General Business Civil Procedure Construction

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Real News - Spring 2016

Earlier this year, David Cameron fired the starting gun on whether Britain should continue its membership of the EU. As we all know, the potential effect of a Brexit is a topic which has divided the opinions not only of our...more

Ohio Supreme Court Holds Reasonableness of Liquidated Damage Provision to Be Determined Based Upon the Parties’ Knowledge at Time...

Boone Coleman Constr., Inc. v. Vill. of Piketon, 2016-Ohio-628, 2016 Ohio LEXIS 441 (Ohio Feb. 24, 2016) - A general contractor entered into a construction contract with a public agency for a road construction project...more

Do No-Damage-for-Delay Clauses Bar Acceleration Claims?

Time is money in construction, and project delays can cause contractors to incur substantial additional costs. To avoid responsibility for paying these costs, project owners often include a no-damage-for-delay (NDFD) clause...more

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

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

Pennsylvania Commonwealth Court Holds Enforceable School District’s Oral Promise to Pay Subcontractor for Returning to Job after...

Zacherl, Inc. v. Flaherty Mechanical Contractors, LLC, 131 A.3d 1030, 2016 Pa. Commw. LEXIS 22 (Jan. 6, 2016) - The West Allegheny School Board (the “School Board”) voted to approve the School District’s (the...more

Obligation to Perform Work and Incur Costs Under Construction Contract is a Section 752 Liability

In a recently issued Private Letter Ruling (PLR 201608001), the IRS determined that a taxpayer-partnership’s obligation to perform work and incur costs under a long-term construction contract constituted a partnership...more

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

Montana Supreme Court Revisits General Liability Coverage for Construction Defect Claims

In its recent decision in Emplrs Mut. Cas. Co. v. Fisher Builders, Inc., 2016 MT 91 (Mont. Apr. 16, 2016), the Supreme Court of Montana had occasion to consider what constitutes an “occurrence” in the context of a defective...more

Exceptions to the temporary finality of interim payment certificates and the architect’s role in enforcement proceedings - A case...

The issue before the Court of Appeal was whether an employer could establish any exceptions in clause 31(13) of the Singapore Institute of Architects Articles and Conditions of Building Contract (“SIA Conditions”) to...more

Standing tall – The “Independent Contractor” defence for builders and construction professionals

The High Court has recently ruled that main contractors and architects may rely on the independent contractor defence to defeat claims in negligence brought by management corporations. The court’s inquiry focused on whether...more

Yet Another Trap for the Unwary : Forum Selection – Don’t Get Dragged Across the Country

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...more

A Double Standard in Construction Defect Coverage Cases?

The recent decision of Allied Property & Casualty Insurance Co. v. Metro North Condominium Associates highlights why only a minority of jurisdictions still hold to the fiction that construction defects cannot give rise to an...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

California Appeals Court Rejects Insurer’s Reliance on Contractual Escape Clause

According to a closely watched decision, an “other insurance” clause in a comprehensive general liability policy will not, as a matter of public policy, permit the insurer to avoid having to pay a share of the insured’s...more

Appellate Court Notes

Supreme Court Advance Release Opinions: SC19408 - NPC Offices, LLC v. Kowaleski - In this case, the Supreme Court reversed the Appellate Court. The Appellate Court had agreed with the Trial Court that a driveway...more

Arbitration vs. Litigation: The Great Debate

Many of the “form” commercial construction contracts (e.g., AIA forms) contain “dispute resolution” clauses proposing binding arbitration as opposed to courtroom litigation. Most U.S. courts, faced with the number of cases...more

Can Active Interference by Owner Invalidate A No Damages for Delay Clause? Sometimes.

In C and H Electric, Inc. v. Town of Bethel, 312 Conn. 843 (2014), the Connecticut Supreme Court held that a Contractor’s claims against a Town for delay damages could not overcome the “no damages for delay” clause because...more

California Court Rejects Primary Carrier’s Excess Other Insurance Position

In its recent decision in Certain Underwriters at Lloyds, London v. Arch Specialty Ins. Co., 2016 Cal. App. LEXIS 275 (Cal. App. Apr. 11, 2016), the Court of Appeal of California for the Third Appellate District had occasion...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

Kentucky Court of Appeals Denies CGL Coverage For Damage To Property Other Than Insured’s Work

In Acuity v. Martin/Elias Props., LLC, 2016 Ky. App. Unpub. LEXIS 237 (Ky. Ct. App. Mar. 25, 2016), the Court of Appeals of Kentucky held that commercial general liability insurer Acuity did not owe coverage for a claim that...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

Williams Mullen Construction Industry Newsletter - Spring 2016

2016 begins with the issuance of this Construction Industry Newsletter, our fifth. In this issue, we have articles on vapor intrusion, liability for project design, enforcement of mechanic’s lien and bond waiver clauses, and...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

OCIP Liability Insurer Required to Indemnify Florida Contractor for $23M in Property Damage Arising Out of Defective Subcontractor...

Pavarini Construction Co. v. Ace American Insurance Co., 2015 U.S. Dist. LEXIS 151247 (S.D. Fla. Oct. 29, 2015) - This action arose out of a construction project to build a 63-story luxury condominium tower located in...more

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