Damages, Construction Litigation

Breach it and weep: deemed fulfilment ain’t fictional

A&O Shearman on 7/15/2024

The Court of Appeal has held that a party who prevents a condition precedent to their obligation to pay from being met cannot rely on the unfulfilled condition to escape their liability in debt....more

Mistake No. 4 of the Top 10 Horrible, No-Good Mistakes Construction Lawyers Make: Not Knowing When to Fold ‘Em

Bradley Arant Boult Cummings LLP on 6/11/2024

I have practiced law for 40 years with the vast majority as a “construction” lawyer. I have seen great… and bad… construction lawyering, both when representing a party and when serving over 300 times as a mediator or...more

Limitation of Damages Clause in Contract Held Inapplicable to Subcontractor’s Change Order Claim

Bradley Arant Boult Cummings LLP on 2/16/2024

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 Risk of Fighting on Two Fronts: Court Admits Evidence of General Contractor’s Claims Against Other Parties

Bradley Arant Boult Cummings LLP on 2/1/2024

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

The Modified Total Cost Method to Calculating Construction Damages

Bradley Arant Boult Cummings LLP on 1/18/2024

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

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

Bradley Arant Boult Cummings LLP on 10/23/2023

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

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

Bradley Arant Boult Cummings LLP on 10/6/2023

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

Liquidated Damages Disproportionate to Actual Damages Deemed Unenforceable

Bradley Arant Boult Cummings LLP on 9/11/2023

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

Damages in Construction Claims: Are “Actual Costs” Actually Required?

Bradley Arant Boult Cummings LLP on 2/14/2023

The golden standard for the measure of damages in a construction case alleging defective or incomplete work are the actual costs of completion or repair. That is to say, if there is a breach (or multiple breaches) of quality...more

Tennessee Court Extends Economic Loss Doctrine to Construction Claims

Bass, Berry & Sims PLC on 5/25/2022

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