Project Delivery Methods: A Bird’s-Eye View
November 01, 2021 —
Levi W. Barrett, Nathan A. Cohen & Stewart Shurtleff - ConsensusDocsFor centuries the ability to construct sophisticated structures has been the yardstick for measuring civilizations. Naturally, as our knowledge and capacity to build has evolved and developed over the ages, the methods of project delivery have similarly progressed.
From Design-Bid-Build to CM-at-Risk and Design-Build to Integrated Project Delivery, each method developed to fit a very specific need—but each carries its own set of inherent risks and rewards. In this article we explore key aspects and differences among the various delivery methods that are commonly used in today’s construction industry, and provide guidance related to the obligations and risk profiles of the parties involved. Ideally, contractors and construction managers may refer to the advice provided herein when determining whether a proposed delivery method properly fits the requirements of the project under consideration.
Reprinted courtesy of
Levi W. Barrett, Peckar & Abramson, P.C.,
Nathan A. Cohen, Peckar & Abramson, P.C. and
Stewart Shurtleff, Peckar & Abramson, P.C.
Mr. Barrett may be contacted at lbarrett@pecklaw.com
Mr. Cohen may be contacted at ncohen@pecklaw.com
Mr. Shurtleff may be contacted at sshurtleff@pecklaw.com
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Commonwealth Court Holds That Award of Attorney's Fees and Penalties is Mandatory Under the Procurement Code Upon a Finding of Bad Faith
October 29, 2014 —
William J. Taylor and Michael Jervis – White and Willams LLPIn a decision regarding a payment claim by a highway contractor against the City of Allentown, the Commonwealth Court of Pennsylvania has held that an award of attorney's fees and penalties is mandatory under the terms of the Pennsylvania Procurement Code, 62 Pa.C.S. § 3901 et seq., upon a finding of bad faith by the non-paying government agency, even though the statute only states that a court “may” award such fees and penalties.
In A. Scott Enterprises, Inc. v. City of Allentown, Cmwlth. Ct. No. 2163 C.D. 2013, the plaintiff, A. Scott Enterprises, Inc. (Scott), won a contract with the City of Allentown (City) to construct a one mile roadway. Several weeks after commencing work, Scott learned that soil at the construction site was potentially contaminated with arsenic, and was instructed by the City to suspend its work. Because of the soil contamination, additional work would be required to complete the project and Scott submitted proposals for the additional work plus its suspension costs. However, the City never approved the additional work and the project was never completed. The City never paid Scott for costs incurred due to the suspension of the work and Scott filed suit to recover its losses. The jury found that the City had breached the contract with Scott and had acted in bad faith in violation of the Procurement Code, and awarded damages to Scott for its unreimbursed suspension costs. However, the trial court denied Scott’s request for an award of attorney's fees and penalty interest. Both Scott and the City appealed the final judgment to the Commonwealth Court, which reversed the trial court’s refusal to award attorney's fees and penalties.
Reprinted courtesy of
William J. Taylor, White and Williams LLP and
Michael Jervis, White and Williams LLP
Mr. Taylor may be contacted at taylorw@whiteandwilliams.com; Mr. Jervis may be contacted at jervism@whiteandwilliams.com
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Wisconsin Supreme Court Holds Fire Damage Resulted from Single Occurrence
November 21, 2018 —
Brian Margolies - TLSS Insurance Law BlogIn its recent decision in Secura Ins. v. Lyme St. Croix Forest Co., LLC 2018 WI 103 (Oct. 30, 2018), the Wisconsin Supreme Court had occasion to consider whether a forest fire that caused damage to several homes and properties should be considered a single or multiple occurrences.
Secura insured Lyme St. Croix Forest Company under a general liability policy. Of relevance was the policy’s $500,000 sublimit of coverage for property damage due to fire arising from logging or lumbering operations, subject to a $2 million general policy aggregate limit. Lyme St. Croix sought coverage under the policy for a fire that resulted from its logging equipment. The fire lasted for three days, burning nearly 7,500 acres and causing damage to numerous homes and businesses.
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Brian Margolies, Traub Lieberman Straus & Shrewsberry LLPMr. Margolies may be contacted at
bmargolies@tlsslaw.com
Connecticut Court Clarifies Construction Coverage
June 28, 2013 —
CDJ STAFFThe Connecticut Supreme Court has recently ruled on a case in which breach of contract and bad-faith claims were made against an insurer in an construction defect case. Joseph K. Scully of Day Pitney LLP discussed the case in a piece on Mondaq.
Mr. Scully noted that the background of the case was that Capstone Building was the general contractor and project developer of a student housing complex for the University of Connecticut. Unfortunately, the building had a variety of problems, some of which were violations of the building code. Mr. Scully noted that the building had “elevated carbon monoxide levels resulting from inadequate venting, improperly sized flues.” Capstone entered into mediation with the University of Connecticut. Capstone’s insurer, the American Motorists Insurance Company (AMICO), declined involvement in the participation. Afterward, Capstone sued AMICO. The issues the court covered involved the insurance on this project.
The court addressed three questions. The first was “whether damage to a construction project caused by construction defects and faulty workmanship may constitute ‘property damage’ resulting from an ‘occurrence.’” The court concluded that it could “only if it involved physical injury or loss of use of ‘nondefective property.’”
The second question dealt with whether insurers were obligated to investigate insurance claims. The court, “agreeing with the majority of jurisdictions,” did not find “a cause of action based solely on an insurer’s failure to investigate a claim.” Under the terms of the contract, it was up to AMICO to decide if it was going to investigate the claim.
Thirdly, the court examined whether “an insured is entitled to recover the full amount of a pre-suit settlement involving both covered and noncovered claims after an insurer wrongfully disclaims coverage.” The court concluded that the limits are that the settlement be reasonable, the policy limit, and the covered claims.
Mr. Scully concludes that the decision will limit “the scope of coverage for construction defect claims” and “also imposes reasonable requirements on an insured to allocate a settlement between covered and noncovered claims.
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Avoiding Project Planning Disasters: How to Spot Problem Projects
December 13, 2021 —
James T. Dixon - Construction ExecutiveThe burden of project planning falls first and foremost upon a project owner. Owners have varying levels of sophistication, and the smart ones fill weak spots on their staff by engaging project managers, construction managers and owner’s representatives.
Typically, the owner then delegates the largest part of the project’s plan to the contractor in terms of creation and execution of a critical path method schedule during the construction phase. Before accepting that burden, a wise contractor will evaluate the project to determine if it is on a path to success or disaster. It is guaranteed that an owner’s problems will become the contractor’s problems in one way or another.
There are legendary projects that were also legendary planning failures. The iconic Sydney Opera House is one. The design competition began in 1955. After selecting the architect, the owner implemented a team that involved that architect, a structural engineer and an executive committee of inexperienced politicians. The original plan included a budget of $7 million (Australian) and a completion schedule spread over four years. That executive committee forced the project to start before designs were complete, doubled the number of theaters and then put a strangle-hold on the payment process, eventually causing the architect to quit and return to Europe with the construction drawings. The Opera House opened for its first performance in 1973—14 years late and $98 million over budget.
Reprinted courtesy of
James T. Dixon, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Nine ACS Lawyers Recognized as Super Lawyers – Two Recognized as Rising Stars
August 26, 2024 —
Ahlers Cressman & Sleight PLLCGoing outside the norm of our blogs, which usually discuss construction related issues, Ahlers, Cressman, & Sleight is pleased to announce that nine members of our firm have been selected to the 2024 Washington Super Lawyers list.
Each year, a rigorous process that involves a nomination by peers and a third-party verification of honors, awards, verdicts, settlements, and other criteria relating to their work as an attorney, aims to select no more than five percent of the lawyers in Washington state from no more than seventy practice areas for this distinction. As mentioned, the first step in the process is to be evaluated on their work as an attorney, next candidates are evaluated by their peers and given ratings based on the information known about their work. Finally, candidates are grouped into four firm-size categories and final selections are made. The grouping process is done so that candidates are compared fairly to their peers by firm size, eliminating the potential unfairness that comes with comparing large and small firm outcomes and attorney practices.
The Rising Star list involves an even narrower criteria than the Super Lawyers list. The initial process is the same, however, candidates for the Rising Stars list must be under the age of forty or have less than ten years of experience. For this category less the two and a half percent of lawyers in Washington are selected, making this quite a feat for those who have accomplished the honor.
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Ahlers Cressman & Sleight PLLC
Hennigh Law Corporation Wins Award Against Viracon, Inc In Defective Gray PIB Case
July 11, 2022 —
Scott Hennigh - Hennigh Law CorporationLOS ANGELES, July 08, 2022 (GLOBE NEWSWIRE) -- Hennigh Law Corporation has announced that, after an over four-year battle in and out of court, a three arbitrator panel issued a 93-page interim award in finding Viracon, Inc., liable for $13,682,840 in direct damages for defrauding the owner of the premier office building in Burbank, California, The Pointe. The matter now enters the second phase, where the arbitration panel will rule on the amount of punitive damages to assess, as well as attorney fees and interest.
Scott Hennigh, trial attorney, states, "The California construction industry is very robust with high standards. The arbitration panel appears to have recognized that California law does not tolerate large out-of-state companies misleading customers. They appear poised to send a message to Viracon about its lack of corporate responsibility."
The premier Class-A office building in Burbank, California, The Pointe, serves high-end tenants in entertainment industries such as Warner Brothers. Constructed in 2009, the 13 exterior curtain wall of the 13-story building is encased in seamless glass panels.
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Scott Hennigh, Hennigh Law CorporationMr. Hennigh may be contacted at
Scott.hennigh@hennighlaw.com
Eighth Circuit Considers Judicial Estoppel in Hazardous Substance Release-Related Personal Injury Case
April 11, 2018 —
Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law Blog On April 5, the U.S. Court of Appeals for the Eighth Circuit decided the case of
Kirk v. Schaeffler Group USA, Inc., et al., a personal injury action commenced in the U.S. District Court for the Western District of Missouri alleging injury resulting from the release of thousands of gallons of trichloroethylene (TCE) at the FAG Bearings Corporation’s (FAG Bearings) facility in Joplin, MO. The Court of Appeals reversed the District Court’s judicial estoppel ruling on the successor liability issue and concluded that the jury’s verdict on compensatory damages stands but their general verdict requires a new trial on Plaintiff’s punitive damages claim against FAG Bearings.
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Anthony B. Cavender, Pillsbury Winthrop Shaw Pittman LLPMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
