You Cannot Always Contract Your Way Out of a Problem (The Case for Dispute Resolution in Mega and Large Complex Construction Projects)
September 16, 2024 —
Lisa D. Love - The Dispute ResolverMost experienced commercial transaction and construction attorneys strive to negotiate a concisely written and well-drafted contract that addresses all scenarios and issues that creative and highly contemplative professionals can conjure. Although contracts are extremely important in construction projects, “you can’t generally contract your way out of a problem,” states Michael Loulakis, a founder of Capital Project Strategies, LLC and a nationally recognized expert on project delivery systems in complex public sector design-build projects and public-private partnership programs. Loulakis adds, “the contract certainly matters. But particularly when the losses are big, litigators prosecuting the contractors often find effective ways to argue that facts and circumstances trump the contract.” However, “the difference between the best construction projects and the worst construction projects is not the written words of the contracts but how the parties have committed to engage collaboratively and with trust to complete the project,” notes Robynn Thaxton, an attorney and consultant with Thaxton Parkinson PLLC and Progressive Design-Build Consulting, LLC and one of the leading experts in construction law and alternative procurement on a national basis.[i]
In large, complex construction projects, the need for parties to collaboratively resolve disputes is highlighted by the judicial acceptance of the “Doctrine of the Contextual Contract”[ii] to interpret construction contracts. “As construction’s increasing technological and managerial complexity came to be recognized, some common law courts began turning away from strict interpretation of language within the four corners of a contract and moving toward recognizing in the enforcement of contracts the construction industry’s own experience, customs, practices and implied conditions and duties and the factual context underlying the contract. Courts [began the journey] along the road from ‘text’ to ‘context.’”[iii] Thus, the precise wording of the contract has become less important and industry practices and other conditions provide insight for resolving disputes. Consequently, despite the specific language of any construction contract and the clear allocation of responsibilities and risks, early dispute evaluation and resolution are critical to a successful project.
Read the court decisionRead the full story...Reprinted courtesy of
Lisa D. Love, JAMS
Court Rejects Efforts to Limit Scope of Judgment Creditor’s Direct Action Under Insurance Code Section 11580
May 01, 2019 —
Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLPIn Ins. Co. of St. of PA v. Amer. Safety Indemnity Co. (No. B283684, filed 3/1/19) (“ICSOP”), a California appeals court rejected one insurer’s efforts to limit the scope of another insurer’s direct action as a judgment creditor under Insurance Code section 11580(b)(2).
In ICSOP, homeowners filed a claim in arbitration against their general contractor alleging damages from subsidence. While the arbitration was pending, the general contractor filed suit against the grading subcontractor seeking indemnity and contribution. The complaint attached the homeowners’ complaint in arbitration pleading damages of $2.3 million, and alleged that the subcontractors had a duty to indemnify for those damages. The arbitrator awarded the homeowners $1.1 million.
The general contractor was insured by plaintiff ICSOP, which paid the arbitration award. A default judgment was entered against the grading subcontractor for $1.5 million, that included both the arbitration award plus $356,340 for the general contractor’s attorney’s fees. American Safety insured the grading subcontractor but refused to indemnify ICSOP. ICSOP then sued American Safety on the default judgment, pursuant to Insurance Code section 11580(b). The trial court granted summary judgment for ICSOP and the appeals court affirmed.
Mr. Kendrick may be contacted at ckendrick@hbblaw.com
Ms. Moore may be contacted at vmoore@hbblaw.com
Reprinted courtesy of
Christopher Kendrick, Haight Brown & Bonesteel LLP and
Valerie A. Moore, Haight Brown & Bonesteel LLP Read the court decisionRead the full story...Reprinted courtesy of
Morrison Bridge Allegedly Crumbling
February 05, 2015 —
Beverley BevenFlorez-CDJ STAFFThe Portland Mercury reported that the Portland, Oregon Morrison Bridge’s structure is breaking into pieces.
"The bridge is crumbling," Joel Mullin, attorney from Stoel Rives representing the county told a Multnomah County judge, according to the Portland Mercury. "The deterioration has accelerated more than anticipated."
Newly released documents seem to imply that the bridge “project was doomed well before it started, and county officials should have known it,” the Portland Mercury reported.
Read the court decisionRead the full story...Reprinted courtesy of
Pine Island Bridge in Place as Florida Pushes Barrier Island Access in Ian's Wake
October 10, 2022 —
Derek Lacey - Engineering News-RecordA temporary bridge is in place for Pine Island, Fla., after state officials mobilized crews to restore mainland access to barrier islands cut off when Hurricane Ian washed away roads and bridges last month.
President Joe Biden (D) joined Florida Gov. Ron DeSantis (R) on Oct. 5 in touring the hardest-hit parts of the state, with the governor announcing the five-day emergency Pine Island project and plans to finish repair of the causeway to Sanibel Island by the end of October.
Reprinted courtesy of
Derek Lacey, Engineering News-Record
Mr. Lacey may be contacted at laceyd@enr.com
Read the full story... Read the court decisionRead the full story...Reprinted courtesy of
California Team Secures Appellate Victory on Behalf of Celebrity Comedian Kathy Griffin in Dispute with Bel Air Neighbor
August 04, 2021 —
Jeffry Miller, Wendy Dowse, Dana Fox & Michael Moss - Lewis BrisboisSan Diego Appellate Partner Jeffry A. Miller, Indian Wells Appellate Partner Wendy S. Dowse, and Los Angeles Partners Dana Alden Fox and Michael Moss recently prevailed in an appeal from a judgment entered after the trial court granted Lewis Brisbois clients Kathy Griffin and Randy Bick, Jr.’s motion for summary adjudication of the plaintiffs’ causes of action for invasion of privacy and violation of California Penal Code section 632, which prohibits recording confidential communications.
As reported by Law360 in an article titled "Kathy Griffin Beats Calif. Neighbors' Backyard Spying Suit," and in a Bloomberg Law article titled "Comedian Kathy Griffin Beats Neighbor’s Invasion of Privacy Suit," the plaintiffs initially filed suit against Griffin and Bick, Jr. in 2018, alleging that their home security cameras recorded “every move and every communication” in the plaintiffs’ private backyard. They argued that the defendants' use of the security system invaded their privacy and violated California law. Prior to the lawsuit, Griffin and Bick, Jr. had made noise complaints about the plaintiffs to their homeowners' association and to the Los Angeles Police Department. The plaintiffs learned of the defendants' security cameras after a profane rant directed at the defendants and related to their noise complaint was recorded and reported in the media.
Reprinted courtesy of
Jeffry Miller, Lewis Brisbois,
Wendy Dowse, Lewis Brisbois,
Dana Fox, Lewis Brisbois and
Michael Moss, Lewis Brisbois
Mr. Miller may be contacted at Jeff.Miller@lewisbrisbois.com
Ms. Dowse may be contacted at Wendy.Dowse@lewisbrisbois.com
Mr. Fox may be contacted at Dana.Fox@lewisbrisbois.com
Mr. Moss may be contacted at Michael.Moss@lewisbrisbois.com
Read the court decisionRead the full story...Reprinted courtesy of
COVID-19 Response: California Occupational Safety and Health Standards Board Implements Sweeping New Regulations to Prevent COVID-19 in the Workplace
December 14, 2020 —
Peter Shapiro, Drake Mirsch & Jade McKenzie - Lewis BrisboisOn November 19, 2020, the California Occupational Safety and Health Standards Board (OSHSB) proposed sweeping and significant new emergency standards to reduce employee exposure to COVID-19. These standards have been accepted by the Office of Administrative Law and are effective as of November 30, 2020. Accordingly, it is critical that employers familiarize themselves with these new requirements and begin to implement these standards as quickly as possible.
The standards include COVID-19 prevention in the workplace, multiple COVID-19 infections and outbreaks in the workplace, “major” COVID-19 outbreaks in the workplace, prevention in employer provided housing, and prevention in employer-provided transportation to and from work. They apply to all California employers and places of employment, except places with one employee who does not have contact with others, employees working from home, or employees in specified health care facilities, services or operations when covered by section 5199.
COVID-19 Prevention Program
Employers are required to establish, implement, and maintain an “effective” written COVID-19 Prevention Program. Under the Program, an employer is responsible for developing a system for communicating about COVID-19, identifying and evaluating COVID-19 hazards, investigating and responding to COVID-19 cases, correcting COVID-19 hazards, providing training and instructions to employees regarding COVID-19, ensuring all employees are physically distanced, providing face coverings, implementing policies regarding personal protective equipment and recordkeeping, ensuring COVID-19 cases are excluded from the workplace, and prohibiting symptomatic employees from returning to work unless certain requirements are met.
Reprinted courtesy of
Peter Shapiro, Lewis Brisbois,
Drake Mirsch, Lewis Brisbois and
Jade McKenzie, Lewis Brisbois
Mr. Shapiro may be contacted at Peter.Shapiro@lewisbrisbois.com
Mr. Mirsch may be contacted at Drake.Mirsch@lewisbrisbois.com
Ms. McKenzie may be contacted at Jade.Mckenzie@lewisbrisbois.com
Read the court decisionRead the full story...Reprinted courtesy of
As Natural Gas Expands in Gulf, Residents Fear Rising Damage
July 11, 2022 —
The Associated Press (Cathy Bussewitz & Martha Irvine) - BloombergLake Charles, Louisiana (AP) -- The front lawn of Lydia Larce’s home is strewn with debris: Remnants of cabinets and chunks of pink shower marble lie between dumpsters. She lives in a FEMA trailer out back, her home in shambles more than a year after Hurricane Laura tore through Lake Charles.
Larce, like many in Southwest Louisiana, has what she calls “storm PTSD.” Tornado warnings trigger anxiety. She fidgets and struggles to sleep.
"The fear and the unknown — it has me on an edge,” Larce said. “I’m scared.”
A string of devastating hurricanes has torn through this region in recent years. Nationally, too, there have been more Category 4 and 5 hurricane landfalls in the past five years than in the previous 50 years combined. Larce and her neighbors know they are on the front lines of climate change.
Her region is now the epicenter of a trend that she fears will make those disasters even more destructive.
Developers plan to build a series of liquefied natural gas export facilities across Southwest Louisiana, already the heart of the industry. Even in a state with a heavy industrial base, these facilities are among the largest emitters of greenhouse gases in Louisiana.
Read the court decisionRead the full story...Reprinted courtesy of
Bloomberg
When Can Customers Sue for Delays?
September 18, 2023 —
Scott L. Baker - Los Angeles Litigation BlogConstruction projects are subject to many internal and external factors. Due to this, delays are not an uncommon occurrence. Whether delays are the result of bad weather conditions or supply chain issues, contractors and their clients cannot control every aspect of the project.
Delay issues are very
common construction disputes. Therefore, new and experienced contractors alike need to know when their clients may have a reason for a delay claim.
2 particular types of delays that pose a risk
Common obstacles that contractors faced during the height of the COVID-19 global pandemic involved supply chain issues. The lack of materials put various projects on hold across California and the country. This widespread issue was out of contractors’ and clients’ control, meaning they were excusable delays.
Read the court decisionRead the full story...Reprinted courtesy of
Scott L. Baker, Baker & AssociatesMr. Baker may be contacted at
slb@bakerslaw.com
