Eric F. Eisenberg

INSURANCE LITIGATION

General

• Successfully represented national construction companies and their sureties in multi-million dollar coverage actions against various insurers with regard to high profile “sick-building” and construction accident claims.
• Successful representation of group of insureds in coverage action arising out of multiple millions of dollars of “POP” insurance issued by carrier.
• Frequent advice to clients with respect to insurance coverage issues/disputes arising out of ground leases, construction contracts and business operations.
• Served as arbitrator of $30+million dispute relating to damage caused by successive hurricanes to a tropical resort and the insurance proceeds payable for each storm.
• Recovered more than $1 million of Covid-19 losses from Lloyd’s syndicate that issued Event Cancellation policy.

Construction/OCIP/CCIP/Wrap-Up Claims

• Numerous multi-million dollar Builder’s Risk recoveries.
• Numerous multi-million dollar recoveries from insurers for architects, engineers and contractors in connection with complex property damage/engineering claims.
• Numerous recoveries for major construction companies on significant claims under inland marine/equipment policies.
• Successfully prosecuted coverage claim relating to defense and indemnity for failure of athletic turf field.
• Successful insurance-funded defense of owners, general contractors and designers of multi-unit residential and commercial buildings against claims of defective design and/or workmanship.
• Numerous multi-million dollar recoveries for construction companies under wrap-up builder’s risk policies in cases (some involving mega-projects like Boston’s “Big-Dig”) which presented complex insurance, engineering and construction issues.
• Successfully handled dozens of substantial and complex structural defect, mechanical system, flood, earth movement and fire insurance claims for regional and national contractors in cases involving bridges, tunnels (cut and cover, bored, jacked and immersed tube); commercial buildings, jails and underground utilities and structures (slurry walls, jet grouting, steam lines, sewer lines, duct banks).
• Brokered settlement with Plaintiff hotel chain and convinced two layers of CCIP carriers to pay $14 million to settle claims against national contractor related to alleged defects in hotel parking garage and plaza.
• Recovered more than $2.9 million from, a group of builder’s risk insurers on behalf of a national construction company in connection with the failure and replacement of a multi-million dollar multi-layer steam line. Investigation involved both insurance coverage issues and issues of welding and metallurgy, industry standards for the design, installation and operation of multi-layered steam lines, mapping of physical evidence of changes to the failed steam line, and use of such location-related information to demonstrate that the steam line was destroyed by improper operation and not by construction defects.
• Recovered $5.5 million of resequencing and inefficiencies and extended overheads from Public Owner and Project Builder’s Risk carriers as a result of 65,000 cubic yard slope failure on major cut and cover highway tunnel project. Case involved insurance coverage issues, geotechnical issues, and time entitlement analyses.
• Recovered $7.75 million of repair costs and cessation of work expenses from a group of OCIP builder’s risk insurance carriers in connection with a construction phase-flood of a group of immersed-tube highway tunnels. Case involved both insurance coverage issues and complex engineering issues relating to geotechnical soil conditions and means/methods of underwater construction.

Errors and Omissions Insurance

• Substantial recoveries for property owners on numerous claims against architects, engineers and their Errors and Omissions (“E&O”) insurance carriers.
• Successful representations of financial institutions, construction companies and other businesses with respect to indemnity and defense claims made to E&O and D&O insurance carriers.
• Recovered millions of dollars of direct and indirect costs and delay damage from two engineering firms relating to the defective design of the reinforced concrete structure of a hotel tower from the design engineers and their E&O insurance carrier. The case involved insurance coverage issues, structural steel load path analyses, and time entitlement analyses.

Liability Insurance

• Successfully negotiated multi-million dollar resolution of industrial accident case without financial contribution from insured client where multiple involved insurance carriers had repeatedly denied coverage.
• Successfully represented a piping and mechanical contractor with respect to coverage for $50+ million of wrongful death, personal injury and property damage claims relating to the explosion of a gas power plant.
• Frequent prosecution of coverage claims for insureds, where insureds sought indemnity and defense from liability carriers for claims made by third-parties for personal injury and/or property damage.
• Substantial experience serving as appointed defense counsel for faulty workmanship and design claims arising out of heavy highway, office/retail/commercial and multi-unit residential construction.
• Successfully defended contractors and their sureties with respect to high profile multimillion dollar claims involving construction site collapses, floods, fires and damaged steam lines and other utilities.
• Successfully defended a national construction company and its sureties with regard to a high profile $80+ million property damage claim arising out of a collapse within an interstate highway tunnel.

Property Insurance

• Numerous successful representations of commercial property owners with respect to first-party and third-party property damage insurance claims (some involving sophisticated engineering testimony and millions of dollars of damages).
• Recovered more than $3 million from our client’s first-party property insurance carrier on account of structural damage done by tenants to a historic building through a series of unauthorized renovations. Subsequent structural damage triggered code compliance upgrades as part of the building’s repair and reconstruction.

Multi-Policy Claims

• Successfully resolved multi-million dollar misrepresentation and construction defect claims against Real Estate Developer where Errors & Omissions and General Liability carriers both refused to defend or acknowledge coverage.

CONSTRUCTION LITIGATION

• Successfully defended joint venture of national and regional general contractors against $13 million of claims relating to the design development and fabrication of the tower steel for a $245M public Design Build lift bridge replacement project. The case was tried for 15 days before a judge of the Massachusetts Superior Court Business Litigation Session. The case presented issues of first impression and involved expert testimony relating to the allocation of risk and design development in Design Build projects, as well as complex issues relating to engineering, design, steel fabrication, time entitlement, and construction and steel fabrication methods. The judge ultimately enforced the Design Build risk transfer provisions of the subcontract and awarded the fabricator only 20% of its total claims on issues not relating to Design Build.
• Successfully defended a joint venture of national and regional general contractors on $15 million of claims brought by a terminated painting subcontractor in connection with a ~$300 million public MassDOT Design-Build historic bridge rehabilitation project. The case was presented virtually over 12-days before a 3 member panel of seasoned construction arbitrators. The evidence presented included detailed factual testimony as to, inter alia, industrial/commercial painting methods and specifications; as well as significant and complex expert testimony as to painting methods, practices and specifications, damages/costs accounting, and time entitlement. The Panel awarded 3.5% of subcontractor’s principal claims and denied subcontractor prevailing party attorney’s fees or costs.
• Recovered $25 million for a joint venture of national contractors for claims related to prescriptive specifications included in what was otherwise a design-build historic bridge rehabilitation project. Certain of these claims related to failure of or conflicts between prescriptive specifications requiring the re-use of historic materials, riveted connections, galvanized members and advanced coating systems.
• Recovered $15 million for a joint venture of national contractors with respect to claims related to defects in prescriptive specifications included in what was otherwise a design-build moveable bridge project.
• Tried to conclusion (decision pending) $17 million of claims and counterclaims relating to the design development and fabrication of the tower steel for a 245M public Design Build lift bridge replacement project. The case presented issues of first impression and expert testimony relating to the allocation of risk and design development in Design Build projects, as well as complex issues relating to engineering, design, steel fabrication, time entitlement, and construction and steel fabrication methods.
• Directed an investigation for a national contractor with regard to weld failures in orthotropic deck panels on a major suspension bridge. Eric worked with expert witnesses to design the engineering study, to gather the necessary data and to determine an appropriate remediation plan.
• Successfully defended general contractor in connection with the failure of a 120-inch pipe coupling installed as part of a municipal water project. Eric led an engineering analysis of the project, the coupling design and the evidence collected after the failure and was able to demonstrate conclusively that no acts or omissions of his client contributed to the coupling failure.
• Prosecuted tens of millions of dollars of claims arising out of recurrent and persistent leaks in a multi-billion dollar highway tunnel. Eric directed a root cause/failure mode analysis of the roof to wall leakage. This investigation included analyses of: the structural engineering of the tunnel walls and roof, means and methods of slurry wall installation, waterproofing methodologies and geological conditions.
• Successfully defended a general contractor in connection with a post-construction collapse of a suspended ceiling in an interstate highway tunnel. Eric led a group of engineers in analyzing potential failure modes in order to prove the factors that caused the failure of the ceiling system. This involved structural analysis, investigation of construction methodologies and standards, design issues, and analysis of the physical properties of the epoxy anchor system.
• Successfully defended a general contractor against claims arising out of its construction of more than one thousand (1,000) slurry wall panels and charges that construction means and methods and alleged variances from contract specifications caused defects in the slurry wall panels. Eric led an investigation of the effect that variations in slurry characteristics and methods of end stop protection/cleaning had/did not have upon the finished slurry walls.
• Successfully prosecuted claims on behalf of a general contractor against a project owner, designers, insurers and a utility company in connection with the failure and replacement of a multi-million dollar multi-layer steam line. The investigation involved issues of welding and metallurgy, industry standards for the design, installation and operation of multi-layered steam lines, the mapping of physical evidence of changes to the failed steam line and the use of such location-related information to demonstrate that the steam line was destroyed by improper operation by the utility company. Eric ultimately recovered millions of dollars for his client.
• Recovered millions of dollars of direct and indirect costs and delay damage from two engineering firms relating to the defective design of the reinforced concrete structure of a hotel tower from the design engineers and their E&O insurance carrier. The case involved insurance coverage issues, structural steel load path analyses, and time entitlement analyses.
• Successfully represented a general contractor with respect to $60 million of claims arising out of the flooding of an immersed tube tunnel. Eric also thereafter obtained partial summary judgment (as to coverage) and went to trial against his client’s Builder’s Risk insurance carriers and recovered another $7.75 million of repair costs and cessation of work damages which had not been recovered from the Owner.
• Successfully defended a $40 million “sick-building” case on behalf of a client who installed mineral wool fireproofing in a public/private development project. Eric proved that his client’s installation and product were not responsible for the conditions complained of within the building.
• Successfully defended a design firm against a multi-million dollar claim that a solar panel manufacturing facility failed to meet specified noise specifications.
• Successfully defended developer against claims that elevator systems in apartment complex were non-compliant with applicable regulations.
• Obtained a directed verdict in favor of general contractor/developer of luxury condominium complex with respect to construction defect and other claims, particularly claims that the HVAC systems were improperly designed and/or defective.
• Successfully defended a general contractor with respect to claims that the HVAC system for a major airport terminal was improperly designed and/or defective.
• After bench trial, obtained defendant’s verdict and $4.9 million judgment in counterclaim against rebar subcontractor on major public infrastructure project.

COMMERCIAL LITIGATION

Business Disputes

• Numerous successful prosecutions and defenses of breach of contract actions involving many types of businesses, including claims relating to alleged breaches of licensing and joint venture agreements, leases, options to purchase and brokerage fee agreements.
• Substantial experience successfully locating, attaching and collecting assets of opposing parties.
• Recovered tens of millions of dollars for real estate developer clients in connection with claims that their joint venture partners had usurped partnership opportunities to acquire and develop real estate.
• Successfully represented numerous partners and joint venturers in connection with dissolution disputes, minority shareholder claims and/or other claims that partners/joint ventures had acted improperly and/or had breached their fiduciary obligations.

Valuation Claims

• Represented numerous clients in connection with disputes relating to the valuation of businesses and property, including eminent domain actions, tax abatement cases, disputes over PILOT agreements, “business divorces” and dissolution/partition/receivership proceedings.

Real Estate/Permitting/Land Use Claims

• Successfully handled many substantial zoning and permit appeal cases for our real estate and construction clients.
• Successfully defended and prosecuted numerous claims between owners and neighboring properties, including nuisance claims, claims of adverse possession and easements, and disputes over the use of and alleged encroachments on real property.
• Successfully represented real estate developer in connection with action seeking injunction against construction of development based upon claims of prescriptive easements over property.
• Obtained after bench trial judgment in favor of developer establishing rights to utilize neighboring property to access proposed development, which access was necessary in order for development to be permitted/constructed.
• Acting as Special Counsel to a local municipality, obtained a favorable judgment after a lengthy trial which involved complicated permitting, engineering, water supply and septic design issues, which judgment was upheld on appeal.
• Successfully represented a joint venture partner in dispute relating to buy out and valuation of a $400 million property.

Indoor Air Quality Cases

• • Successfully defended and prosecuted indoor air quality claims, including one $40 million dollar claim involving a public/private development project.

Work Experience

• Hinckley Allen
  • Construction & Public Contracts Law Group
  • Litigation Law Group
  • Partner (1995-Present)
  • Senior Associate (1990-1994)
• Fine & Ambrogne
  • Associate (1987-1990) 
• Nutter, McClennen & Fish
  • Associate (1984-1987)

Honors & Awards

• Best Lawyers in America® (2023-2025)
  • Construction Law
  • Litigation – Construction
• Boston Magazine, Top Lawyers (2022-2024)
  • Insurance
• Chambers USA (2022-2024)
  • Construction, Massachusetts: Band 2
• Martindale-Hubbell® AV/Preeminent Peer/Judicial Review Rating, Recipient (1999-2022)
• Super Lawyers, Massachusetts (2005-2015, 2017-2019)

Professional Affiliations

• American Bar Association
• Boston Bar Association
• Massachusetts Bar Association

Bar Memberships

• Massachusetts
• United States Court of Appeals for the First Circuit
• United States Court of Appeals for the Second Circuit
• United States Court of International Trade
• United States District Court for the District of Massachusetts

Publications

• Co-Lead Author Vol 57 of the Massachusetts Practice Series on Construction Law