Is Your Design Professional Construction Contract too Friendly? (Law Note)
July 09, 2014 —
Melissa Dewey Brumback – Construction Law North CarolinaMy husband often travels the back roads between Chapel Hill and Fuquay Varina to visit friends. En route (a circuitous route that goes past Sharon Harris Nuclear Power Plant, among other places), he passes by the “Friendly Grocery.”
[Sign]
No *Loitering*Littering*Alcoholic Beverages on Premises*Bike*Skateboard*
*10 minutes Parking Limit*Towing Enforced*
I’m not sure which is the “friendly” part of that sign. In fact, the sign seems to be the antithesis of friendly.
What does this have to do with your construction contracts? Sometimes, in an effort to please the client and/or secure the project, architects and engineers have the habit of being too friendly in their contract language. That is, you make promises or proposals that may promise too much of a good thing for the client. This can cause big problems. Bigger than being towed away from a rural grocery store in the middle of nowhere. You could be putting your insurance coverage at risk.
Have you ever promised to use “best efforts” in your design or plans? Promised to design to a specific LEED standard? Guaranteed 100% satisfaction? You might be putting your errors & omission coverage at issue. By warrantying or guaranteeing something, you are assuming a level of liability well beyond the standard of care required by law. By law, you only need to conform to the standard of care, and your insurance will only provide coverage up to that standard of care. In other words, if you make guarantees or promise “best efforts,” you are contracting to something that will *not* be insured. If something goes wrong, you will be without the benefit of your professional liability coverage.
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Melissa Dewey Brumback, Construction Law in North CarolinaMs. Brumback may be contacted at
mbrumback@rl-law.com
Florida Supreme Court Decision Limits Special Damages Presented to Juries
July 18, 2022 —
John A. Rine & Shannon Murphy - Lewis BrisboisTampa, Fla. (June 16, 2022) - Verdicts in personal injury cases are greatly impacted by the amount of medical expenses a plaintiff can present to juries. In Florida, collateral sources of compensation, such as insurance payments, are generally not disclosed to juries. However, caselaw also typically does not allow plaintiffs to recover the gross amount of medical bills, but instead the amount after insurance adjustments. For decades, Florida courts have considered whether the bills are reduced by the adjustments before or after verdict. The recent Florida Supreme Court decision in Dial v. Calusa Palms Master Association, Inc., No. SC21-43 (Fla. Apr. 28, 2022), has standardized the way past medical expenses are presented to juries where the plaintiff was treated under Medicare.
As is commonly understood, the original amount billed by medical providers is far different than the amount actually paid. Most treatment is subject to some private or government insurance and those insurers typically have negotiated rates for treatment. Thus, the bills are reduced subject to insurance contractual adjustments and the resulting net bills are far lower. For decades, defense attorneys have argued that juries should hear only the lower net amount.
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John Rine, Lewis BrisboisMr. Rine may be contacted at
John.Rine@lewisbrisbois.com
Flying Solo: How it Helps My Construction Clients
February 18, 2015 —
Christopher G. Hill – Construction Law MusingsTwo and a half years ago, on July 1, 2010, I opened my solo practice. At the time, I really had no insight into how big this change would be from a positive, customer service, perspective.
When I made the decision to go solo with my construction law practice, I knew I wanted to have flexibility to serve my client base of contractors and subcontractors in Virginia. I started some flat rate billing and had the ability to take cases that were below the dollar value of those that my old firm was willing to take. I also knew that I would be a master of my own destiny for better or worse (and it has been much more of the former than the latter).
What I did not realize is the impact that owning my own business would have on my perspective. I have always believed that, in most cases where construction disputes occur, mediation is a great option. However mediation only occurs with conflict. For any business, whether construction or otherwise, conflict creates expenses that were not likely to have been anticipated or built in to the budget. Litigation is not something that most businesses can, or should, build into their operating budgets.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Tennessee Court of Appeals Holds Defendant Has the Burden of Offering Alternative Measure of Damages to Prove that Plaintiff’s Measure of Damages is Unreasonable
July 18, 2018 —
Gus Sara - The Subrogation StrategistIn Durkin v. MTown Construction, LLC, 2018 Tenn. App. LEXIS 128, the Court of Appeals of Tennessee considered whether the lower court properly took judicial notice of an alternative measure of damages to the measure of damages advanced by the plaintiff. The Court of Appeals held that the defendant has the burden of offering evidence of alternative measures of damages if it seeks to argue that the plaintiff’s measure of the damages is unreasonable. The Court of Appeals found that the lower court erred in taking judicial notice of alternative measures of damage when the defendant failed to meet its burden of proof. The court’s holding establishes that, if the defendant does not offer evidence of alternative measures of damage, then the measure of damages introduced by the plaintiff will apply.
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Gus Sara, White and Williams LLPMr. Sara may be contacted at
sarag@whiteandwilliams.com
Force Majeure and COVID-19 in Construction Contracts – What You Need to Know
April 06, 2020 —
Brenda Radmacher & Jason Suh - Gordon & Rees Construction Law Blog“Force Majeure” – While most construction contracts contain these provisions, they are often not understood in relation to the implications they may have on construction projects. With the onset of the COVID-19 pandemic, we are all taking a closer look at many portions of our contracts. The following is a brief primer on how to understand your construction contract and its potential implications on your business in this season of change.
What is a Force Majeure?
Construction contracts usually take into consideration that the parties want to agree at the outset on who bears the risk of unforeseen incidents that may affect the project’s progression. These issues are generally handled in a “force majeure” clause. Force majeure, according to Mariam Webster’s Dictionary is a “superior or irresistible force; or an event or effect that cannot be reasonably anticipated or controlled.” To be deemed a force majeure, generally the circumstances must be outside of a party’s control which makes performance impossible, inadvisable, commercially impractical, or illegal. In addition to being unforeseeable, the circumstances must have external causation, and be unavoidable. However, the key to understanding if COVID-19 will be deemed a condition that will excuse a contractor’s performance is the specific language in the provision.
Generally force majeure events are unavoidable events such as “acts of God,” most notably weather conditions including hurricanes, tornadoes, floods, earthquakes, landslides, and wildfires, as well as certain man-made events like riots, wars, terrorism, explosions, labor strikes, and scarcity of energy supplies. However, there is not much case law or specifics on conditions similar to COVID-19.
Reprinted courtesy of
Brenda Radmacher, Gordon & Rees and
Jason Suh, Gordon & Rees
Ms. Radmacher may be contacted at bradmacher@grsm.com
Mr. Suh may be contacted at jwsuh@grsm.com
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Arezoo Jamshidi Selected to the 2023 San Diego Super Lawyers List
April 03, 2023 —
Arezoo Jamshidi - Haight Brown & Bonesteel LLPCongratulations to Arezoo Jamshidi who has been selected to the 2023 San Diego Super Lawyers list. Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, part of Thomson Reuters, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers magazines also feature editorial profiles of attorneys who embody excellence in the practice of law.
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Arezoo Jamshidi, Haight Brown & Bonesteel LLPMs. Jamshidi may be contacted at
ajamshidi@hbblaw.com
Top 10 Take-Aways from the 2024 Annual Forum Meeting in New Orleans
May 20, 2024 —
Marissa L. Downs & Brendan Witry - Laurie & Brennan, LLPOver 600 construction lawyers, experts, and consultants met in New Orleans last week for the Forum’s 2024 Annual Meeting where Program Coordinators Brenda Radmacher and Joseph Imperiale together with John Cook and Buck Beltzer put together an insightful program focused on all things construction litigation. Here are our 10 top take-aways from this unique program.
10. Don't underestimate the soft skills that are necessary to effectively represent your clients. There are different ways to measure success when it comes to construction litigation, according to Stephen Dale (WSP USA), Melissa Beutler Withy (Big-D), and Matthew Whipple (Wohlsen Construction). What these (and likely other inside counsel) will look for when retaining outside counsel is the ability to accurately forecast litigation expense and timely communicate case developments. Being able to master these "soft" skills is as important (if not more so) as an attorney's aptitude for trial advocacy. The in-house counsel who hire litigation counsel will be held accountable to deliver results on the investment they are making in legal fees. Outside counsel who cannot manage budgets or avoid surprises in the course of a case will not be successful as litigators.
Reprinted courtesy of
Marissa L. Downs, Laurie & Brennan, LLP and
Brendan Witry, Laurie & Brennan, LLP
Ms. Downs may be contacted at mdowns@lauriebrennan.com
Mr. Witry may be contacted at bwitry@lauriebrennan.com
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Contractors and Owners Will Have an Easier Time Identifying Regulated Wetlands Following Recent U.S. Supreme Court Opinion
August 01, 2023 —
David Scriven-Young - ConsensusDocsContractors appreciate how difficult it often is on a technical level to perform work in or near wetlands or other environmentally sensitive areas. Such work is even more difficult due to the complex, and ever-changing regulations issued by the United States Environmental Protection Agency (“EPA”) under the Clean Water Act (“CWA”). The CWA applies to “navigable waters”, which are defined as “the waters of the United States.” To determine whether certain wetlands are in fact “the waters of the United States”, contractors and owners have had to engage in a fact-intensive “significant-nexus” determination dependent upon a lengthy list of hydrological and ecological factors found in the regulations. Recently, the U.S. Supreme Court struck down the applicability of those regulations and instituted a simpler test to determine whether wetlands on an owner’s property fall within them.
In
Sackett v. EPA, the Sacketts purchased property near a lake in Idaho. In preparation for building a home, they began backfilling the site with dirt and rocks. A few months later, the EPA sent the Sacketts a compliance order informing them that their backfilling violated the CWA because their property was part of protected wetlands. The EPA demanded that the Sacketts immediately undertake activities to restore the site and threatened the Sacketts with penalties of over $40,000 per day if they did not comply. According to the EPA, the wetlands on the Sacketts’ lot fell under the jurisdiction of the CWA because they were “adjacent to” (i.e., in the same neighborhood as) an unnamed tributary on the other side of a 30-foot road, which fed into the nearby lake. The EPA concluded that the Sacketts’ wetlands, when considered together with a large nearby wetland complex, significantly affected the ecology of the lake. Thus, the EPA charged that the Sacketts had illegally dumped soil and gravel into “the waters of the United States.”
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David Scriven-Young, Peckar & Abramson PCMr. Scriven-Young may be contacted at
dscriven-young@pecklaw.com
