Contractual Waiver of Consequential Damages
January 21, 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
Suing the Lowest Bidder on Public Construction Projects
September 17, 2015 —
Craig Martin – Construction Contractor AdvisorThe California Court of Appeals has allowed the second lowest bidders on public construction projects to sue the lowest bidder where it appears that the lowest bidder was only the lowest because it paid its employees less than the established prevailing wage. This is a novel theory for recovery, but may provide for an opportunity to challenge improperly low bids.
Background
Between 2009 and 2012, American Asphalt outbid two asphalt companies on 23 public works projects, totaling nearly $15 million. The two asphalt companies sued American Asphalt alleging that they were the second lowest bidder all 23 construction projects and they would have been the lowest had American Asphalt paid its employees the required prevailing wage. Importantly, the municipality awarding the contracts was not sued by the second lowest bidders. Instead, the second lowest bidders alleged that American Asphalt intentionally interfered with a business expectancy and sought damages from American Asphalt, specifically the profit that they lost by not performing these contracts.
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Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
Because I Haven’t Mentioned Mediation Lately. . .
November 23, 2020 —
Christopher G. Hill - Construction Law MusingsAny regular reader of Construction Law Musings knows that I am both a great believer in mediation and a certified Virginia mediator. After the last few weeks in which I participated in mediation by Zoom, a Judicial Settlement Conference (read, court-ordered mediation with a retired judge), and will be participating in another mediation in person next week, it seems as if others believe in the process as well.
After all of this mediation activity, all of which related to construction project-related disputes, I am more convinced than ever that almost every construction case should at least be submitted for mediation. The list below gives my reasons for saying this:
- The parties are in control. In litigation or arbitration, the parties present their evidence to a third party or parties with no familiarity with the “boots on the ground” reality of the construction project at issue. This third party gives a cold review of what evidence court rules allow them to consider and gives a final ruling that one side “wins” and the other side “loses.” This decision has monetary consequences for the losing party, not the least of which is a large attorney fee bill after potentially several years of legal wrangling. With mediation, those closest to the project, the parties, can say what they want, present what they feel to be the best case, and work for a solution. The solution can be flexible and allow the two sides to reach a business decision that is at least better than a large monetary judgment against one of the parties that is only further enforceable in court.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
NEW DEFECT WARRANTY LAWS – Now Applicable to Condominiums and HOAs transitioning from Developer to Homeowner Control. Is Your Community Aware of its Rights Under the New Laws?
February 07, 2014 —
Nicholas D. Cowie – Maryland Condo Construction Defect Law BlogAll condominium associations and homeowners associations (“HOAs”) created in Maryland 0n or after October 1, 2010 are subject to new laws pertaining to statutory warranties for construction defects in workmanship and materials.
Most associations that have recently transitioned, or that are about to transition, from developer to homeowner control were created on after October 1, 2010. It is now time for these Associations to become familiar with the new laws to ensure they protect and preserve their warranty rights. Below is an Article I wrote regarding these new laws, which I helped create. See Blog Post: “Maryland Construction Defect Lawyers Enforcing Warranty Claims for Condominiums.”
Too often our firm is contacted by condominium associations who never knew what there warranty and other legal rights were until it was too late to seek developer repairs and reimbursement for construction defects. There is no reason for community associations to remain uniformed.
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Nicholas D. Cowie, Maryland Condo Construction Defect Law BlogMr. Cowie may be contacted at
ndc@cowiemott.com
Health Officials Concerned About Lead-Tainted Dust Created by Detroit Home Demolitions
August 20, 2018 —
Engineering News-RecordDETROIT (AP) — The nation's largest home-demolition program, which has torn down more than 14,000 vacant houses across Detroit , may have inadvertently created a new problem by spreading lead-contaminated dust through some of the city's many hollowed-out neighborhoods.
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Engineering News-RecordENR may be contacted at
ENR.com@bnpmedia.com
In Construction Your Contract May Not Always Preclude a Negligence Claim
March 30, 2016 —
Christopher G. Hill – Construction Law MusingsHere at Construction Law Musings I have discussed the interaction of the so called “economic loss rule,” construction contracts and tort claims on numerous occasions. The general rule is that where a duty to perform in a certain way arises from the contract, the Virginia courts will not allow a plaintiff to turn a contract claim into a tort claim such as fraud or negligence.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Pennsylvania Civil Engineers Give the State's Infrastructure a "C-" Grade
November 28, 2022 —
American Society of Civil EngineersPENNSYLVANIA. — The Pennsylvania Council of the American Society of Civil Engineers (ASCE) released the 2022 Report Card for Pennsylvania's Infrastructure today at three congruent news conferences across the state including Harrisburg, Lehigh Valley, and Pittsburgh, with 15 categories of infrastructure receiving an overall grade of a "C-". This is the same grade issued by the council in its 2018 report. A "C-" means Pennsylvania's infrastructure is in mediocre condition and requires attention. Pennsylvania's aviation and rail networks are helping to drive economic growth in the region and an improved roadway network is helping increase efficiency for the regional and national economies, but an aging infrastructure network and struggling water systems threaten the health, safety and welfare of the region. Civil engineers graded aviation (B-), bridges (D+), dams (C), drinking water (D), energy (C), hazardous waste (B-), levees (C), parks (C+), ports (C+), rail (C), roads (C-), solid waste (C+), stormwater (D), transit (D), and wastewater (D-).
"Considering Pennsylvania's aging infrastructure and its critical role in our state's economy, policy makers must continue to prioritize dedicated funding to update and improve all infrastructure assets," said Rep. Mike Carroll, D-118. "Failure to do so will seriously harm the quality of life for every citizen."
"This report shows that Pennsylvania's infrastructure has seen some noteworthy improvements and that our lawmakers are prioritizing the built environment, but out-of-sight, out-of-mind systems such as water and wastewater pipelines are lacking the necessary attention," said David DiGioia, chair, 2022 Report Card for Pennsylvania's Infrastructure. "With help from the Bipartisan Infrastructure Law, we could improve our communities for generations if we double down on investment and close our funding gaps across all sectors included in this report."
The Report Card was created as a public service to citizens and policymakers to inform them of the infrastructure needs in their state. Civil engineers used their expertise and school report card-style letter grades to condense complicated data into an easy-to-understand analysis of Pennsylvania's infrastructure network. ASCE State and Regional Infrastructure Report Cards are modeled after the national Infrastructure Report Card, which gave America's infrastructure an overall grade of 'C-' in 2021.
To view the report card and all five categories, visit https://infrastructurereportcard.org/state-item/Pennsylvania/.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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Insurance Law Client Alert: California Appeals Court Refuses to Apply Professional Services Exclusion to Products-Completed Operations Loss
March 19, 2014 —
Valerie A. Moore and Chris Kendrick - Haight Brown & Bonesteel LLPIn North Counties Engineering v. State Farm (No. A133713, filed 3/13/14), State Farm insured an engineering company under CGL insurance that had a professional services exclusion and included products-completed operations (PCO) coverage. The owner of the engineering company, NCE, contracted with a winery to construct a dam and associated works. Also on the project was the owner's son, who had his own construction company, NCD. There were multiple contracts, both oral and written, variously naming one company or the other. The evidence later showed that the father performed hands-on work for the project.
After completion, the winery was sued over sediment and erosion caused by the dam. State Farm denied coverage on the ground that the professional services exclusion applied, as well as a mistaken belief that the policy had no PCO coverage. State Farm then changed its position and agreed to defend, but only going forward. The insured sued State Farm over past defense fees, alleging breach of contract and bad faith. The case went to trial and after testimony detailing State Farm's claim handling, the trial judge granted a nonsuit, finding that the professional services exclusion barred all coverage:
"[I]f you look at the pleadings, the legal pleadings and the contracts, the NCE role is, as the engineering company, the support company, and that company was overseeing the [sic] NCD to make sure that whatever they did was done right.... NCE is the expert on the job, the professional providing professional services, design and construction, and also overseeing the work of NCD, the son’s business, which is doing more of the physical activity.... That takes professional expertise and I think all of what Mr. Akerstrom did was professional.... It was this professional work, and not 'something incidental to their professional involvement' that gave rise to the underlying actions. In this situation, it’s not a malpractice or E and O policy. It’s a business policy, which has good benefits, but is subject to the professional services exclusion."
Reprinted courtesy of
Valerie A. Moore and
Chris Kendrick of Haight Brown & Bonesteel LLP
Ms. Moore may be contacted at vmoore@hbblaw.com; Mr. Kendrick may be contacted at ckendrick@hbblaw.com
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