employer doctrine” which often exists in subcontractor and temporary employment arrangements. The “joint-employer doctrine” may render a contractor responsible for another company’s employment liabilities. Read the full story...
Reprinted courtesy of Andrew G. Vicknair, D'Arcy Vicknair, LLC
Mr. Vicknair may be contacted at agv@darcyvicknair.com

Navigating the New Landscape: How AB 12 and SB 567 Impact Landlords and Tenants in California

March 11, 2024 — Sharon Oh-Kubisch - Kahana Feld
There are various changes in the Landlord-Tenant laws in CA that became effective in 2024. For the purposes of this article, I wanted to focus on Assembly Bill (AB) 12 and Senate Bill (SB) 567 only. Governor Gavin Newsom recently signed AB 12 into law, a legislation that limits the amount landlords can charge for security deposits to just one month’s rent for unfurnished apartments. While the law aims to make housing more accessible, it raises several concerns for landlords and tenants alike. AB 12, was authored by Assemblyman Matt Haney, D-San Francisco; it passed both the Senate and the Assembly houses in September. The legislation introduces a notable shift from existing law, under which landlords can charge up to two months’ rent for an unfurnished unit and three months’ rent for a furnished one. This exception does not apply when the prospective tenant is a military service member, however. Read the full story...
Reprinted courtesy of Sharon Oh-Kubisch, Kahana Feld
Ms. Oh-Kubisch may be contacted at sokubisch@kahanafeld.com

Surety Trends to Keep an Eye on in the Construction Industry

March 25, 2024 — Oliver Craig - Construction Executive
Reflecting on the dynamics of the 2023 construction and surety industries, it is evident that opportunities and challenges have emerged for contractors that will shape the landscape for the year ahead. Contractors can not only capitalize on these trends but protect the successful companies they have already built. PROJECT OPPORTUNITIES There has been a notable increase in public works opportunities, driven by increased government spending and the aging infrastructure in the United States. This trend is expected to continue in 2024 and beyond, with a notable portion of work coming in transportation- and public-utility-related infrastructure. Due to increased spending, many contractors are reporting historically high backlogs—and that often includes the largest project their company has contracted in their history. While increased spending presents more opportunity, it’s critical contractors be even more diligent about new opportunities, giving additional consideration to the following: Job Selection: New geographies, scope, project owners and/or subcontractor relationships commonly come with a learning curve. With the current state of the market, it’s not the ideal time to be learning costly lessons. Contractors should focus on having a proactive go/no-go strategy when reviewing potential projects to identify risks early and plan accordingly. Reprinted courtesy of Oliver Craig, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the full story...

CAMBRIDGE MASSACHUSETTS CONSTRUCTION EXPERT WITNESS DIRECTORY AND CAPABILITIES