Five Frequently Overlooked Points of Construction Contracts
October 18, 2021 —
Craig H. O'Neill - White and Williams LLPThere is no shortage of articles addressing the key points of construction contracts. Just enter that phrase into any internet search engine and you will find plenty. It should go without saying that a construction contract should be in writing, it should clearly identify the scope of work to be performed and the sums to be paid for that work, and it should address the parties’ rights and responsibilities with regard to termination or suspension of the contract, correcting defective work, and handling claims and disputes—just to name a few. Of course, these items should receive their due consideration. Too often, however, other important aspects of the construction contract get shortchanged. This article aims the spotlight on five often overlooked aspects of construction contracts.
Project Schedules
Surprisingly, many construction contracts pay little attention to a central component of any construction project: the project schedule. Many contracts provide the dates of commencement and substantial completion but not much else. With the frequent use of project management techniques such as the Critical Path Method (CPM) and the associated software, it is easier than ever to identify which tasks should be prioritized and identify potential areas of delay. The owner’s contract with the general contractor should clearly define the scheduling methods used and provide measures to keep the parties informed of the progress of the work. By including basic scheduling requirements in the contract documents—such as the submission of “Baseline Project Schedules” (consistent with the contract time provisions), “Schedule Progress Updates” (comparing the progress of the work against the Baseline Project Schedule), and “Schedule Recovery Plans” (when Schedule Project Updates indicate projected delays)—the parties can avoid or reduce disputes over project delays that often lead to litigation.
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Craig H. O'Neill, White and Williams LLPMr. O'Neill may be contacted at
oneillc@whiteandwilliams.com
Construction Defects Checklist
July 18, 2018 —
Bremer Whyte Brown & O’MearaConstruction defects have existed since humans first began building structures, and will continue to be an occurrence into the future. For builder developers, contractors, and subcontractors, the specter of construction defects is a constant worry. Construction defect litigation is commonplace and can occur years after the construction project has been completed. This opens up an ongoing channel of risk and liability for construction contractors and project managers that are at risk of litigation far after they have completed a project. In this article, we’ll provide a helpful construction defects checklist that outlines the key avenues of risk and areas where construction defects litigation is most often focused. This checklist can help project managers, contractors, and subcontractors anticipate areas of their projects that may need extra attention or focus in order to ensure that they adhere to relevant local and state construction ordinances.
Gaining a greater understanding of what construction defects are can provide insight into how construction litigation can prove beneficial for structure owners or contractors who received substandard work. Many clients may not understand that they have an avenue to seek redress in cases where faulty workmanship may have resulted in economic damages or safety concerns in their home, building, or another construction project. Understanding the scope of what a construction defect is, and the areas that are most commonly litigated is helpful to understand when construction defect litigation is a viable option to pursue redress.
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Bremer Whyte Brown & O’Meara
Palm Beach Billionaires’ Fix for Sinking Megamansions: Build Bigger
June 14, 2021 —
Prashant Gopal & Amanda L. Gordon - BloombergThomas Peterffy became one of the world’s richest people by mastering risk on Wall Street. Building his Mediterranean-style mansion seven years ago on a vulnerable stretch of Florida’s Palm Beach Island was a matter of seeing the odds clearly once again. The consequences of climate change will play out over decades, and Peterffy is 76 years old.
“I don’t have a care about it at all,” he said over lunch at Mar-a-Lago earlier this year, just down the street from his home. The founder of Interactive Brokers Group has a fortune of more than $21 billion, according to the Bloomberg Billionaires Index.
“If something needs to be done to save it,” he added, “it’s not going to be my problem.”
The town of Palm Beach is busy adapting to the risks of a warming planet, even if there appear to be fewer worriers among the buyers and speculative builders on the island. Some of the lowest-lying properties in the U.S. are seeing the highest-flying prices. The real estate website Zillow estimates the value of Peterffy’s home at $52 million. This year a new nine-bedroom mansion with toes-in-the-sand views sold to financier Scott Shleifer for a record-breaking price in excess of $122 million.
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Prashant Gopal & Amanda L. Gordon, Bloomberg
Effective October 1, 2019, Florida General Contractors Have a Statutory Right to Recovery of Attorney Fees Against a Defaulted Subcontractor’s Surety
July 01, 2019 —
Warren E. Friedman - Peckar & Abramson, P.C.Florida contractors will soon have a level playing field, at least related to the right to recovery of attorney fees in certain circumstances. Effective October 1, 2019, the Florida statute by which legal fees may be recovered from insurers and sureties was amended to expressly afford that right to contractors.
Florida’s Insurance statute, Chapter 627, affords a right to recovery of attorney fees when a judgment is obtained against an insurer and in favor of any insured pursuant to a policy or contract executed by the insurer. See Fla. Stat. § 627.428. In the construction context, the Florida Legislature has also applied this right to the recovery of attorney fees from sureties, for example in circumstances where suit is brought against a surety under a payment or performance bond. See Fla. Stat. § 627.756.
But there was an oddity to this statute – it specifically provided this right for “owners” and “subcontractors”, but “contractors” were skipped over. For as long as Section 627.756, Florida Statutes has been on the books, the right to recovery of attorney fees against a surety under a payment or performance bond was only afforded to owners, subcontractors, laborers, and materialmen. Specifically, since at least 1977, Section 627.756, Florida Statutes substantially provided as follows (emphasis added):
Section 627.428 applies to suits brought by
owners, subcontractors, laborers, and materialmen against a surety insurer under payment or performance bonds written by the insurer under the laws of this state to indemnify against pecuniary loss by breach of a building or construction contract. Owners, subcontractors, laborers, and materialmen shall be deemed to be insureds or beneficiaries for the purposes of this section.
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Warren E. Friedman - Peckar & Abramson, P.C.Mr. Friedman may be contacted at
wfriedman@pecklaw.com
Cuba: Construction Boom Potential for U.S. Construction Companies and Equipment Manufacturers?
June 30, 2016 —
Sanjo Shatley, Esq. – Florida Construction Law UpdateOn July 20, 2015, diplomatic relations were officially restored between the U.S. and Cuba. Since that date, a number of significant political events have taken place. First, the U.S. reopened its embassy in Cuba on August 14, 2015. Next, on January 26, 2016, offices of the U.S. Departments of the Treasury and Commerce announced new amendments to the Cuban Assets Control Regulations and Export Administration Regulations. These amendments removed “existing restrictions on payment and financing terms for authorized exports and reexports to Cuba of items other than agricultural items or commodities,” and established “a case-by-case licensing policy for exports and reexports of items to meet the needs of the Cuban people, including those made to Cuban state-owned enterprises.”[1] Additionally, these amendments “further facilitate travel to Cuba for authorized purposes by allowing blocked space, code-sharing, and leasing arrangements with Cuban airlines, authorizing additional travel-related and other transactions directly incident to the temporary sojourn of aircraft and vessels, and authorizing additional transactions related to professional meetings and other events, disaster preparedness and response projects, and information and informational materials, including transactions incident to professional media or artist productions in Cuba.”[2] Finally, on March 21, 2016, President Barack Obama was the first sitting U.S. President to visit Cuba since the 1959 revolution, in which Fidel Castro overthrew Fulgencio Batista. This revolution ultimately led to the U.S. severing diplomatic relations in 1961 and President John F. Kennedy imposing a trade embargo between the U.S. and Cuba, which remains in effect today.
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Sanjo Shatley, Esq., Cole, Scott & Kissane, P.A.Mr. Shatley may be contacted at
sanjo.shatley@csklegal.com
White and Williams Selected in the 2024 Best Law Firms ranked by Best Lawyers®
December 04, 2023 —
White and Williams LLPWhite and Williams LLP is proud to be selected in the 2024 Best Law Firms ranked by Best Lawyers®.
The firm was recognized in the National Rankings in four practice areas including both Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law and Insurance Law (Tier 1). In addition, the firm’s office locations in Philadelphia, New York City, Boston, Baltimore, Delaware and New Jersey were recognized for 30 practice areas in the Metropolitan rankings.
Achieving a tiered ranking in Best Law Firms signals a unique combination of quality law practice and breadth of legal expertise. The Best Law Firms research methodology includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field and review of additional information provided by law firms as part of the formal submission process.
The 2024 Best Law Firms rankings can be accessed at www.bestlawfirms.com.
2024 Best Law Firms
National Tier 1
- Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law
- Insurance Law
National Tier 3
- Construction Law
- Litigation – Construction
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More Thoughts on “Green” (the Practice, not the Color) Building
February 01, 2021 —
Christopher G. Hill - Construction Law MusingsIt has been a while since I “mused” on the green building landscape. While I am a LEED AP and have presented on green (read “sustainable”) building in the past, I am not totally sold on LEED as the be all end all in sustainable construction (the USGBC is a private rating organization that, like the rest of us, is imperfect). I’ve also discussed, both here and elsewhere, the potential risks that come with any new(ish) building process.
A recent post by my fellow construction attorney Matt Bouchard (@mattbouchardesq) piqued my interest and started me thinking yet again. Matt’s recent post, entitled Is the U.S. Green Building Council Becoming a Not-So-Jolly Green Giant? outlines recent developments in the sustainable building world (remember “green” is not a specification, but a color), and some of the debate out there among those in the know. From a great infographic on the Top 10 LEED states (Virginia is 3rd) to some sniping from the USGBC (read the LEED folks) toward the GBI (Green Globes) to the fact that LEED is losing some traction as the primary governmental green building certification platform, Matt’s post is worth a read.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Additional Insured Secures Defense Under Subcontractor's Policy
October 14, 2013 —
Tred Eyerly — Insurance Law HawaiiThe court determined there were sufficient allegations in the underlying complaint and third party complaints to raise a duty to defend for the additional insured. Ill. Emcasco Ins. Co. v. Waukegan Steel Sales, 2013 Ill. App. LEXIS 624 (Ill. Ct. App. Sept. 13, 2013).
Waukegan was named as an additional insured under subcontractor I-MAXX Metalworks, Inc.'s policy with Emcasco. An employee of I-MAXX, John Walls, was injured on the job site and sued Waukegan. The complaint alleged Waukegan was negligent in failing to property manage, operate and maintain the premises.
I-MAXX had a policy with Emcasco which named Waukegan as an additional insured. The coverage was limited, however, to the additional insured's vicarious liability as a result of the insured's conduct.
Emcasco refused to defend Waukegan because the allegations of direct negligence against Waukegan were excluded by the vicariously liability provision.
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Tred EyerlyTred Eyerly can be contacted at
te@hawaiilawyer.com
