Construction contracts often include clauses that purport to limit the liability of one or both parties. This includes clauses that completely prohibit any claims for certain types of damages such as lost profits and other...more
The court in AECOM v. Flatiron is back at it issuing additional evidentiary rulings as the parties head to trial later this month. These latest rulings highlight the risk of seeking the same damages from multiple parties,...more
A Colorado federal court will allow a contractor to prove up more than $250 million in damages using the modified total cost method (see AECOM Technical Services v. Flatiron AECOM, LLC, Case No. 19-CV-2811, 2024 WL 22640 (D....more
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
A Minnesota federal court dismissed a tunnelling contractor’s differing site condition claim because notice of the condition was given eight days after the conditions were first observed whereas the contract required notice...more
A Texas court has rejected a pipeline contractor’s $25 million claim for additional costs based on broad release language include in an executed change order (see Wood Group, USA v. Targa NGL Pipeline Company, LLC, No....more
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
The Eleventh Circuit Court of Appeals issued a decision last week upholding an arbitral award, despite the failure of the arbitrators to make certain pertinent disclosures. The case involves an international arbitration...more
8/23/2023
/ Appeals ,
Arbitration ,
Arbitration Awards ,
Arbitrators ,
Construction Disputes ,
Construction Project ,
Delays ,
Disclosure ,
Federal Arbitration Act ,
International Arbitration ,
International Chamber of Commerce (ICC) ,
Vacated
Earlier this month, the State of Washington Court of Appeals affirmed a $150 million jury verdict against subcontractors involved in the disassembly of a tower crane that collapsed in 2019. The collapse, which was caught on...more
8/11/2023
/ Appeals ,
Construction Accidents ,
Construction Cranes ,
Construction Industry ,
Construction Litigation ,
General Contractors ,
Jury Verdicts ,
Settlement ,
Subcontractors ,
Washington ,
Workplace Fatalities ,
Workplace Safety
Who said legal opinions have to be boring? Not Judge Terrence L. Michael of the U.S. Bankruptcy Court for the Northern District of Oklahoma, who last week issued a colorful opinion rejecting a home builder’s creative claim...more
Every first year law student in the U.S. takes a course on the Law of Contracts. It’s a rite of passage where lawyers-to-be learn all about things like consideration and legally-enforceable promises. And as lawyers, we also...more
A federal court in Louisiana last week refused to enforce a limitation of liability provision included in an extra work order holding that it was trumped by the parties’ subcontract (see Planet Construction v. Gemini...more
Loss of productivity damages are commonly estimated using a “measured mile” analysis, which compares unimpacted construction work to work which has been disrupted to determine the cost impact of the disruption. Such analyses...more
Many subcontracts contain a catch-all provision requiring the subcontractor to do everything the prime contractor is obligated to do under the prime contract. This is known as an “incorporation” clause because it adopts or...more
Another week, another fee-shifting case. This ones involves a 28-unit condo project in the Houston Heights neighborhood of Houston (see 2017 Yale Development, LLC v. Steadfast Funding, LLC, 2023 WL 3184028 (Tex. App. May 2,...more
5/22/2023
/ Appellate Courts ,
Attorney's Fees ,
Breach of Contract ,
Construction Liens ,
Counterclaims ,
Fees ,
Fraud ,
Promissory Notes ,
Remand ,
Summary Judgment ,
Termination for Default ,
Trial Court Orders
Last week we saw the Menard court reject the use of an indemnity clause to shift fees in a dispute between contracting parties. This week, a very recent decision from Nevada highlights another creative way to shift fees where...more
The construction industry is full of valuable business information including customer lists, pricing information, project budgets, and more. The value of such information may be lost if it becomes known to a competitor or the...more
4/24/2023
/ Business Litigation ,
Competition ,
Confidential Information ,
Confidentiality Agreements ,
Construction Industry ,
Data Protection ,
Data Security ,
Employees ,
Employer Liability Issues ,
Employment Litigation ,
Former Employee ,
Information Sharing ,
Information Technology ,
Intellectual Property Protection ,
Trade Secrets
A recent case out of Washington serves as a good reminder to preserve evidence that may be relevant to pending or future litigation. That includes not only evidence in the form of documents and electronic information, but...more
Earlier this week we saw the court in Patriot Construction use the waiver doctrine to excuse a subcontractor’s failure to strictly comply with the documentation requirements of the contract. As a litigant in Illinois federal...more
In a unanimous decision released last week, the Alabama Supreme Court delivered a significant victory for manufacturers defending products liability claims in Hosford v. BRK Brands, Inc. As in most jurisdictions, a plaintiff...more