Sometimes you “do” bad things. Sometimes you “look like” you do bad things. Just look at the difference between Bad-boy Jack and my youngest daughter, who just “looks like” she’s up to no good. In the world of construction...more
I have seven children, and two of them have flown the coop. I also have two grandchildren who are ripe for spoiling. You see, grandchildren are a different type of kid, which means I get to treat them different than the...more
In WDF, Inc. v. City of New York, No. 652478 (N.Y. Sup.) (Mar. 12, 2021), the contractor filed suit to recover damages from the City on numerous combined waste water treatment projects. The contractor claimed that the City...more
3/19/2021
/ Breach of Contract ,
Construction Contracts ,
Construction Disputes ,
Construction Litigation ,
Construction Project ,
Contract Terms ,
Damages ,
Delay Claims ,
Discovery ,
Document Productions ,
Document Retention Policies ,
Public Projects
What’s a goocher? If you saw the movie, Stand By Me, then you know exactly what I mean. And there are times when parties to a construction contract face a goocher. ...more
3/17/2021
/ Breach of Contract ,
Construction Contracts ,
Construction Disputes ,
Construction Litigation ,
Construction Project ,
Contract Disputes ,
Contract Terms ,
Payment Terms ,
Performance Standards ,
Real Estate Development ,
SD Supreme Court ,
Statutory Interpretation ,
Time Restrictions ,
Timely Project Completion ,
Unenforceable Contract Terms
We live in a world of e-mails, IMs, texts, Snapchats, TikToks, Instagrams and the occasional fax. Although information is transmitted instantaneously in today’s environment, proof of receipt of that information (often called...more
Long before I was an attorney, I heard this tale that if you endorsed a check that had the words “PAID IN FULL” written on the check, then you were accepting the check as full payment of whatever was owed. But I have never...more
It happens all the time! The owner-contractor agreement contains a “no damages for delay” clause; a clause requiring that all changes be in writing before work is performed; and a clause requiring partial lien waivers and...more
9/25/2020
/ Breach of Contract ,
Construction Contracts ,
Construction Disputes ,
Construction Litigation ,
Construction Project ,
Contract Terms ,
Delay Claims ,
Failure To Pay ,
No Damage For Delay ,
Real Estate Development ,
Waivers
If you are left in the dark about something, you don’t have the information you should have to make an informed decision. Delay claims on a construction can be confusing, especially when you think about the delay to the work...more
9/24/2020
/ Business Disruption ,
Construction Contracts ,
Construction Industry ,
Construction Litigation ,
Construction Project ,
Contract Disputes ,
Contract Terms ,
Damages ,
Delay Claims ,
Public Projects ,
Sovereign Immunity
In Wickersham Construction and Engineering, Inc. v. The Town of Sudlersville, Maryland (Sept. 22, 2020), the United States District Court for the District of Maryland held that a construction contractor had waived certain...more
The last six months have been a whirlwind, especially for this single dad of six school children (who are no longer in school) while I work from home/office/car/jobsite/court....more
It goes without saying that in the world of construction contracts … words matter! There is language in the Goes decision that a cost-plus contract imposes upon the contractor an implied duty to incur reasonable and proper...more
3/3/2020
/ American Institute of Architects ,
Best Practices ,
Change Orders ,
Construction Contracts ,
Construction Litigation ,
Construction Project ,
Contract Disputes ,
Contract Termination ,
Contract Terms ,
Failure To Pay ,
Fiduciary Duty ,
Fixed Price Contracts ,
Lump Sum Payments ,
Payment Terms ,
Project Management ,
Prompt Payment ,
Real Estate Development
It almost goes without saying that if you have to pursue or defend a delay claim, you are going to need some evidence (preferably by an expert) to establish or to challenge entitlement to the damages sought. And we all know...more
It kind of goes without saying, but you should probably bring your expert to a dispute if there is going to be a battle of the experts. One contractor recently learned this lesson to the tune of $65,000....more
12/9/2019
/ Appeals ,
Construction Contracts ,
Construction Disputes ,
Construction Litigation ,
Construction Project ,
Contract Terms ,
Damages ,
Delays ,
Expert Witness ,
Federal Contractors ,
Litigation Strategies ,
Renovations
I just blogged about asking for what you want and the importance of complying with notice provisions in pursuing a construction claim. A court in Oklahoma just reminded me that not all claims require notice. Here’s what I...more
Having litigated construction disputes for almost 20 years, the issue of entitlement often turns on whether the contractor properly submitted its claims in accordance with the terms of the parties’ contract. Whether the...more
A court recently held that the type of contract delivery method did not change the applicability of the differing site conditions clause.
Appeal of John C. Grimberg Co., Inc., ASBCA No. 58791 (Oct. 25, 2018) involved the...more
A few years ago, I did a post on whether a digital signature in a construction contract was valid. Given the regularity by which parties now communicate by email, it is certainly a subject worth revisiting....more
11/19/2019
/ Claim Procedures ,
Construction Contracts ,
Construction Disputes ,
Construction Litigation ,
Construction Project ,
Contract Claims ,
Discovery ,
E-Signatures ,
Electronic Communications ,
Litigation Strategies ,
Miller Act ,
Notice Requirements
There is objection evidence. There is subjective evidence. And sometimes, it is a combination of both A case cannot go much worse when a court’s opinion starts with the following: “This case concerns a contract in which a...more
11/15/2019
/ Construction Contracts ,
Construction Defects ,
Construction Litigation ,
Construction Project ,
Contract Disputes ,
Contract Termination ,
Contract Terms ,
Department of Defense (DOD) ,
Federal Contractors ,
Termination for Default ,
Timely Project Completion ,
US Air Force
The rule relating to the effect of a contractor who exceeds its licensing limit is now clear based upon the decision in Clayton Pickens v. John R. Underwood (Tenn. Ct. App. June 12, 2018). In that case, the dispute was...more
We live in a world of e-mails, IMs, texts, Snapchats, Instagrams and the occasional fax. Although information is transmitted instantaneously in today’s environment, proof of receipt of that information (often called...more
Long before I was an attorney, I heard this tale that if you endorsed a check that had the words “PAID IN FULL” written on the check, then you were accepting the check as full payment of what was owed. But I had never really...more
I read in my Twitter feed this morning about a recent case where the Missouri Court of Appeals formally adopted the Spearin Doctrine.
I immediately wondered if I could explain the Spearin Doctrine in less than 140...more
No self-respecting Ninja goes into battle without a plan, right? You need to know your environment, your opponent and the rules of the battle. For you Ninja contractors, it’s a good thing to fully understand your potential...more
In the construction world, many of us lawyers talk about what is known as a material breach in order to support a termination of the contract. In other words, the event that supports the claim for default or termination or...more