Construction Civil Procedure

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Denbury v. Texas Rice "Texas Rice II": The Texas Supreme Court Affirms Common Carrier Status

On Friday, January 6, 2017, the Texas Supreme Court issued its long-awaited decision in Denbury Green Pipeline-Texas v. Texas Rice Land Partners (“Texas Rice II”), reversing the 9th Court of Appeals and reinstating the trial...more

New York Case Reminds Us That Some Courts Take Notice Provisions Very Seriously

A New York appellate court issued a decision in 2016 that serves as an important reminder to all tiers of the construction industry: courts take the notice provisions in your construction contracts very seriously. In the...more

Coverage to Rebuild a Foundation to Comply with Changed Building Codes Following a Fire are Subject to Code-Upgrade Endorsement’s...

Does the efficient proximate cause rule serve to afford coverage for the additional costs to rebuild the foundation of a home in compliance with changed building code requirements beyond the sublimit of liability of an...more

Owner’s Indemnity Claim for Wrongful Death Barred by Contractor’s Statute of Repose

A United States district court in Alabama recently dismissed an owner’s claim for indemnity against a contractor based on Alabama’s statute of repose. The indemnity claim arose out of a 2014 accident on an escalator built in...more

Delaware Law Updates – The Court of Chancery Determines $2 Billion Dispute Is One for an Independent Auditor to Decide

In Chicago Bridge & Iron Company N.V. v. Westinghouse Electric Company LLC, C.A. No. 12585-VCL (Del. Ch. Dec. 5, 2016), the Court of Chancery granted a buyer’s motion for judgment on the pleadings, holding that the plain...more

Court Finds No Occurrence for Installation of Defective flooring and Explains Coverage for Attorney Fee Awards

In Navigators Specialty Ins. Co. v. Moorefield Const. (No.G050759, filed 12/27/16), a California appeals court held that the knowing installation of flooring over a vapor-emitting slab was not an accident or occurrence,...more

Annulment of International Arbitral Award: the French Conseil d’Etat Makes First Foray into the Fiefdom of the Civil Cassation...

On 9 November 2016 and for the first time, the French State Council (Conseil d’Etat) set aside an international arbitral award. The award related to a public contract performed in France. The award was partially set aside on...more

NSW Court of Appeal – Security of Payment Act did not permit review of an adjudicator’s determination other than for...

Landmark NSW Court of Appeal Decision - The Supreme Court at first instance had determined that an adjudication determination could be remitted to the adjudicator for re-determination for non-jurisdictional error....more

Oregon High Court Clarifies How To Read the Four Corners of a Complaint

On December 8, 2016, the Oregon Supreme Court issued a decision, West Hills Development Co. v. Chartis Claims, Inc., 360 Or. 650 (2016), clarifying what allegations in a construction defect suit will implicate coverage under...more

Recent NH Supreme Court Opinion Changes the Scope of Liability for the Construction Industry

NH Supreme Court rejects City’s bid to expand nullum tempus - Earlier this week, the New Hampshire Supreme Court issued a significant opinion holding that cities and towns are not exempt from the State’s statute of...more

District Court’s NEPA Judgment Vacated In Case Rendered Moot

On December 13, the U.S. Court of Appeals for the Fourth Circuit decided the case of Catawba Riverkeeper Foundation, et al., v. North Carolina Department of Transportation, et al. The Fourth Circuit concluded that, “[b]ecause...more

Strict Compliance with Performance Bonds

Performance bonds and bank guarantees are commonly used as forms of security under construction and engineering contracts. Calling on a performance bond or bank guarantee requires, in most countries, "strict" compliance with...more

Florida, Sebo and the Concurrent Causation Doctrine

The Florida Supreme Court recently issued a widely reported decision, Sebo v. American Home Assurance Co., which applied the concurrent cause doctrine in ruling that an all-risk homeowner’s insurance policy provides coverage...more

Under Construction - December 2016

Welcome to the winter 2016 edition of our Under Construction newsletter. We hope your year has been good to your family, your company and you as we wrap up these remaining few weeks of 2016. A recent hot topic with...more

Torts – Premises Liability

Al Khosh v. Staples Construction Company, Inc. - Court of Appeal, Sixth Appellate District (October 26, 2016) - Under Privette v. Superior Court (1993) 5 Cal.4th 689, an employee of an independent contractor...more

Eighth Circuit Dismisses Interlocutory FCA Appeal for Lack of Jurisdiction

In this April 2016 decision, the Eighth Circuit held that it lacked jurisdiction to consider the appeal of a two-state agency seeking review of a denial of its motion for summary judgment. Below the two-state agency had...more

New York Court of Appeals Finds Question of Fact Where Plaintiff Sustained Electric Shock and Fell From Ladder

In Nazario v 222 Broadway, LLC, 2016 N.Y. LEXIS 3534 (N.Y. Nov. 21, 2016), plaintiff was performing electrical work as part of a retrofitting or renovation, and was reaching up while standing on the third or fourth rung of a...more

New Pre-Action Protocol for Construction and Engineering Disputes

The Pre-Action Protocol for Construction and Engineering Disputes (PAP) was introduced to encourage disputing parties to exchange information and meet to discuss, and hopefully narrow, the issues before starting court...more

How to enforce adjudication decisions and deal with insolvency

Adjudications on the increase - Anecdotal evidence suggests that adjudications are still on the increase. This increase is supported by the statistics in the Adjudication Society's 15th report, which shows a 5 per cent...more

Court rejects contractor’s mechanic’s lien because of ‘intent’

The Illinois Court of Appeals’ recent decision in AUI Construction Group, LLC v. Vaessen highlights the need for careful planning in structuring development agreements, construction contracts, and the use of an easement as...more

Court Grants Default Judgment Confirming Arbitration Award, With A Lesson On Jurisdiction

Choice Hotels filed an application to confirm an arbitration award of over $247,000 for the alleged breach of a franchise agreement by two defendants, which failed to timely commence construction of a hotel. The defendants...more

Montana Supreme Court Holds Co-Insurer Breached Duty to Defend

In its recent decision in J & C Moodie Properties, LLC v. Deck, 2016 MT 301 (Mont. Nov. 22, 2016), the Supreme Court of Montana had occasion to consider what constitutes a breach of an insurer’s duty to defend in a...more

Virginia Supreme Court Undermines Effectiveness of Flow-Down Provisions in Construction Agreements

The Supreme Court of Virginia recently held in a construction case that typical flow-down provisions found in subcontracts are insufficient to pass through to the subcontractor, a general contractor’s waiver of...more

Evaluating a Project’s “Exacerbation” on Existing Environmental Hazards

Substantial Evidence Proving “Exacerbation” Required, California Appellate Court Says - A significant decision interpreting the scope of the California Supreme Court’s ruling in California Building Industry Association...more

Boards of Contract Appeals Will Prod Contracting Officers to Issue Final Decisions

The Armed Services Board of Contract Appeals (ASBCA) recently demonstrated that it is willing to help government contractors who are waiting many months for a contracting officer to issue a final decision on a pending...more

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