Trends in Project Delivery Methods in Construction
April 03, 2023 —
Sarah B. Biser - ConsensusDocsThe three key measures of a construction project’s success are cost, quality, and time (delays). The project delivery method that the owner of the project selects can affect each of these metrics. Project delivery methods in complex construction projects evolve as technology and processes improve. The traditional methods of design-bid-build (DBB), design-build (DB), and construction management (CM) have been the standard for many years. More recently, however, newer methods such as integrated project delivery (IPD), and public-private partnerships (PPP) have gained traction.
Design – Bid – Build (DBB)
Design-bid-build is the oldest, most commonly used method of project delivery. It involves three distinct phases: design, bid/award, and construction. An owner asks a team of professionals, such as architects, engineers, and contractors, to produce design documents that will be used to solicit bids. After the owner evaluates the bids and chooses a contractor, a construction contract is written. While this method is the most familiar and well-understood, it can lead to disputes during the construction process as changes are made to the original plans.
In DBB, the owner bears the risk for funding increased costs attributed to design changes and related delays – thanks to the Spearin Doctrine, which holds that the owner impliedly warrants the information, plans, and specifications that it provides to a general contractor. See 248 U.S. 132 (1918) Although the owner cannot claim against the contractor, it can make a claim against the design firm.
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Sarah B. Biser, Fox Rothschild LLP (ConsensusDocs)Ms. Biser may be contacted at
sbiser@foxrothschild.com
Failure to Comply with Contract Leaves No Additional Insured Coverage
January 07, 2015 —
Tred R. Eyerly – Insurance Law HawaiiIndemnity obligations and additional insured coverage were at issue in Strauss Painting, Inc. v. Mt. Hawley Ins. Co., 2014 N.Y. LEXIS 3347 (N.Y. Nov. 24, 2014).
Strauss Painting, Inc. (Strauss) contracted with the Metropolitan Opera Association, Inc. (the Met) to strip and repaint the rooftop steel carriage track for the opera house's automated window-washing equipment. The contract provided that Strauss would indemnify and hold the Met harmless. Exhibit D to the contract set forth three types of insurance that Strauss was to procure: (1) workers' compensation; (2) owners and contractors protective liability (OCP); and (3) comprehensive general liability. The OCP policy was to add the Met as an additional insured. Strauss failed to obtain the OCP policy.
At the time it contracted with the Met, Strauss had a CGL policy issued by Mt. Hawley. The policy's additional insured endorsement (ICO form CG 20 33 07 04) stated that "an insured" included "any organization for whom Strauss is performing operations when Strauss and such organization have agreed in writing that such organization be added as an additional insured."
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
2019 California Construction Law Update
January 15, 2019 —
Garret Murai - California Construction Law BlogThe California State Legislature introduced 2,637 bills during the second year fo the 2017-2018 Legislative Session. Of these, 1,016 were signed into law.
It was last official bill signing for Governor Jerry Brown who ends not only his second term as Governor but a colorful political career spanning nearly 50 years during which he has dated pop stars, practiced Zen meditation, kicked it with radical ex-nuns and an Apollo astronaut and, at 80, has sparred regularly with President Trump on issues ranging from climate change to immigration to net neutrality.
For those in the construction industry it wasn’t quite as exciting, unless of course you count SCR 120, which officially makes April “California Safe Digging Month.” Hooray!
Each of the bills discussed below took effect on January 1, 2018, except as otherwise stated.
Building Codes
SB 721 – Requires the inspection of exterior elevated elements, including balconies, decks, porches, stairways, walkways, and elevated entry structures, of multifamily buildings with three or more dwelling units by an architect, engineer or contractor with a Class A, B or C-5 license by January 1, 2025 and by January 1st every six years thereafter. Elements posing an immediate threat to the safety of occupants, or which prevent occupant access or emergency repairs, are required to be repaired immediately. Elements not posing an immediate threat to the safety of occupants, or which do not prevent occupant access or emergency repairs, are required to be repaired within 180 days.
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Garret Murai, Wendel RosenMr. Murai may be contacted at
gmurai@wendel.com
Travelers v. Larimer County and the Concept of Covered Cause of Loss
May 10, 2013 —
Brady IandiorioTravelers Indemnity Company (“Travelers”) recently won a decision against Larimer County regarding a claim for damage caused to the roofs of several buildings at the County Fairgrounds. Travelers Indemnity Company v. Board of County Commissioners for Larimer County, Slip Copy, 2013 WL 238865, p. 1 (10th Cir. 2013). Larimer County alleged, in district court, that snowstorms and the weight of the snow build-up caused damage to the roof structures. Id. After the district court found for Travelers on a motion for summary judgment, Larimer County appealed the ruling, claiming that Traveler’s was obligated under the insurance policy to pay for repair costs to portions of the roofing structure. Id.
The underlying claim for repairs originates with several snowstorms that caused damage to several buildings on the County Fairgrounds. The damage claimed was widespread to the roof structures, evidenced by rolling and buckling purlins (horizontal beams running along the length of the roof, resting upon the principal rafters at right angles and supporting the ordinary rafters). Travelers denied the claim based on its own investigation which concluded the damage was caused by design and construction defects, and therefore excluded from coverage under the insurance policy.
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Brady IandiorioMr. Iandiorio can be contacted at
iandiorio@hhmrlaw.com
Charges in Kansas Water Park Death
March 28, 2018 —
David Suggs - CDJ STAFFCaleb Schwab, a 10-year old boy was killed by decapitation on a water slide at a Kansas City water park, Schlitterbahn in 2016. Thirteen other people had suffered injuries on the ride prior to Caleb’s death ranging in severity from broken toes to concussions. Schlitterbahn employees have since claimed that park officials covered up past occurrences of water slide injuries.
Three people have been indicted in this case according to a CNN report by Marlena Baldacci, Sheena Jones and Hollie Silverman. Jeffrey Henry, the co-owner of the Schlitterbahn water park, Tyler Austin Miles, the park’s former director of operations and John Schooley.
Charges include second-degree murder, involuntary manslaughter, aggravated battery and aggravated child endangerment. Caleb suffered a fatal injury when the raft that he and the two women who were riding with him became airborne and contacted the netting attached overhead.
Investigators have found maintenance issues and ride design flaws that violate safety standards leading to lack of prevention of rafts becoming airborne during the ride. Caleb’s family will receive nearly $20 million in the settlement. Caleb’s father Scott, released a statement about placing full trust in the Attorney General Derek Schmidt who is presiding over the investigation and indictments.
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Construction Litigation Roundup: “Sudden Death”
October 17, 2023 —
Daniel Lund III - LexologyIt’s not football, though. Rather, just when you thought it was safe in Louisiana to wait to file a garden-variety construction contract payment claim, an appellate court slams the door on it – applying a statute of “repose” to your claim.
“Personal actions” – such as an action on contract – are generally subject in Louisiana to a 10-year “liberative prescription,” the applicable statute of limitations pursuant to Louisiana Civil Code article 3499.
Like some other states, Louisiana has a statute of “repose” – imposing “peremption” rather than prescription for claims having to do with construction projects – limiting those claims (generally speaking) to five years post-completion. Like other statutes of “repose,” Louisiana Revised Statute 9:2772 provides that claims on construction projects may not be filed after five years, a duration which is not subject to interruption or extension.
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
As Laura Wreaks Havoc Along The Gulf, Is Your Insurance Ready to Respond?
October 19, 2020 —
Walter J. Andrews, Michael S. Levine, Andrea DeField & Meagan R. Cyrus - Hunton Insurance Recovery BlogAs Texas and Louisiana brace for Hurricane Laura to make landfall, policyholders in the affected regions should be making last minute preparations to ensure their properties are covered in the storm’s wake.
Hurricane Laura is expected to make landfall as a Category 4 storm tonight, or early Thursday morning between Houston, Texas and Lake Charles, Louisiana. With wind speeds reaching over 120 mph, Laura has the potential for catastrophic damage to life and property and long-term disruption of normal business operations. The following three steps are crucial to ensuring that you protect your property and business and maximize insurance proceeds should your property fall in the path of this storm:
- Locate a copy of your policy.
Having your policy on hand prior to a loss will aid in starting your claim as soon as possible, as it may be more difficult to get in touch with your broker following a storm where thousands of claims are taking place simultaneously.
Reprinted courtesy of
Walter J. Andrews, Hunton Andrews Kurth,
Michael S. Levine, Hunton Andrews Kurth,
Andrea DeField, Hunton Andrews Kurth and
Meagan R. Cyrus, Hunton Andrews Kurth
Mr. Andrews may be contacted at wandrews@HuntonAK.com
Mr. Levine may be contacted at mlevine@HuntonAK.com
Ms. DeField may be contacted at adefield@HuntonAK.com
Ms. Cyrus may be contacted at mcyrus@HuntonAK.com
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Four Common Construction Contracts
August 26, 2015 —
Garret Murai – California Construction Law BlogLike Baskin Robins, construction contracts come in a variety of different flavors although, thankfully, significantly fewer than 31. Here are four of the more common types of construction contracts between project owners and contractors:
Fixed Price
Fixed price construction contracts, also commonly referred to as “lump sum” or “stipulated sum” contracts, are the most common types of construction contracts. As its name suggests, under a fixed price contract a contractor agrees to construct a project for a “fixed” or agreed upon price.
1.
Benefits: Fixed price construction contracts provide price predictability for project owners because absent changes in the scope of work, unforeseen conditions, or other circumstances which might cause the “fixed” price of the contract to go up or down, the contractor is required to complete the work for the agreed upon price.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com