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Construction Business Torts

Read need-to-know updates, commentary, and analysis on Construction issues written by leading professionals.

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

When completion is not quite complete - Thabula Trade & Invest 3 (Pty) Ltd v. Ruwacon (Pty) Ltd and Others

by Dentons on

The High Court of South Africa considered a dispute on the interpretation of retention clauses in two subcontracts. The court provided much needed guidance on the approach to be taken where subcontracts do not contain time...more

Absolute Pollution Exclusion—Not So Absolute

by Perkins Coie on

Slapping insurers with breach of contract and bad faith, Washington state’s highest court recently found that a general liability policy’s so-called “absolute” pollution exclusion may not be so absolute. In Xia et al. v....more

New guidance on the date of 'practical completion' and its broader implications

by Dentons on

In our earlier update concerning the Supreme Court of NSW decision in Fairfield City Council v Abergeldie Contractors Pty Ltd(Abergeldie)we set out the reasoning of Justice Ball in relation to determining whether ‘practical...more

Arbitration at your option: So long as you have agreed to it - A case study of Wilson Taylor Asia Pacific Pte Ltd v Dyna-Jet Pte...

by Dentons on

The recent Singapore Court of Appeal judgment in Wilson Taylor Asia Pacific Pte Ltd v Dyna-Jet Pte Ltd discusses the legal implications of an arbitration agreement of an asymmetrical nature. Such an arbitration agreement is...more

Fifth Circuit Holds That Spearin-like Provision of Louisiana Civil Code Bars Negligent Failure to Warn Claim

by Pepper Hamilton LLP on

LaShip, LLC v. Hayward Baker, Inc., 2017 U.S. App. LEXIS 3694 (5th Cir. Mar. 1, 2017) - Beginning in 2007, LaShip, LLC (“LaShip”) undertook the construction of a large shipbuilding facility in Houma, Louisiana (the...more

These Class Action Lawyers Made Their Fees The Old-Fashioned Way. They Earned Them!

by Brooks Pierce on

It's not very often that I see a fee application in a settled class action in the Business Court that doesn't strike me as requesting approval of an overpayment for a less than successful result. Those are most often in the...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

Builders' lien trusts in a bankruptcy - Iona Contractors Ltd v Guarantee Company of North America, 2015 ABCA 240

by Dentons on

In 2009, the Calgary Airport Authority (CAA) entered into a construction agreement with Iona Contractors Ltd. for Iona to improve CAA’s north airfield. By October 2010, the work was substantially complete; however CAA...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

Eight Ways Your Wine Business Can Avoid, Survive Unfair-Competition Actions

California counties in winemaking regions are increasingly using the state’s Unfair Competition Act (Business & Professions Code Section 17200 and 17500) to bring government enforcement actions against local wine industry...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

Contractor’s Failure to “Strictly Comply” With Notice Provision Precludes Contract Damages Award

In the New York case of Schindler Elevator Corporation v. Tully Construction Co., Inc., 139 A.D.3d 930 (2d Dep’t 2016), the plaintiff sought recovery of additional expenses and costs it allegedly incurred as a result of...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

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

by K&L Gates LLP on

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

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

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