CAMBRIDGE MASSACHUSETTS CONSTRUCTION EXPERT WITNESS
DIRECTORY AND CAPABILITIES

Reasonable Expectations – Pennsylvania’s Case by Case Approach to the Sutton Rule

February 12, 2024 — Melissa Kenney - The Subrogation Strategist
In Mutual Benefit Ins. Co. a/s/o Michael Sacks v. Koser, No. 1340 MDA 2023, 2023 Pa. Super. LEXIS 574, 2023 PA Super 252 (Mutual Benefit), the Superior Court of Pennsylvania discussed whether a landlord’s property insurer could file a subrogation action against tenants that had negligently damaged the landlord’s property. Despite there being more than one clause in the lease holding the tenants liable for the damages, the court held that because there was a provision requiring the landlord, not the tenants, to insure the leased building, the insurer could not subrogate against the tenants. In Pennsylvania, a tenant’s liability for damage to a leased premises in a subrogation action brought by a landlord’s insurer is determined by the reasonable expectation of the parties to the lease agreement. Under this approach, to determine if subrogation is permitted, the court considers the circumstances of the case and examines the terms of the lease agreement. In Mutual Benefit, the tenants leased and resided in a residential home pursuant to a lease agreement. The lease specifically addressed insurance, stating that landlord was responsible for obtaining insurance on the dwelling and the landlord’s personal property, and tenants were encouraged to procure separate insurance for their personal property. The lease also addressed liability for damage to the leased property, stating generally that the tenants were responsible for damage caused by the tenants’ negligence. Read the full story...
Reprinted courtesy of Melissa Kenney, White and Williams
Ms. Kenney may be contacted at kenneyme@whiteandwilliams.com

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Real Estate & Construction News Roundup (11/8/23) – New Handling of Homelessness, Decline in Investments into ESG Funds, and Shrinking of a Homebuyer’s Dollar

December 11, 2023 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
Our latest roundup includes two large flood control projects in New Jersey, how residential REITs could benefit from higher interest rates, how the downfall of WeWork could cause expansive collateral damage, and more!

• The Federal Reserve said the possibility of large losses in the $24 trillion U.S. commercial real estate market poses a top risk to financial stability. (Jim Tyson, CFO Dive)
• According to proptech firm MRI Software, apartment leasing patterns are “reverting to pre-pandemic patterns and becoming more predictable.” (Leslie Shaver, Multifamily Dive)
• Los Angeles has developed a new way to handle homelessness—real estate agents for those without a home. (Jennifer Ludden, NPR)

Read the full story...
Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

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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:

1. Incorporation by reference clause;
2. Order of precedence or higher standard clause; and
3. 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

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Motion for Summary Judgment Gets Pooped Upon

December 16, 2023 — Garret Murai - California Construction Law Blog
I’ve read some crappy motions over the years, some of which opposing counsel might even attribute to me, but I don’t think I’ve ever written about poop and motions. In Beebe v. Wonderful Pistachio & Almonds LLC, a summary judgment motion filed by a project owner sued by a construction worker for personal injuries caused by bird poop, which in turn caused a nasty fungal infection which spread to his brain, resulted in a not-so-wonderful ending for Wonderful. Read the full story...
Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Hirer Not Liable Under Privette Doctrine Where Hirer Had Knowledge of Condition, but not that Condition Posed a Concealed Hazard

December 11, 2023 — Garret Murai - California Construction Law Blog
The Privette doctrine, so-called because of a case of the same name, Privette v. Superior Court, 5 Cal.4th 698 (1993), provides a rebuttable presumption that a hirer is not liable for workplace injuries sustained by employees of hired parties. In other words, if a property owner hires a contractor, and one of the contractor’s employees gets injured while working on the property, there is a rebuttable presumption that the property owner is not liable for the employee’s injuries, the rationale being that because the contractor is required to carry workers’ compensation insurance the contractor is in the better position to absorb losses incurred a workplace injury. There are, however, two widely recognized exceptions to the Privette doctrine. The first, is the Hooker exception, again named after a case of the same name, Hooker v. Department of Transportation, 27 Cal.th 198 (2002), which provides that a hirer is liable for injuries to a hired parties’ employees, if the hirer retained control over the work being performed, negligently exercised that control, and the negative exercise of that control contributed to the employee’s injury. Read the full story...
Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Construction Litigation Roundup: “Indeed, You Just Design ‘Em”

April 29, 2024 — Daniel Lund III - Lexology
Seeking to be extracted from personal injury litigation initiated by a laborer on a project in New Orleans, an architect sued for negligence filed a motion for summary judgment. The plaintiff had “testified in his deposition that after demolishing most of one of the side walls of the vault and a smaller section of the front wall, he was instructed to stand on top of the vault's concrete ceiling in order to demolish it with a hydraulic jackhammer.” One court noted that: “Shortly after beginning that task, the entire vault structure collapsed.” Claims against the architect included assertions of “failure to monitor and supervise the execution of the plans to ensure safety at the jobsite.” The architect urged in support of its MSJ that it did not owe a duty to oversee, supervise, or maintain the construction site, or have any responsibility for the plaintiff’s safety. Summary judgment was granted to the architect by the trial court, and an appeal ensued, whereupon the appellate court reversed. That intermediate court found that potential intervening knowledge of the architect of a potentially unsafe demolition practice created an issue of material fact. Read the full story...
Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

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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

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Appraisal Goes Forward Even Though Insurer Has Yet to Determine Coverage on Additional Claims

December 11, 2023 — Tred R. Eyerly - Insurance Law Hawaii
The trial court's order granting the insured's motion to stay litigation and compel an appraisal was affirmed even though the insurer had not determined coverage on the insured's additional claims.Heritage Prop. & Cas. Ins. Co. v. Wellington Place HOA, 2023 Fla. App. LEXIS 6405 (Fla. Ct. App. Sept. 13, 2023). The insured homeowner's association reported roof damage to its insurer, Heritage, after Hurrican Irma struck. Heritage agreed the damage was covered, but issued no payment because the amount of loss was less than the deductible. The insured hired its own adjuster. The insured requested an extension of the policy's two year time limit to complete repairs because the claim was still in dispute and the insurer had not yet paid sufficient funds to allow necessary repairs. Heritage sent a revised estimate and asked the insured to send its adjuster's estimate in order to address any disputes. The insured submitted its adjuster's estimate of more than $6 million, including, for the first time, the cost to replace all the windows and sliding glass doors. Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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