Civil Remedies Construction

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Employer May Terminate Pre-Hire Agreement with Union, Sixth Circuit Rules

On April 21, 2016, resolving a situation not previously decided by the Sixth Circuit Court of Appeals, the court held that a construction company that was a party to a pre-hire collective bargaining agreement lawfully...more

Sixth Circuit’s Rejection of Taint Damages Theory in False Claims Act Case Reinforces that Value-Received May Substantially Offset...

In False Claims Act (“FCA”) cases, the Department of Justice and, where the government has declined to intervene, qui tam plaintiffs, routinely pursue aggressive damages theories. In its recent decision in U.S. ex rel. Wall...more

Missouri Court of Appeals Finds Single Tenant Finish Mechanics Liens Encumber Entire Mall

On April 12, 2016, the Missouri Court of Appeals for the Eastern District handed down an opinion Crafton Contracting Company, et al. v. Swenson Construction, Inc., that is of interest to owner/landlords, their lenders,...more

Federal Court in Georgia Holds Specific Contractual Intent to Benefit Required for Tenant to Be Third-Party Beneficiary of...

J.C. Penney Props. v. Hiram LL, LLC, 2016 U.S. Dist. LEXIS 8027 (N.D. Ga. Jan. 25, 2016) - In January 2008, Hiram LL, LLC (“Hiram”) leased property to J.C. Penney Properties, Inc. (“J.C. Penney”) for the construction and...more

Contractual Liquidated Damages Update 3.0

Several editions ago, we published an article relating to the Boone Coleman v. Village of Piketon case, which struck down a $278,000 liquidated damages award for construction delays because the amount was disproportionately...more

One Word Makes All The Difference – The Distinction Between “Pay If Paid” and “Pay When Paid” Clauses

Payment clauses in California construction contracts are often complex and multi-layered. This is especially true in contracts between general contractors and their subcontractors. The general does not want to pay the subs...more

Agreements to Arbitrate Are Simple, Right?

The construction industry has been a leader in the use of arbitration to resolve disputes. In the past 30 years, it is fair to say that arbitration has outpaced litigation as the dominant method of dispute resolution. The...more

Federal False Claims Act (FCA) Actual Damages for Non-Compliant Goods or Services That Cannot Be Remedied

The Federal False Claims Act, 31 U.S.C. § 3279 ("FCA"), penalizes contractors for, among other false claims, presenting a claim for payment to the Federal Government for goods or services that were not performed. A...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

Defence & Indemnity - February 2016: V. Surety and Bond Issues: The relationship between trust and lien claims under Provincial...

Stuart Olson Dominion Construction Ltd. v. Structal Heavy Steel, 2015 SCC 43, per Rothstein, J. - I. FACTS AND ISSUES - Stuart Olson Dominion Construction Ltd. (“Dominion”) was the general contractor of a football...more

CONSTRUCTION & ENGINEERING BRIEFING: Payment provisions in construction contracts: relief for employers? - Harding v Paice [2015]

In the case of Harding trading as MJ Harding Contractors v Paice and another [2015] EWCA Civ 1231(18 November 2015) the Court of Appeal (CoA) agreed that despite failing to issue a valid pay less notice and being ordered by...more

Litigation Update - March 8, 2016

On 12 February 2016, the Supreme Court held in its decision in Tzaneros Investments Pty Limited v Walker Group Constructions Pty Limited [2016] NSWSC 50 (Tzaneros v WGC) that the first respondent, Walker Group Constructions...more

California Court of Appeals Says, “We Like Eich(leay)!”

Time is money. And nowhere can than be best observed than on a construction project. Project delays can mean lost profits for owners, liquidated damages for general contractors, and increased material, labor, field...more

Services that are Worth Less Aren’t Necessarily Worthless

The Sixth Circuit brought a refreshing sense of reality to the government’s sometimes unreal calculation of damages in False Claims Act (FCA) cases. In this case the government had sought, and won at the trial level, an award...more

Sixth Circuit Strikes a Blow to the Government's False Claims Act Damages Theory

The Sixth Circuit’s recent decision in United States ex rel. Wall v. Circle C. Construction, No. 14-6150, 2016 WL 423750 (6th Cir. Feb. 4, 2016), strikes a blow against the government’s False Claims Act (FCA) theory that, in...more

Eight Years Later, Suspended Contract Bites Contractor

How long can work under a contract be suspended before the contractor’s obligations will be deemed terminated? A lot longer than you might expect....more

The Supreme Court has reformulated the rule against penalties

Cavendish Square Holdings BV v. Makdessi and ParkingEye Ltd v. Beavis - In November 2015, in a widely anticipated judgment, the Supreme Court reviewed the operation of the rule on penalties for the first time in a...more

Do Treble Damages Mean Treble Rescission?

North Carolina law awards treble damages for violations of N.C. Gen. Stat. § 75-1.1 “if damages are assessed.” A recent Fourth Circuit decision asks this question: If a plaintiff seeks rescission, and if the defendant’s...more

Intervention by Individual Homeowners Deemed Timely

Ziani Homeowners Association v. Brookfield Ziani LLC, et al. - Court Of Appeal, Fourth Appellate District, Division Three - (December 22, 2015) - The Court of Appeal considered the issue of timeliness of a...more

Guarantors’ “Lost Profits” Completely Offset Lender’s Deficiency Claim

Believe it or not, lenders can breach loan agreements too…and when they do, there can be significant consequences. In Great Western Bank v. LJC Dev., LLC, 726 Ariz. Adv. Rep. 21 (Ariz. Ct. App. Nov. 10, 2015), the Court of...more

Is An Offset Allowed For Amounts Unrelated To The Claim Asserted?

The plaintiffs in Brace Industrial Contracting v. Peterson Enterprises (Del. Ch. Dec. 10, 2015) moved for partial summary judgment on the issue of whether the defendants could “self-help themselves to $3.457 million of the...more

Court Of Chancery Explains Arbitration Timelines

This decision explains the timelines for seeking to vacate an arbitration award. It illustrates that an arbitration proceeding has its own rules that the parties better understand or lose their rights....more

[Event] Construction Liens: Understand the Complexities; Protect Your Interest - Jan. 13th, Grand Rapids, MI

Please join us to learn about the Michigan Construction Lien Act and other important laws affecting the construction industry. Learn how to use the lien act to secure payment for your work and avoid common...more

South Carolina Court Finds Insurer Improperly Denied Coverage Under State Operations Exclusion

In E. Bridge Lofts Prop. Owners Ass’n v. Crum & Foster Specialty Ins. Co., 2015 U.S. Dist. LEXIS 156947, the United States District Court for the District of South Carolina addressed an insurer’s denial of coverage for an...more

Construction Group News: Workers Cannot Recover Lost Wages from Contractor Responsible for Explosion that Shut Down Project

The Connecticut Supreme Court has held that construction workers whose jobs are affected by the shutdown of a construction project due to an accident cannot bring suit for lost wages against the companies whose negligence...more

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