Read Before You Sign: Claim Waivers in Project Documents
July 06, 2020 —
William E. Underwood - ConsensusDocsNot all claim waivers are appropriately titled “Waiver of Claims.” In fact, claim waivers can be found “hiding” without any advertisement or fanfare in a number of project documents, including change orders and applications for payment. So although getting work quickly approved and paid for is important, taking time to read the specific language in your project documents is just as important. Failure to pay close attention to this language could result in the waiver of key, unresolved project claims.
Further, and although it should go without saying, it is also just as important to read all of the terms of your contract. Important waiver language might not exist on the face of form project documents, but rather might be contained in the general and/or supplemental conditions of your contract and automatically incorporated into your form project documents. And these types of incorporated waivers can be just as enforceable.
So it is critically important to understand what you are signing and the implications it might have on future claims. This article will explore some of the common types of claim waivers that can be found in project documents so that you are better positioned to avoid inadvertently waiving claims in the future.
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William E. Underwood, Jones Walker LLPMr. Underwood may be contacted at
wunderwood@joneswalker.com
Does Your 998 Offer to Compromise Include Attorneys’ Fees and Costs?
June 15, 2017 —
Anthony J. Carucci - Snell & Wilmer Real Estate Litigation BlogIn California, the “prevailing party” in litigation is generally entitled to recover its costs as a matter of law. See Cal. Code Civ. Proc. § 1032. But under California Code of Civil Procedure section 998, a party may make a so-called “offer to compromise,” which can reverse the parties’ entitlement to costs after the date of the offer, depending on the outcome of the litigation. Cal. Code Civ. Proc. § 998. The potential payoff of a 998 offer to compromise is explained in section 998(c)(1):
If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer.
Cal. Code Civ. Proc. § 998(c)(1) (emphasis added).
The Basic Requirements for a Valid 998 Offer
Pursuant to section 998(b), a 998 offer must satisfy three principal conditions: (1) it must be contained in a writing; (2) it must state the terms and conditions of the proposed judgment or award; and (3) it must contain a provision allowing the offeree to accept the offer by signing a statement to that effect. Cal. Code Civ. Proc. § 998(b).
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Anthony J. Carucci, Snell & WilmerMr. Carucci may be contacted at
acarucci@swlaw.com
Third Circuit Affirms Use of Eminent Domain by Natural Gas Pipeline
November 28, 2018 —
Anthony B. Cavender - Gravel2GavelOn October 30, the U.S. Court of Appeals for the Third Circuit decided the case of Transcontinental Gas Pipe Line Co., LLC v. Permanent Easements for 2.14 Acres, et al. , affirming the District Court’s grant of a preliminary injunction to Transcontinental Gas Pipe Line Company, LLC (Transcontinental). This case involves the construction of the “Atlantic Sunrise Expansion Project,” a natural gas pipeline that runs through Pennsylvania, Maryland, Virginia, North Carolina and South Carolina.
Under the Natural Gas Act (NGA), pipeline companies can exercise powers of eminent domain when they are acting in the public interest. The Third Circuit cautions that this is a “standard” eminent domain power, and not a “quick take” that is permitted under another statute.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
After Sixty Years, Subcontractors are Back in the Driver’s Seat in Bidding on California Construction Projects
September 22, 2016 —
William L. Porter – Porter Law Group BulletinFor almost the last sixty years, the standard for bidding on California construction projects has been governed by the landmark case of Drennan v. Star Paving (1958) 51 Cal.2d 409; which generally states that the contractor bidding to perform work for a project owner is entitled to rely on the bids of subcontractors in formulating its own bid to do the work. Under the equitable legal doctrine of “promissory estoppel”, which serves as the foundation of the Drennan case, even though there was no actual “contract” between the contractor and subcontractor at the time of bid, the contractor was entitled to enforce the subcontractor’s bid in reliance on this doctrine. For bidding purposes, promissory estoppel serves as an equitable substitute for an actual contract. The courts have, since that time, allowed promissory estoppel to act as a substitute for the contract in public bidding because, in equity, when a contractor “reasonably” relies on a subcontractor’s bid in formulating its own bid, it would be unjust to allow the subcontractor to withdraw a bid on which the contractor had relied in submitting its own successful bid.
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
Motion to Strike Insurer's Expert Opinion Granted
August 13, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe court granted the insured's motion to strike the testimony of the insurer's expert because the opinion lacked sufficient explanation or analysis. Affinity Mut. Ins. v. Thacker Air Conditioning Refrigeration Heating, 2019 U.S. Dist. LEXIS 84713 (N.D. Ind. May 20, 2019).
The insured owned a market that needed renovations. The roof over an addition to the market extended from the wall of the extension to the top of the existing roof. The area between the old and new roofs was filled with blown-in insulation, so that the structural support from the new overbuilt roof was not visible. The weight of the overbuilt roof rested on top of the existing roof at the point where they met. This added additional weight on the trusses supporting the main roof.
In 2014, the market upgraded the building with heating and insulation. Thacker was a subcontractor for work on the hearing system. Six gas furnaces, spaced about 35 feet apart along the length of the building, were placed by Thacker. The total weight of each unit was estimated at 280 pounds.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Critical Materials for the Energy Transition: Of “Rare Earths” and Even Rarer Minerals
September 12, 2022 —
Robert A. James, Ashleigh Myers, Shellka Arora-Cox & Amanda G. Halter - Gravel2Gavel Construction & Real Estate Law BlogAs the world pursues ambitious net-zero carbon emission goals, demand is soaring for the critical materials required for the technologies leading the energy transition. Lithium may be the most well-known of these inputs due to its usage in batteries for vehicles and consumer electronics, but roughly 50 other minerals are central to energy transition technologies. During the coming years, producers, manufacturers and end-users will be increasingly exposed to the roles played by “rare earth” elements (roughly, atomic numbers 57 to 71), platinum group metals, and other materials.
The reasons for this heightened interest are simple—even if the underlying environmental, political and technological forces at play are complex:
- Lower-carbon technologies use different materials than carbon-intensive technologies.
The mineral requirements of power and mobility systems driven by renewable, nuclear, hydrogen and fusion energy are profoundly different from those forming the backbone of fossil fuel systems. Minerals such as lithium, nickel, copper, cobalt, and rare earth elements are vital for electric vehicles (EVs), batteries, fuel cells, electricity grids, wind turbines, smart devices, and many other essential and proliferating civilian and military technologies. For example, an offshore wind plant needs 13 times more mineral resources than a gas power plant of a similar size.
Reprinted courtesy of
Robert A. James, Pillsbury,
Ashleigh Myers, Pillsbury,
Shellka Arora-Cox, Pillsbury and
Amanda G. Halter, Pillsbury
Mr. James may be contacted at rob.james@pillsburylaw.com
Ms. Myers may be contacted at ashleigh.myers@pillsburylaw.com
Ms. Arora-Cox may be contacted at shellka.aroracox@pillsburylaw.com
Ms. Halter may be contacted at amanda.halter@pillsburylaw.com
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BHA Sponsors the 9th Annual Construction Law Institute
January 21, 2016 —
CDJ STAFF Bert L. Howe & Associates, Inc. is proud to be partnering with the Florida Bar Continuing Legal Education Committee and the Construction Law Committee of the Florida Bar Real Property, Probate and Trust Law Section, as a sponsor and exhibitor at 9th Annual Construction Law Institute to be held March 11th, 12th & 13th, 2016 at the JW Marriott Orlando Grande Lakes in Orlando.
With offices in Miami serving all of Florida, Bert L. Howe & Associates, Inc. (BHA) offers the experience of over 20 years of service to carriers, defense counsel, and insurance professionals as designated experts in nearly 6,000 cases. BHA’s staff encompasses a broad range of licensed and credentialed experts in the areas of general contracting and specialty trades, as well as architects, and both civil and structural engineers, and has provided services on behalf of developers, general contractors and sub-contractors.
BHA’s experience covers the full range of construction defect litigation, including single and multi-family residential (including high-rise), institutional (schools, hospitals and government buildings), commercial, and industrial claims. BHA specializes in coverage, exposure, premises liability, and delay claim analysis as well.
As the litigation climate in Florida continues to change, and as the number of construction defect and other construction related cases continues to rise, it is becoming more important for contractors and builders here to be aggressive in preparing for claims before they are made, and in defending against those claims once they are filed. Since 1993, Bert L. Howe & Associates has been an industry leader in providing construction consulting services, and has been a trusted partner with builders and insurance carriers, both large and small, across the Western and Southern United States. Here in Florida, we have been providing construction defect and construction-claims related forensic expert services for the past decade with a proven track record of successful results.
For those of you planning on attending the conference, or those who may know someone who will be, we encourage you to stop by the BHA booth and we welcome the opportunity to discuss further the broad range of services provided by BHA.
For your convenience, here is a link to the registration page for the 9th Annual Construction Law Institute:
http://www.floridabar.org/FBWEB/CLEReg.nsf/zLocations2/MAOS-A4UK4Z?OpenDocument
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Required Contract Provisions for Construction Contracts in California
October 08, 2014 —
Garret Murai – California Construction Law BlogOne question I get fairly often when drafting or reviewing construction contracts is what provisions, if any, are required in construction contracts in California. This is, of course, different than what should be included in a construction contract which is a post for another day. So, here you go:
Provisions Required in All Construction Contracts
There’s only one requirement applicable to all construction contracts in California. And, that is, that you must include your California contractor’s license number if you are performing or bidding on work requiring a license. California Business and Professions Code section 7030.5 requires that licensed contractors include their license number in “(a) all construction contracts; (b) subcontracts and calls for bid; and (c) all forms advertising, as prescribed by the register of contractors, used by such person.”
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Garret Murai, Kronick Moskovitz Tiedemann & GirardMr. Murai may be contacted at
gmurai@kmtg.com
