In negotiating construction contracts, the parties may ignore or give little attention to the project’s insurance requirements. Insurance provisions are oftentimes left untouched on the standard industry forms. One typically misunderstood type of project insurance is builders’ risk, also sometimes referred to as an “all risk” policy, or BRI. Builders’ risk insurance is a property … Continue Reading
Construction projects are no stranger to delays and the inevitable resulting disputes. To allocate such risks, parties frequently include no damage for delay causes in their contracts. These provisions commonly provide that in the event of a delay the contractor’s remedy is limited to an extension of time. Given that there are often multiple causes … Continue Reading
My last article examined strategies for construction managers facing an owner bankruptcy. Now, looking through the lens of the owner, let’s examine best practices when it is the contractor who has filed for bankruptcy. Throughout New England and the United States the construction industry continues to thrive with several new projects underway and on the … Continue Reading
On most construction projects, a project owner will require the contractor to certify that it has fully paid each of its subcontractors as a condition to the owner making payment to the contractor. The purpose of these certifications is to ensure timely payment to all subcontractors and to protect the owner from claims or liens … Continue Reading
A few weeks back my colleague, mentor and friend Greg Faulkner wrote a post here that looked back on his 25 years as a construction lawyer. It was a very thoughtful piece and frankly I think it was one of the best legal blog posts I have read. You can access it here: https://www.constructionlawzone.com/2016/07/twenty-five-years-in-the-construction-industry-weve-come-a-long-way-baby-or-have-we/ As … Continue Reading
In November 1989, I was a second year law student interviewing with firms in Connecticut and New York for a summer associate position. During the Thanksgiving Holiday, I scheduled an interview with a small firm in New Haven. The firm’s primary area of practice was construction litigation. I had no idea what “construction litigation” entailed, … Continue Reading
After an insurer pays for a covered loss by an owner under a property policy the insurer generally has the right, whether under the common law, statute or the policy itself, to seek recovery of the payment from the responsible party. This is known as the right of subrogation, or if based on the common-law … Continue Reading
In RV V Lockworks, LLC v. Five Yale & Towne, LLC, 2016 Conn. Super. LEXIS 563 (Conn. Super. Ct. Mar. 16, 2016) an arbitrator awarded punitive damages to the purchaser of a newly-constructed 300-unit apartment complex when it was discovered that the seller had intentionally concealed knowledge of the fact that all 300 balconies attached … Continue Reading
In the hustle and bustle of completing a construction project it can be easy to overlook the importance of the contract. However, when a dispute arises the contract generally dictates the outcome of that dispute. A recent unpublished Massachusetts Appeals Court decision serves as a reminder of the importance of the contract. In ACME Abatement … Continue Reading
Industry leaders agree that the economy has turned the corner and private construction projects are on the uptick. Banks have eased lending requirements and there is more private equity money on the streets. Inexperienced developers are entering the arena and experienced developers are less guarded and taking on more risk. On the flip side, small … Continue Reading
“Use the right tool for the job” is also a good bit of advice in litigation, as underscored by a recent decision out of the Connecticut Appellate Court. The case is Fisk v. Redding, AC 37537 (April 19, 2016). At the center of the case was a block retaining wall constructed as part of a … Continue Reading
Recently I came across an article that led me to a case that dealt with the seemingly innocuous and often perfunctory forum selection clause. In the case (Liddell Bros. v. Impact Recovery Sys., 2016 U.S. Dist. LEXIS 36258 (D. Mass. Mar. 21, 2016)) a highway Massachusetts contractor’s lawsuit (arising out of a Massachusetts project) against … Continue Reading
A recently proposed bill to reduce the retainage amount for certain public work contracts to five percent and to allow a claimant to recover reasonable attorney’s fees and costs from a payment bond surety that fails to timely respond to a claim was unanimously approved by the General Assembly’s General Law Committee on March 11, … Continue Reading
I recently attended an ABA conference in Newark, New Jersey in which the theme was “Finding Common Ground in Drafting and Negotiating Design Clauses” in construction contracts. One of the speakers presented a segment regarding differing site conditions in which he articulated the major risks that differing site conditions present to both owners and contractors … Continue Reading
As the recession recedes, courts are busy sifting through the remnants of construction projects that were impacted by the hard times we all faced. Shady deals and disreputable conduct often come to light in times like this, and can present opportunities for judges to hold bad actors personally accountable for unscrupulous behavior, under the right … Continue Reading
This is the third post in the four-part series “Limitations of Liability—The Elephant in the Room.” Owners often attempt to limit their liability to contractors through what is commonly known in the construction industry as a “no damages for delays” clause. Much like waivers of consequential damages, a “no damages for delays” clause, which limits … Continue Reading
In keeping with a growing trend, in 2004, Massachusetts departed from the exclusive use of the traditional “design-bid-build” project delivery method for public projects and permitted public agencies to employ the less traditional design-build and construction manager-at-risk delivery methods on certain public projects. The increased use of such project delivery methods raises the question: who … Continue Reading
This is the second post in the four-part series “Limitations of liability—The Elephant in the Room.” Waivers of consequential damages have become the industry standard, and these clauses are found in most industry templates. Let’s pick on the AIA form, since it’s still the most commonly used on commercial construction projects. The AIA A201 General Conditions, … Continue Reading
This is the first post in the four-part series “Limitations of liability—The Elephant in the Room.” One or more of the following scenarios takes place in my office virtually every day: Scenario One: Owner client sends me an industry form construction contract and asks me to take a look, after the project has been bid but prior … Continue Reading
1. “No damages for delay” clauses: “No damages for delay” clauses allocate the risks of project delays and disruptions between the owner and contractor. Oftentimes, these clauses preclude a contractor from recovering increased costs resulting from extended project duration, including claims for increased overhead and supervision costs, loss of productivity, and acceleration, even when such … Continue Reading
Those of us who work in the design and construction industry have a good idea of what drives a successful project. In short, we see a successful project as one that finishes on time and within the budget. Common sense dictates that the chances of achieving those results increase with team integration and cohesion. If … Continue Reading
This is the first in a 2-part series on the use of certificates of insurance as evidence of liability coverage for contractors on construction projects. The second part of the series will discuss the potential impact of recent Connecticut legislation governing certificates of insurance. It is common practice on construction projects for owners, general contractors … Continue Reading
The Common Interest Privilege May Offer More Protection Than You Thought. Consider for a moment a situation when an Owner and a General Contractor want to exchange confidential communications relating to a potential legal matter. When the Owner and Contractor are not both parties in a suit, what protections might they have? One possible consideration … Continue Reading
In a recent decision, Elec. Contractors, Inc. v. Fid. & Deposit Co. of Maryland, No. 3:13-CV-00514 MPS, 2015 WL 1444481 (D. Conn. Mar. 30, 2015), the United States District Court for the District of Connecticut dismissed on summary judgment a subcontractor’s claims for delay damages against the general contractor on a construction project (“Project”) for … Continue Reading
