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A reminder why certainty in contracts is so important

by Dentons on

In the recent New South Wales Court of Appeal decision Port Macquarie-Hasting Council v Diveva, the Court considered the contractual interpretation of a renewal clause. The clause was phrased in general terms and did not...more

Appellate Court Notes

by Pullman & Comley, LLC on

Supreme Court Advance Release Opinions: SC19734 - Wall Systems, Inc. v. Pompa - Plaintiff - construction company - discovered one of its supervisors who was paid ~$200k/year was working for a competitor at the same...more

Supreme Court of California Holds That a Losing Bidder on a Public Works Contract Cannot Sue the Winning Bidder for Intentional...

by Pepper Hamilton LLP on

Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc., 2017 Cal. LEXIS 1024 (Cal. February 16, 2017) - This tort lawsuit relates to a dispute over the bidding process on several public works contracts in...more

A Common Interest Agreement May Not Be Worth the Paper It’s Written On

by Wilson Elser on

It is a very common practice for counsel to co-defendants or co-plaintiffs to enter into agreements that shield their communications. The agreements are expressions of intent that the communications will be protected by the...more

Kentucky Appellate Court Holds That a Contractor May Pursue Claim of Negligent Misrepresentation Against Architect Despite Lack of...

by Pepper Hamilton LLP on

D.W. Wilburn, Inc. v. K. Norman Berry Assocs., No. 2015-CA-001254-MR, 2016 Ky. App. Lexis 206 (Ky. Ct. App. Dec. 22, 2016) - This case arose out of a construction project in which the Oldham County Board of Education...more

Fraud and Performance Securities

by White & Case LLP on

Performance securities are an everyday feature of construction and engineering projects. It is increasingly common to see calls on performance securities challenged on the basis of "fraud". Two recent cases from the English...more

Defence & Indemnity - December 2016: V. SURETY AND BOND ISSUES

by Field Law on

Alberta Court of Appeal confirms an obligee/trustee under labour and material payment bond has no legal duty to disclose the existence of such a bond to potential bond claimants until specifically asked about its...more

The Government Knowledge Defense to the False Claims Act after Universal Health Services

by Butler Snow LLP on

As recited in seemingly every brief and opinion involving the statute, the False Claims Act traces its history to the Civil War and efforts to deter and punish fraud on the Lincoln administration. The lure of treble damages,...more

Canadian Contractual Interpretation Just Got More Difficult

by Bennett Jones LLP on

Supreme Court of Canada Revives Correctness Test for Interpreting Standard Form Contracts - There is a new exception to the new Canadian approach for reviewing the interpretation of contracts: a trial court’s...more

Sanctity of an arbitration award: When does a breach of natural justice tip the balance? - A case study of ASG V ASH [2016] SGHC...

by Dentons on

The plaintiff applied to set aside three arbitral awards. The first was awarded on the merits which was challenged on the basis that the arbitrator had totally failed to consider or understand the plaintiff’s evidence and...more

Colorado Supreme Court: Insurers Need Not Show Prejudice to Enforce No-Voluntary-Payments Provision of Insurance Policy

by Wilson Elser on

On April 25, 2016, the Colorado Supreme Court overturned a decision by the Colorado Court of Appeals and Colorado District Court in what is believed to be a seminal victory for insurers. In Travelers Prop. Cas. Co. of Am. v....more

Maryland Appellate Court Holds Economic Loss Doctrine Bars Contractor’s Tort Claims Against Government’s Design Professional on...

by Pepper Hamilton LLP on

Balfour Beatty Infrastructure, Inc. v. Rummel Klepper & Kahl, LLP, 226 Md. App. 420, 130 A.3d 1024, 2016 Md. App. LEXIS 3 ( Md. Ct. Spec. App. Jan. 28, 2016) The City of Baltimore retained a design professional, Rummel...more

Proceed Wisely, Ninja Contractor, Because Suing Your DOT May Have Limitations

by Burr & Forman on

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

Design Errors Exception to the Economic Loss Doctrine

A recent Pennsylvania case, Gongloff Contracting, LLC v. L. Robert Kimball & Assocs., Architects and Engineers, Inc., sheds light on circumstances in which design errors can lead to damages in tort as courts recognize...more

Affirmed: New York’s Application of the In Pari Delicto Doctrine Bars Faithless Servant Claim and Bankruptcy Insider Exception

by Cole Schotz on

A recent decision of the United States District Court for the Southern District of New York (the “District Court”), affirming a decision of the United States Bankruptcy Court for the Southern District of New York (the...more

Federal Court in Indiana Permits City to Sue Design Subconsultant Despite Lack Of Privity

by Pepper Hamilton LLP on

City of Whiting, Indiana v. Whitney, Bailey, Cox, & Magnani, LLC, 2015 U.S. Dist. LEXIS 150229 (N.D. Ind. Nov. 5, 2015) - The City of Whiting, Indiana (the “City”) contracted with American Structurepoint, Inc....more

Contractor’s Lawsuit Against Architect for Tortious Interference Allowed to Proceed

by PretiFlaherty on

A U.S. District Court Judge for the District of Massachusetts has allowed a lawsuit to proceed brought by a contractor against an architect, alleging the architect falsely certified grounds for termination to the project...more

Arise and Exclude: Artful Pleading Fails to Circumvent Contractual Liability Exclusion

by Carlton Fields on

It’s not uncommon for plaintiffs to couch their pleadings in terms that attempt to avoid exclusions in defendants’ liability coverage. The plaintiffs in Bond Safeguard Ins. Co. v. National Union Fire Ins. Co. of Pittsburgh,...more

U.S. District Court for Northern District of California Holds Engineer May Be Liable to Contractor for Breach of Professional Duty...

by Pepper Hamilton LLP on

Apex Directional Drilling, LLC v. SHN Consulting Eng’rs & Geologists, Inc., 2015 U.S. Dist. LEXIS 105537 (N.D. Cal. Aug. 11, 2015) - The United States District Court for the Northern District of California held that an...more

Piercing The Corporate Veil Takes More Than Just Fraud By The Individual

Many of us have endured the nightmare of a disastrous home renovation or at least enjoyed Tom Hanks in The Money Pit (How long? Two weeks, of course). Well imagine spending half a million dollars, not for a new and improved...more

Bar Against Forum Selection Clauses in Construction Contracts Extended to Design Professionals

It’s a tactic as old as war itself. You can often gain a strategic advantage by selecting the location of battle. The same is true in litigation....more

Negligent Misrepresentation Standard Shifts in Contractor’s Favor with Pennsylvania Appellate Ruling

by Saul Ewing LLP on

Contractors and subcontractors who are aggrieved by erroneous information on construction documents may have an easier time proving an architect or other design professional made a negligent misrepresentation that harmed them...more

Attorneys Fees Under California’s Prompt Payment Statutes. Contractor’s “Win” Fails the Sniff Test

This past month, the California Court of Appeals for the Third District, in  James L. Harris Painting & Decorating, Inc. v. West Bay Builders, Inc., Case No. C072169 (August 27, 2015), handed down a decision in a construction...more

Federal Circuit Court Affirms that Federal Claims Court Lacks Jurisdiction Over Claims By Subcontractor

by Pepper Hamilton LLP on

Montano Elec. Contractor v. United States, 2015 U.S. App. LEXIS 5928 (Fed. Cir. Apr. 13, 2015) - The Army Corps of Engineers (“the Corps”) hired a general contractor, who subcontracted certain electrical work to Montano...more

Second-Lowest Bidder for Public Contracts May Sue Lowest Bidder Who Paid Less Than Prevailing Wages

Public agencies have little, if any, discretion when awarding public contracts because they are required to award the contract to the lowest bidder, subject to certain minimum qualifications. These limitations are designed...more

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