CAMBRIDGE MASSACHUSETTS CONSTRUCTION EXPERT WITNESS
DIRECTORY AND CAPABILITIES

Labor Shortages In Construction

December 04, 2023 — Jason Feld & Chris Bates - Kahana Feld
Similar to other industries, the ongoing labor shortage crisis in the United States is detrimentally impacting construction activities in both the residential and commercial sector. According to the Bureau of Labor Statistics, the turnover rate for the construction industry since 2021 has risen to 56%. And while the national unemployment rate ranges between 0.4% to 7.5%, the unemployment rate for construction is roughly four times the national average (See, Associated Builders and Contractors, Markenstein Advisors Report dated July 28, 2023). 73% of workers preferred to stay in a remote work environment, and another 40% of the global workforce has elected to voluntarily remove themselves from the workplace. (See, 2021 Microsoft Work Index). In particular with the construction industry, employment rates have returned to pre-pandemic levels hovering around 12% unemployment in 2020 to 6% in 2022. (See, Joint Center for Housing Studies at Harvard University, Carlos Martin). So where did all the workers go? During the height of the 2020 Covid-19 Pandemic and for the next few years, the county experienced what most people are calling “The Great Resignation”. May people took jobs with better pay and better alignment with their values. Approximately 40% stated a new business. Many elected to become stay-at-home parents forgoing a paycheck to raise their families while the other spouse works, especially due to the rising costs of childcare. About 1 in every 4 baby-boomers retired. Others took part-time employment, entered military service or left the workforce due to disability or injury. (See, Bloomberg Businessweek). Reprinted courtesy of Jason Feld, Kahana Feld and Chris Bates, Kahana Feld Mr. Feld may be contacted at jfeld@kahanafeld.com Mr. Bates may be contacted at cbates@kahanafeld.com Read the full story...

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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

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Compliance Doesn’t Pay: Compliance Evidence Inadmissible in Strict Liability Actions

February 05, 2024 — Kyle Rice - The Subrogation Strategist
In Sullivan v. Werner Co., No. 18 EAP 2022, 2023 Pa. LEXIS 1715 (Dec. 22, 2023), the Supreme Court of Pennsylvania (Supreme Court) clarified that in light of its decision in Tincher v. Omega Flex, Inc., 628 Pa. 296 (2014), evidence that a product complied with industry standards is inadmissible in an action involving strict product liability. In Tincher, the Supreme Court overruled prior case law and reaffirmed that Pennsylvania is a Second Restatement Jurisdiction. As stated in Sullivan, discussing Tincher, under the Restatement (Second) of Torts § 402A, a “seller of a product has a duty to provide a product that is free from ‘a defective condition unreasonably dangerous to the consumer or [the consumer’s] property.’ To prove breach of this duty, a ‘plaintiff must prove that a seller (manufacturer or distributor) placed on the market a product in a “defective condition.”” Read the full story...
Reprinted courtesy of Kyle Rice, White and Williams
Mr. Rice may be contacted at ricek@whiteandwilliams.com

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Arizona Is Smart About Water. It Should Stay That Way.

February 19, 2024 — Mark Gongloff - Bloomberg
You really have to hand it to Arizona: Even as its population has doubled and it has suffered through a decades long megadrought, the state uses less water today than it did 40 years ago. This success story is the result of what may be the smartest, most conservative approach to water in the country. But homebuilders want to scrap some key elements of this careful system. It’s a bad idea, especially as the climate changes, making the state’s water supply less reliable. And it’s a cautionary tale for the rest of us as we try to adapt to a warming world. In 1980, alarmed at watching its precious groundwater disappear amid rapid development, Arizona passed the Groundwater Management Act. The law established the Arizona Department of Water Resources, set up water-management zones around cities and required new housing developments to prove they had access to 100 years’ worth of clean water, among other things. Read the full story...
Reprinted courtesy of Mark Gongloff, Bloomberg

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Homebuilders Are Fighting Green Building. Homeowners Will Pay.

April 22, 2024 — Mark Gongloff - Bloomberg
Back in the 1990s, political guru James Carville said he wanted to be reincarnated as the bond market because it could “intimidate everybody.” Here in the 2020s, you might prefer to come back as a homebuilder. The industry has the political muscle to protect its profits at the expense of both homeowners and the climate. In some fast-growing parts of the US, lobbyists are frustrating efforts to make new homes more efficient and compatible with clean technology, making it that much harder for the rest of us to avoid the worst effects of a heating planet. They’re doing it in the name of housing affordability, naturally — but it doesn’t hurt that they’re keeping a lid on homebuilders’ costs at the same time. Their sabotage will cost homeowners much more in the long run. In 2021, the International Code Council, a nonprofit group that every few years suggests building codes for the whole country, released an aggressive set of proposals that could reduce residential carbon emissions and annual energy costs by 9%, according to one estimate. This was in response to a groundswell of requests from local officials to update standards that had long been stagnant. Read the full story...
Reprinted courtesy of Mark Gongloff, Bloomberg

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The Contractor’s Contingency: What Contractors and Construction Managers Need to Know and Be Wary Of

December 04, 2023 — Skyler L. Santomartino - Peckar & Abramson, P.C.
Contractors and construction managers who enter into cost reimbursable contracts subject to a guaranteed maximum price (GMP) are responsible for all project costs exceeding the GMP. For this reason, it is imperative that contractors negotiate and incorporate into the GMP a financial buffer that accounts for the unanticipated project costs that are not reimbursable as change orders or costs of the work. This is where the contractor’s contingency comes into play.[1] The contractor’s contingency is a vehicle that allows contractors to mitigate some of the risks inherent in GMP contracts. When drafted properly, a contingency clause allows the contractor and only the contractor to access funds set aside by the owner to address unpredictable or unknown project costs. Read the full story...
Reprinted courtesy of Skyler L. Santomartino, Peckar & Abramson, P.C.
Mr. Santomartino may be contacted at ssantomartino@pecklaw.com

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The 2024 Colorado Legislative Session Promises to be a Busy One for the Construction Industry and its Insurers

January 16, 2024 — David M. McLain – Colorado Construction Litigation
January 10th marked the first day of the 2024 Colorado legislative session. After the pomp and circumstance of opening day, a total of eighty-six bills were introduced. Among them, two impact the construction and insurance industries. First, House Bill 24-1008 would make general contractors and their subcontractors, which are direct employers of an employee, jointly and severally liable for all debts owed based on wage claims or investigations. Essentially, if HB 24-1008 were to become law, general contractors would become the guarantors of wage payments to their subcontractors’ employees. The second bill, House Bill 24-1083, would require the Colorado Division of Insurance to conduct a study of construction liability insurance for construction professionals in Colorado and would require that, 14 days prior to closing the sale of a new residence, the seller provide the purchaser and the county clerk and recorder’s office certain information regarding the insurance coverage for the home. In a year when the legislature should be focusing on construction defect reform and affordable housing for Coloradoans, these first two bills will likely drive up the cost of new construction. House Bill 20-1008, sponsored by Representatives Duran and Froelich, Brown, deGruy Kennedy, Epps, Garcia, Hamrick, Hernandez, Joseph, Lieder, Lindstedt, Mabrey, Mauro, Ricks, Rutinel, Story, Velasco, and Vigil and Senators Danielson and Jaquez Lewis, Exum, Gonzales, Kolker, Marchman, and Sullivan, has been assigned to the House Committee on Business Affairs & Labor but has not yet been scheduled for a hearing. The bill summary states: For wage claims brought by individuals working in the construction industry, the bill:

• Requires that a subcontractor that receives a written demand for payment forward a copy of the written demand for payment to the general contractor within 3 business days after receipt;

Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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When OSHA Cites You

April 22, 2024 — Michael Metz-Topodas - Construction Executive
With the strong bonds that form among construction project teams, workers looking out for each other helps keep safety foremost in everyone’s mind. But sometimes, even the very best intentions alone can’t prevent an occasional misstep—a forgotten hard hat, a sagging rope line—which can and often does result in an OSHA citation. These regulatory reminders can bring unfortunate consequences: penalties, higher insurance premiums, potential worker injury claims, loss of bidding eligibility, loss of reputation and even public embarrassment, because citations are published on OSHA’s website. Due to citations’ adverse effects, contractors have incentives to minimize them. They can do this by asserting available defenses, because a citation is only an alleged violation, not a confirmed one. But making defenses available begins well before a citation is issued, well before OSHA arrives to a construction site and well before a violation even occurs. Instead, contractors’ ongoing safety programs should incorporate the necessary measures to preserve OSHA citation defenses in three key areas: lack of employee exposure, lack of employer knowledge and impossibility. EMPLOYEE EXPOSURE To sustain a citation against an employer, OSHA must not only identify an applicable standard that the company violated but also show that the violation exposed employees to hazards and risk of injury. Absent evidence of actual exposure, OSHA often makes this showing by asserting that performing job functions necessarily exposes employees to the cited hazard. Reprinted courtesy of Michael Metz-Topodas, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the full story...
Mr. Metz-Topodas may be contacted at michael.metz-topodas@saul.com

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