CAMBRIDGE MASSACHUSETTS CONSTRUCTION EXPERT WITNESS
DIRECTORY AND CAPABILITIES

ASCE Statement on Hurricane Milton and Environmental Threats

October 15, 2024 — Feniosky Peña-Mora, P.E., President - American Society of Civil Engineers
WASHINGTON, DC. – On the heels of the tragic damage caused by Hurricane Helene throughout the Southeast, Floridians were struck by another major hurricane, Milton, less than two weeks later. Our hearts go out to those impacted again by this storm through property damage, lack of water access, power outages, or worse, loss of life, all before getting a chance to recover from Helene. Civil engineers are dedicated to protecting the public with projects that can lessen the impacts of these storms, and we are eager to help communities rebuild as quickly as possible following events like Milton and Helene. Although we do not yet know the full scope of destruction caused by Hurricane Milton, severe weather, including compound flooding events, are increasing regularly and pose a great risk to our safety and economic vitality. While so many eyes are fixated on hurricanes impacting the Southeast, wildfires are burning across several western states, including the Elk Fire in Wyoming, the largest wildfire the Bighorn National Forest has experienced in more than a century, now spanning over 75,000 acres as the region is experiencing unusually hot and dry weather and strong winds that are helping this fire to spread rapidly. The climate impacts we are accustomed to – wildfires in the West and hurricanes in the Southeast – are getting stronger, and now environmental challenges are occurring in areas we wouldn't suspect, such as Hurricane Helene striking mountain communities in Western North Carolina that have been labeled as "climate safe-havens," and Texas dealing with annual winter storms. ASCE is a leader in codes and standards development and has created an easy-to-understand toolkit for legislators and the public to learn the benefits of these up-to-date standards and determine when and how to adopt them, making our built environment more resilient to natural catastrophes. ASCE's flagship standard, ASCE/SEI 7-22, recently underwent the most significant update to its flooding chapter to ensure structures following this standard are prepared for 500-year flood events.

---

Arizona Court Affirms Homeowners’ Association’s Right to Sue Over Construction Defects

October 15, 2024 — Melissa Kenney - White and Williams LLP
In Gallery Community Association v. K. Hovnanian at Gallery LLC, No. 1 CA-CV 23-0375, 2024 Ariz. App. Unpub. LEXIS 696 (Ct. App.), the Court of Appeals of Arizona (Court of Appeals) discussed whether a homeowners’ association can file an action for breach of the implied warranty of workmanship and habitability arising from construction defects. At issue was whether the implied warranty extended to the areas within the community that the association maintained, including the common areas. The Court of Appeals held that homeowners’ associations can sue builder-vendors for breach of the implied warranty arising from construction defects. In this case, a homeowners’ association, responsible for managing and maintaining a community of townhomes, sued the developer/builder for alleged construction defects in the common area and exteriors of homes that the association maintained for the homeowners in the community. The alleged defects included the pool cabana and staircase walls in the common areas and the exterior walls, roofs, and staircases on the separately owned townhomes in the community. The builder filed a motion for summary judgment, arguing that the implied warranty extended to dwelling actions initiated by homeowners – not homeowners’ associations – and that the alleged construction defects at issue were not related to a dwelling. The trial court granted the motion. The Court of Appeals vacated the trial court’s grant of summary judgment and remanded for further proceedings. In reaching its decision, the Court of Appeals determined that both common law and statutory law authorized the homeowners’ association’s breach of implied warranty claim. Read the full story...
Reprinted courtesy of Melissa Kenney, White and Williams
Ms. Kenney may be contacted at kenneyme@whiteandwilliams.com

---

For Whom Additional Insured Coverage Applies in New York

November 11, 2024 — Bill Wilson - Construction Law Zone
Simply including a requirement in a contract to add certain parties as additional insureds under a commercial general liability insurance (CGL) policy may not be enough to ensure such coverage is provided in New York. In New York City Hous. Auth. v. Harleysville Worcester Ins. Co., 226 A.D.3d 804 (2024), the New York Supreme Court Appellate Division – Second Department ruled that the language in an insurance endorsement required privity of contract with the insured party subcontractor to obtain additional insured status and denied coverage to others despite a provision in a subcontract requiring such additional insured coverage. In this case, an owner entered into a contract with a general contractor for construction services. The general contractor entered into a subcontract with a subcontractor. The subcontractor agreed to procure and maintain a CGL policy naming the owner, the general contractor, and another related party as additional insureds thereunder. An employee of the subcontractor was injured on the project and sued the three additional insureds and several other parties. Subcontractor’s insurance company refused to defend and indemnify any party other than the general contractor. All the parties sued by the subcontractor’s employee brought an action against the subcontractor’s insurance company, seeking coverage for defense and indemnification as additional insureds under the subcontractor’s CGL policy. Read the full story...
Reprinted courtesy of Bill Wilson, Robinson & Cole LLP
Mr. Wilson may be contacted at wwilson@rc.com

---

Another Reminder that Your Construction Contract is Only as Good as Those Signing It

December 17, 2024 — Christopher G. Hill - Construction Law Musings
Here at Construction Law Musings, we beat the constant drum that “the contract is king” and “draft a good and well-worded construction contract” consistently. As a Virginia construction attorney, I stand by these statements and fully endorse a well-written construction contract. Such a contract will set expectations and provide the rules for your deal (particularly in the commercial context). Without this solid foundation (yes, I see the potential construction pun), when there are issues on the job site, there will be no baseline for how to resolve those issues. That said, I am also reminded on an almost daily basis that humans interact with these contracts. People negotiate the contracts and are the main forces that drive the success (or failure) of the construction project. Money is involved (often a lot of it) and there can at times be temptations to try and squeeze one last dollar out of the job despite what the contract says. Even the strongest contract cannot act as real-time protection against one party that refuses to comply with the contract and its performance or payment terms. Read the full story...
Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

---

With Historic Removal of Four Dams, Klamath River Flows Again Unhindered

October 21, 2024 — Tim Newcomb - Engineering News-Record
In a period of 16 months, four dams built between 1903 and 1962 came down as part of a monumental effort to clear 35 miles of the Klamath River spanning Oregon and California. The project owner, the Klamath River Renewal Corp., describes it as the largest dam removal effort in U.S.—and possibly world—history. Reprinted courtesy of Tim Newcomb, Engineering News-Record ENR may be contacted at enr@enr.com Read the full story...

---

Yes, Virginia, Contract Terms Do Matter: Financing Term Offers Owner an Escape Hatch

November 25, 2024 — Christopher G. Hill - Construction Law Musings
For this week’s Guest Post Friday, Musings welcomes Timothy R. Hughes, Esq., LEED AP. Tim (@vaconstruction on Twitter) is Of Counsel to the Arlington, Virginia firm of Bean, Kinney & Korman, P.C. In his practice as a business, corporate, and construction law attorney, Tim served as the previous Chair of the Construction Law and Public Contracts Section of the Virginia State Bar. He has served in numerous volunteer, board and leadership roles with such organizations as the Arlington Chamber of Commerce, the Northern Virginia Building Industry Association, Vanguard Services Unlimited, Leadership Arlington, Associated Builders & Contractors (Metro DC and Virginia), and numerous other volunteer and construction trade association activities. A regular speaker and writer, Tim is the lead editor of his firm blog, Virginia Real Estate, Land Use and Construction Law. A recent Virginia case once again demonstrates that contract terms matter. An unusual financing term allowed the owner of a project a complete escape from any liability on a project despite significant work being performed. The opinion from the Circuit Court of Norfolk involved five separate cases consolidated together, four claims by subcontractors and one by the general contractor Turner. All five cases hinged on an unusual financing clause in Turner’s contract with the other. That provision stated: Read the full story...
Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

---

Rhode Island Closes One Bridge and May Have Burned Others with Ensuing Lawsuit

October 07, 2024 — Bill Wilson - Construction Law Zone
The stat
April Rise in Construction Spending Not That Much

Consider Manner In Which Loan Agreement (Promissory Note) Is Drafted

Ten-Year Statute Of Repose To Sue For Latent Construction Defects

Contractor Definition Central to Coverage Dispute

Fix for Settling Millennium Tower May Start This Fall

Kahana Feld Named to the Orange County Register 2024 Top Workplaces List

Vegas Hi-Rise Not Earthquake Safe

Garlock Five Years Later: Recent Decisions Illustrate Ongoing Obstacles to Asbestos Trust Transparency

Apartment Building Damaged by Cable Installer’s Cherry Picker

Recent Decision Further Jeopardizes Availability of Additional Insured Coverage in New York

Arizona Supreme Court Confirms a Prevailing Homeowner Can Recover Fees on Implied Warranty Claims

Workers Hurt
Changes to Va. Code Section 43-13: Another Arrow in a Subcontractor’s Quiver

Construction Litigation Roundup: “How Bad Is It?”

Appeal of an Attorney Disqualification Order Results in Partial Automatic Stay of Trial Court Proceedings

Judgment Proof: Reducing Litigation Exposure with Litigation Risk Insurance

New Standard Addresses Wind Turbine Construction Safety Requirements and Identifies Hazards

Insurance Law Client Alert: California FAIR Plan Limited to Coverage Provided by Statutory Fire Insurance Policy

April Rise in Construction Spending Not That Much

“I Didn’t Sign That!” – Applicability of Waivers of Subrogation to Non-Signatory Third Parties

Condo Buyers Seek to Void Sale over Construction Defect Lawsuit

CDJ’s #2 Topic of the Year: Ewing Constr. Co., I
Oregon Supreme Court Confirms Broad Duty to Defend

Design Professionals Owe a Duty of Care to Homeowners

Liability Policy’s Arbitration Endorsement Applies to Third Party Beneficiaries, Including Additional Insureds

Auburn Woods Homeowners Association v. State Farm General Insurance Company

Georgia Court of Appeals Holds That Policyholder Can “Stack” the Limits of Each Primary Policy After Asbestos Claim

Forget Palm Springs—Santa Fe Is the New Mecca for Modern Architecture

California Supreme Court Endorses City Authority to Adopt Inclusionary Housing Ordinance

Construction Defect Journal Seeks Article Submissions Regarding SB800 and Other Builders Right to Repair Laws

Architectural Firm, Fired by School District, Launches Lawsuit

Home Sales Going to Investors in Daytona Beach Area

Florida Condo Collapse Shows Town’s Rich, Middle-Class Divide

Trio of White and Williams Attorneys Named Top Lawyers by Delaware Today

Limiting Liability: Three Clauses to Consider in your Next Construction Contract

Contingent Business Interruption Claim Denied

Contractors Can No Longer Make Roof Repairs Following Their Own Inspections

L.A. Makes $4.5 Billion Bet on Olympics After Boston Backs Out

Expanded Virginia Court of Appeals Leads to Policyholder Relief

NYC Airports Get $500,000 Makeover Contest From Cuomo

Withholding Payment or Having Your Payment Withheld Due to Disputes on Other Projects: Know Your Rights to Offset

ADP Says Payrolls at Companies in U.S. Increase 200,000

SB800 Is Now Optional to the Homeowner?

Where Do We Go From Here?

Wall Street Is Buying Starter Homes to Quietly Become America’s Landlord

Cross-Motions for Partial Judgment on the Pleadings for COVID-19 Claim Denied

Are Housing Prices Poised to Fall in Denver?

Georgia Supreme Court Determines Damage to "Other Property" Not Necessary for Finding Occurrence

Maine Court Allows $1B Hydropower Transmission Project to Proceed

Loss of Use From Allegedly Improper Drainage System Triggers Defense Under CGL Policy

A Funny Thing Happened to My Ground Lease in Bankruptcy Court

Finalists in San Diego’s Moving Parklet Design Competition Announced

District Court of Missouri Limits Whining About the Scope of Waiver of Subrogation Clauses in Wine Storage Agreements

Five Types of Structural Systems in High Rise Buildings

Chinese Billionaire Sues Local Governments Over Project Payment

Pennsylvania Considers Changes to Construction Code Review

Construction Defect Notice in the Mailbox? Respond Appropriately

Toolbox Talk Series Recap – Best Practices for Productive Rule 26(f) Conferences on Discovery Plans

New Safety Standards Issued by ASSE and ANSI

Delay In Noticing Insurer of Loss is Not Prejudicial

Ten Firm Members Recognized as Super Lawyers or Rising Stars

Repair Cost Exceeding Actual Cash Value Does Not Establish “Total Loss” Under Fire Insurance Policy

Know your Obligations: Colorado’s Statutory Expansions of the Implied Warranty of Habitability Are Now in Effect

Personal Guarantor Cannot Escape a Personal Guarantee By…

After Pittsburgh Bridge Collapse, Fast-Rising Replacement Emerges

2017 California Employment Law Update

NTSB Pittsburgh Bridge Probe Update Sheds Light on Collapse Sequence

Late Filing Contractor Barred from Involving Subcontractors in Construction Defect Claim

Haight’s San Diego Office is Growing with the Addition of New Attorneys

Construction Case Alert: Appellate Court Confirms Engineer’s Duty to Defend Developer Arises Upon Tender of Indemnity Claim

The Importance of Preliminary Notices on Private Works Projects

AMLO Hits Back at Vulcan, Threatens to Use Environmental Decree