Wisconsin Court Enforces Breach of Contract Exclusion in E&O Policy
July 21, 2018 —
TLSS Insurance Law BlogIn its recent decision in Crum & Forster Specialty Ins. Co. v. GHD Inc.,2018 U.S. Dist. LEXIS 111827 (E.D. Wisc. July 5, 2018), the United States District Court for the Eastern District of Wisconsin had occasion to consider the application of a breach of contract exclusion in a professional liability policy.
Crum’s insured, DVO, was sued in connection with its contract to construct a biogas converter mechanism. The underlying suit alleged a sole cause of action; namely, breach of contract based on DVO’s failure to have fulfilled its obligations to design the mechanism to specification.
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Traub Lieberman Straus & Shrewsberry LLP
Contractual Waiver of Consequential Damages
January 02, 2019 —
David Adelstein - Florida Construction Legal UpdatesContractual waivers of consequential damages are important, whether they are mutual or one-sided. I believe in specificity in that the types of consequential damages that are waived should be detailed in the waiver of consequential damages provision. Standard form construction agreements provide a good template of the types of consequential damages that the parties are agreeing to waive.
But, what if there is no specificity in the waiver of consequential damages provision? What if the provision just states that the parties mutually agree to waive consequential damages or that one party waives consequential-type damages against the other party? Let me tell you what would happen. The plaintiff will argue that the damages it seeks are general damages and are NOT waived by the waiver of consequential damages provision. The defendant, on the other hand, will argue that the damages are consequential in nature and, therefore, contractually waived. FOR THIS REASON, PARTIES NEED TO APPRECIATE WHAT DAMAGES ARE BEING WAIVED OR LIMITED, AND POTENTIALLY THOSE DAMAGES NOT BEING WAIVED OR LIMITED, WHEN AGREEING TO A WAIVER OF CONSEQUENTIAL DAMAGES PROVISION!
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Documenting Contract Changes in Construction
December 07, 2020 —
J.D. Holzheauser - Construction ExecutiveConstruction projects are almost inevitably subject to changes in the contract. A fundamental understanding of construction changes, how those changes are governed and what is necessary to ensure a complete change are of paramount importance to all parties involved in a construction project. This article is not a treatise on construction contract changes; rather, it provides advice on actions a contractor can take during construction that will help the contractor recover time or money when a contract’s schedule or scope of work needs to be changed.
Changes Defined
Changes to a construction project affect two broad spheres—timing and scope of work. Changes usually present themselves as either a change order or a change directive. Each may go by a different name depending on the contractual scheme in the project’s prime contract, but they essentially have the same characteristics.
The difference between a change order and a change directive is one of agreement. A change order (in the owner-prime contractor context) occurs when the contractor and the owner agree to a change in the timing or scope of work in the contract. Normally, the change order is a written agreement to change the contract and is executed by the contractor and owner.
Reprinted courtesy of
J.D. Holzheauser, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Mr. Holzheauser may be contacted at jdholzheauser@pecklaw.com
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Mitigation, Restructuring and Bankruptcy: Small Business Tools in the Era of COVID-19
June 08, 2020 —
Hannah Kreuser - Porter Law GroupThe impact of the COVID-19 pandemic has been sudden and severe. Worldwide, populations are dealing with a public health crisis, which has abruptly impacted the economy. As cases continue to increase across the United States, both the federal government and state governments, including California, are directing people to “shelter in place” and “socially distance” from each other in an attempt to curb the spread of the virus. These orders have generally shut down daily life except for “essential” businesses. As a direct result, the economy has come to an abrupt halt and many businesses have been forced to close or significantly reduce their operations.
Concern for this economic impact is, in part, due to the speed and severity with which it has affected so many industries. With the current economic conditions, there is much speculation that bankruptcy filings, among not only individuals, but small businesses, will see a sudden increase in the coming months. Experts agree that filings will increase, the only question is when.
Because of COVID-19’s economic impact, it is important that businesses make an assessment now, regarding their needs, assets, and liabilities, so they can best prepare to survive COVID-19, or to take proactive steps in preparing to enter bankruptcy or wind down. In making this assessment, one of the questions to ask is whether the business can survive with quick financing, to help bridge the gap between the current operating conditions and their return to normal.
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Hannah Kreuser, Porter Law GroupMs. Kreuser may be contacted at
hkreuser@porterlaw.com
Understand Agreements in Hold Harmless and Indemnity Provisions
June 06, 2022 —
Jeffrey Cavignac - Construction ExecutiveOne of the most important provisions in a construction contract is the indemnity provision. An indemnity provision, which usually includes a requirement to hold harmless and defend another party, is included in nearly all construction contracts. Generally speaking, the upstream party (a general contractor or owner, for example) is attempting to shift risk to a downstream party (the general contractor or a subcontractor). In simple terms, subject to certain parameters, the downstream party is agreeing to be responsible for the upstream parties’ mistakes.
DEFINING INDEMNIFICATION
Insurance brokers focused on development and construction businesses get asked frequently: “If we sign this, are we insured?” It would be great if this could be answered “yes” or “no,” but life is rarely that straightforward. To understand whether a specific indemnification is insurable, we have to drill down on the actual provision. Let’s look at a typical indemnification below:
“To the fullest extent permitted by law the Contractor shall indemnify, defend and hold harmless the owner, architect, architect’s consultants and agents and employees of any of them from and against any claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the work whether caused in whole or in part by the contractor, a subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable.”
Reprinted courtesy of
Jeffrey Cavignac, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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OSHA Begins Enforcement of its Respirable Crystalline Silica in Construction Standard. Try Saying That Five Times Real Fast
November 02, 2017 —
Garret Murai - California Construction Law BlogOn October 23, 2017, the U.S. Occupational Safety and Health Administration (OSHA) began enforcement of its Respirable Crystalline Silica in Construction Standard (Construction Silica Standard). OSHA enforcement of its Construction Silica Standard actually began on September 23, 2017, but for a period of 30 days, OSHA offered compliance assistance in lieu of enforcement for employers who were making good faith efforts to comply with the Construction Silica Standard.
California’s Occupational Safety and Health Administration (Cal/OSHA) has a nearly identical construction silica standard that requires employers to limit worker exposure to respirable crystalline silica above 25 micrograms per cubic meter of air (25 μg/m3) as an 8-hour time-weighted average (TWA) under any foreseeable condition.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Real Estate & Construction News Roundup (4/24/24) – Omni Hotels Hit with Cyberattack, Wisconsin’s Low-Interest Loans for Home Construction, and Luxury Real Estate Sales Increase
May 20, 2024 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, alternative lenders take the lead in CRE loans, construction workers worry about artificial intelligence, prospective homeowners express concerns about climate risks, and more!
- Even as overall real estate sales fell 4% nationwide in the first quarter, luxury real estate sales increased more than 2%, posting their best year-over-year gains in three years. (Robert Frank, CNBC)
- As many banks cut back from commercial real estate loans amid rising interest rates and a regional banking crisis that exploded in early 2023, a number of alternative lenders jumped in to lead the way. (Andrew Coen, Commercial Observer)
- Workers in construction and other industries are worried about artificial intelligence, and it’s keeping their companies from moving forward more decisively with the surging technology. (Matthew Thibault, Construction Dive)
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Pillsbury's Construction & Real Estate Law Team
Construction Defect Case Not Over, Despite Summary Judgment
November 07, 2012 —
CDJ STAFFThe Supreme Court of Oregon has concluded in an en banc decision that a motion to reconsider a summary judgment is not a motion for a new trial. In coming to their conclusion the court overturned an earlier Oregon Supreme Court case, Carter v. U.S. National Bank. Although the decision does not bear on construction defects, the underlying case did. Due to the decision, these claims can now be evaluated in a trial.
The case, Association of Unit Owners of Timbercrest Condominiums v. Warren, came about after an apartment complex was converted into condominium units. The developers hired Big Al’s Construction for some of the remodeling work. The condominium association later sued the developer and the contractor over claims of construction defects. The defendants filed a motion for summary judgment, which the court granted.
But that wasn’t the end of things. The plaintiff soon filed a “motion to reconsider,” noting that the summary judgment seemed to be in conflict with both law and other recent rulings, and additionally, the grounds for the decision were not in the order. The judge then notified the parties that the court had “pulled the trigger too quickly” and had seven questions for the parties to answer.
The court dismissed all claims against the defendants. The defendants filed their responses, objecting that that “‘there is no such thing’ as a motion for reconsideration.” Further, while “the rules do allow for post-judgment review of pre-judgment rulings through a motion for a new trial,” the plaintiffs had not filed for a new trial. But did they need one? They did file an appeal.
The judge in the case admitted that there was no such thing as a motion to reconsider, and felt bad about prematurely signing the judgment. The case was sent to the Court of Appeals to determine if the motion to reconsider was a request for a new trial. The Court of Appeals concurred.
In reviewing the decision, the Oregon Supreme Court concluded that there were a maximum of three questions to address. Was the motion for reconsideration a motion for a new trial? If so, was the later notice of appeal premature? And if so, was the plaintiff required to file a new appeal? The court determined that the answer to the first question was no.
Prior decisions pointed to the conclusion “that a motion for reconsideration of a summary judgment amounts to a motion for a new trial,” but here the court concluded that “our prior cases erred,” and turned to the summary judgment rule for clarification. The court noted that “the rule contemplates that summary judgment and trial are separate and distinct events.” With this conclusion, the Oregon Supreme Court remanded the case to the Court of Appeals for further proceedings.
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