News & Analysis as of

Damages Breach of Contract Construction Contracts

Bradley Arant Boult Cummings LLP

Substantial Performance v. Material Breach

All breaches are not created equal. A minor, technical breach may be deemed “immaterial.” Other breaches – so-called “material” breaches — deprive the non-breaching party of something important or essential to the purpose of...more

Bradley Arant Boult Cummings LLP

Second Circuit: No-Damages-For-Delay Clause Bars Claim

The Second Circuit Court of Appeals recently applied a no-damages-for-delay provision to affirm the dismissal of a demolition contractor’s breach of contract claims. The project involved reconstructing and raising the Bayonne...more

Bradley Arant Boult Cummings LLP

Court Affirms Dismissal of Subcontractor’s Wrongful Termination Counterclaim and Clarifies Scope of Upcoming Trial on Damages

Back in April we examined the court’s decision in Boldt v. Black & Veatch, which dismissed a subcontractor’s counterclaim for wrongful termination on a 60-turbine wind farm project. As you may recall, the subcontractor hired...more

Bradley Arant Boult Cummings LLP

Court Rejects Contractor’s Claim That COVID-19 Rendered Performance Impossible

A fundamental premise of contract law is that promises must be kept. If legally enforceable promises or “contracts” are not kept, courts may step in to enforce them by ordering performance, awarding damages, or granting some...more

Bradley Arant Boult Cummings LLP

Liquidated Damages Disproportionate to Actual Damages Deemed Unenforceable

Construction contacts often include provisions that provide for pre-determined or “liquidated” damages in the event of a breach. Such provisions can provide certainty to the parties as to the consequences of a breach and can...more

Bass, Berry & Sims PLC

Tennessee Court Extends Economic Loss Doctrine to Construction Claims

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The Tennessee Court of Appeals recently issued an opinion extending application of the economic loss doctrine to certain construction claims. Among other things, the economic loss doctrine prevents a party from recovering on...more

BCLP

Assessment of damages for breach of contract: costs of cure vs difference in value

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The most common remedy for breach of contract is the award of damages. The usual aim of the court is to place, as far as possible, the innocent party in the position it would have been in had the breaching party performed...more

Buchalter

Pre-Bid Documents and Estimates Can’t Be Hidden Behind the Curtain in Disputed Delay Claims

Buchalter on

In WDF, Inc. v. City of New York,  No. 652478 (N.Y. Sup.) (Mar. 12, 2021), the contractor filed suit to recover damages from the City on numerous combined waste water treatment projects.  The contractor claimed that the City...more

BCLP

Global Water Associates: applying Hadley v Baxendale

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From time to time, those seminal cases we all studied during the early parts of our career pop up in practice. We’re all familiar with them: the snail in the bottle in Donoghue v Stevenson; the spurious sounding flu remedy in...more

Bradley Arant Boult Cummings LLP

Prior Material Breach May Excuse Performance, but the Factfinder Must Agree It Was a Material Breach

In most jurisdictions, a party may be excused from any future performance under a contract by the prior material breach of the other party. A “prior material breach” is typically defined as conduct that deprives the injured...more

Troutman Pepper

Owner Did Not Waive Right to Damages by Terminating Design Contract for Convenience

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Chinese Hosp. Ass’n v. Jacobs Eng’g Grp., Inc., 2019 BL 330340, 2 (N.D. Cal. Sept. 03, 2019) - This case arises out of the alleged breach of contract and defective design for the construction of a new hospital in San...more

Bricker Graydon LLP

When are damages based on unjust enrichment appropriate?

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Ohio courts have long been in agreement that “[i]t is clearly the law in Ohio that an equitable action in quasi-contract for unjust enrichment will not lie when the subject matter of that claim is covered by an express...more

White & Case LLP

Turning off auto-correct? Employers' ability to recover costs of correcting contractors' defects

White & Case LLP on

In Thio Keng Thay v Sandy Island Pte Ltd [2019] SGHC 175 the High Court of Singapore confirmed that an employer may recover damages for rectifying defects even when it has done so in breach of a contractual defects...more

White and Williams LLP

Wisconsin Supreme Court Holds that Subrogation Waiver Does Not Violate Statute Prohibiting Limitation on Tort Liability in...

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In Rural Mut. Ins. Co. v. Lester Bldgs., LLC 2019 WI 70, 2019 Wisc. LEXIS 272, the Supreme Court of Wisconsin considered whether a subrogation waiver clause in a construction contract between the defendant and the plaintiff’s...more

Troutman Pepper

Federal Court in Louisiana Upholds Suspensive Condition Not Subject Solely to Owner’s Whim

Troutman Pepper on

Team Contractors, LLC v. Waypoint Nola, LLC, No. 16-1131, 2019 BL 96133 (E.D. La. Mar. 20, 2019) - The Eastern District of Louisiana recently denied the motion of a prime contractor (the “Contractor”) for summary judgment...more

Bradley Arant Boult Cummings LLP

Casting the First Stone: Contractors Considering Default Termination Should Examine Which Party Committed First Material Breach -...

During a construction project, circumstances may arise that lead a general contractor to consider termination of a subcontractor’s right to proceed under the subcontract. The Randy Kinder Excavating v. J.A. Manning...more

Bradley Arant Boult Cummings LLP

Failure by Injured Party to Take Reasonable Action May Limit Recovery - Construction and Procurement Law News, Q2 2018

There are instances where a party’s breach of the construction contract is undisputed. However, the amount of recoverable damages often hinges on the injured party’s own conduct both during and following that breach. The...more

Carlton Fields

Appeal it All! Guarding Against Multiple, Independent Grounds

Carlton Fields on

You’ve identified a killer issue for appeal, no doubt a winner. Congratulations! You still lose. How can that be? In Novum Structures, LLC v. Choate Construction Company, Inc., 698 Fed. Appx. 608 (11th Cir. 2017), the...more

Pullman & Comley, LLC

Appellate Court Notes

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Appellate Court Advance Release Opinions - AC36506 - Sidorova v. East Lyme Board of Education - Due to budget cuts, the Board of Education laid off the plaintiff who was a tenured French teacher. She sued for...more

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