The construction industry often relies on contract forms drafted by the American Institute of Architects (AIA). These AIA forms include agreements between owners, designers, consultants, contractors, subcontractors, and construction managers. Some prefer to use the forms in the stock form, but others prefer to modify the language to their benefit. These modifications can be made
Construction contracts and claims
For Whom Additional Insured Coverage Applies in New York
Simply including a requirement in a contract to add certain parties as additional insureds under a commercial general liability insurance (CGL) policy may not be enough to ensure such coverage is provided in New York. In New York City Hous. Auth. v. Harleysville Worcester Ins. Co., 226 A.D.3d 804 (2024), the New York Supreme…
New Mexico Holds One-Sided Dispute Resolution Provisions Are Unenforceable
Dispute resolution provisions that grant one party the unilateral right to choose either litigation or arbitration to resolve disputes are common in the construction industry. The main difference between the two forums is that courts are more likely to strictly enforce contract terms as written as well as the applicable law, while arbitrators make decisions…
Lawsuit Gives Teeth to Massachusetts Pay Law
Below is an excerpt of an article published in ENR (Engineering News-Record) on August 7, 2024.
“The Massachusetts Legislature passed the state’s Prompt Pay Act 14 years ago to improve the downstream flow of money on most large-scale private construction projects. While the act established detailed protocols for administering applications for payment and other important…
Attorneys’ Fees and the American Arbitration Association Rule
A common question from clients, when a dispute arises on a construction project, is whether they can recover their attorney’s fees from the other side if they pursue a case and win. More often than not, such fees are not recoverable. As a general rule (commonly known as the “American Rule”), each party to a…
Second Circuit Affirms Win for General Contractor on No Damages for Delay Provision
In NASDI, LLC v. Skanska Koch Inc. Kiewit Infrastructure Co. (JV), 2024 WL 1270188 (2d Cir. Mar. 26, 2024), the U.S. Court of Appeals for the Second Circuit affirmed the District Court’s grant of summary judgment dismissing a subcontractor’s delay claim against a general contractor on a public project in New York state. The…
Robinson+Cole’s Amicus Brief Adopted and Cited by Massachusetts’s High Court
Earlier this year, the Associated Subcontractors of Massachusetts hired Robinson+Cole attorney Joseph Barra to submit an amicus brief to the Massachusetts Supreme Judicial Court for consideration in the appeal pending before it in Business Interiors Floor Covering Business Trust v. Graycor Construction Co., Inc. In its June 17, 2024 decision in that case, the Court…
NY Prompt Pay Act for Private Construction Caps Retainage at Five Percent
New York’s Prompt Pay Act, which sets the standards that govern private commercial construction contracts exceeding $150,000, was amended effective November 17, 2023. The Amendment known as Senate Bill 3539 provides two significant changes which advance the timing of payments from the owner to the contractor. First, Section 756-a now permits a contractor to submit…
Rhode Island Affirms The Principle That Sureties Must be Provided Notice of Default Before They Can be Held Liable for Principal’s Default
Most bond forms in use today, including the standard form AIA A312-2010, contain express condition precedents that trigger a surety’s obligations under the bond. Under a performance bond, the bond obligee is required to provide formal notice to the surety that the principal has materially defaulted and that the surety must begin to perform under…
New York Restrictions on Flow Through Provision in Subcontracts
Most subcontracts include a flow through provision (also called flow down and incorporation clauses) stating that the subcontractor and contractor are bound by the same obligations as set forth in the prime contract between the contractor and owner. Many jurisdictions interpret such provisions narrowly, as illustrated in a recent case out of New York. In…