Taylor Morrison of Tex. Inc. v. Caballero, No. 01-20-00800-CV, 2022 Tex. App. LEXIS 1870, 2022 WL 839429 (Mar. 22, 2022)

Gary and Kelley Caballero contracted to purchase a new home to be constructed by Taylor Woodrow and Taylor Morrison of Texas, Inc. (Taylor). The contract contained an agreement to arbitrate any disputes with the American Arbitration Association (AAA) under the Federal Arbitration Act (FAA).

Continue Reading Texas Court of Appeals Enforces Arbitration Agreement Provision Delegating Issues of Arbitrability to Arbitrator

The Economic Loss Doctrine and its various analogues (e.g., the Independent Duty Rule and the Gist of the Action Doctrine) vary in form and application, but each is a judge-made rule serving one principle: If a party seeks the same economic losses for breach of contract and breach of a common law tort duty, courts must bar the tort claim to prevent a duplicative, windfall recovery. Most frequently, the Economic Loss Doctrine bars negligence claims. Its outer bounds begin with intentional torts, and most jurisdictions do not apply the Economic Loss Doctrine to fraud claims.

Continue Reading Fraud as an Exception to the Economic Loss Doctrine: Changing Trends in Colorado and Tennessee

This article summarizes the current landscape in Pennsylvania and California as COVID-19 restrictions are lifted, and highlights important considerations for employers in the construction industry in relation to vaccines and navigating a post-mask mandate world.

Continue Reading COVID-19 and Remobilization: Returning to the Construction Site Without Mandated COVID-19 Restrictions

The COVID-19 pandemic continues to impact the construction industry, and many countries continue to implement new or more stringent restrictions on entry into their borders. Those travel restrictions can impact any company with cross-border supply chains or employee travel. This article addresses some of the travel restrictions in place in the United States, Canada, and members of the European Union (EU); exceptions to those requirements; and some best practices when navigating across borders.
Continue Reading COVID-19 and Border Crossings: Considerations and Best Practices for Global Constructors and Suppliers Crossing US, Canadian, and European Borders

Mealey’s International Arbitration Report – Nov. 2020
[Editor’s Note: Copyright
# 2020, LexisNexis. All rights reserved.]
Commentary by Troutman Pepper Partner Albert Bates, Jr.

Mealey’s International Arbitration Report recently asked industry experts and leaders for their thoughts on what events had an impact on global economy that have led to an increase in filings. We would like to thank the following individuals for sharing their thoughts on this important issue.

  • Sarah Reynolds, Partner, Mayer Brown, Chicago
  • Peter A. Halprin, Partner, Pasich LLP, New York
  • Helen Conybeare Williams, Counsel & Solici­tor Advocate, Haynes and Boone LLP, London
  • Sandra Smith Thayer, Partner, Pasich LLP, Los Angeles
  • Lisa Houssiere, Principal, McKool Smith, Houston
  • Gene Burd, Partner, FisherBroyles, Washington
  • Albert Bates Jr., Partner, Troutman Pepper, Pittsburgh
  • Charlie Lightfoot, Co-chair of International Arbitration Practices and Managing Partner, Jenner & Block, London
  • Thomas Wingfield, Associate, Jenner & Block, London.
    Continue Reading International Arbitration Experts Discuss The Impact On The Global Economy

When is it going to return to “normal”? We all have been asking that question. Well, for the construction industry, it may never return to “normal.” COVID-19 may have permanently changed the landscape of the construction industry in many ways. Depending on your perspective, many changes could be for the better. We may have to alter how we do business to address some new issues and business concerns. Here are just a few issues that the pandemic has brought to the forefront of our industry.
Continue Reading Subtle (and Not So Subtle) Effects of COVID-19 on the Construction Industry

On June 8, 2020, Level 10 Construction, LP (“Level 10”), a construction company hired by Sea World San Diego (“Sea World”), filed a Complaint in California federal court alleging that Sea World is withholding over $3.2 million dollars in payments from Level 10. In the Complaint, Level 10 alleged that Sea World has declined to issue payments until the Sea World park reopens. Sea World has remained closed since March 2020 due to COVID-19.
Continue Reading Level 10 Construction v. Sea World LLC: Can Force Majeure Save Sea World?

P.A.L. Environmental Safety Corp. v. North American Dismantling Corp. Et Al., No. 19-11630, 2020 BL 198779 (E.D. Mich. May 28, 2020)

A Michigan federal court partially granted Consumers Energy Company’s (“CEC”) motion to dismiss P.A.L. Environmental Safety Corporation’s (“PAL”) complaint alleging numerous causes of action in connection with its suit against CEC and contractor North American Dismantling Corporation (“NADC”) for outstanding payment stemming from asbestos abatement work at a CEC-owned power plant in Essexville, Michigan (the “Power Plant”).

According to the decision, CEC, as owner, and NADC, as prime contractor, entered into a written contract whereby NADC agreed to abate, dismantle, and demolish the Power Plant.  In turn, NADC subcontracted with PAL to perform abatement of all asbestos containing material at the Power Plant.  While the subcontract price was $7,996,331, PAL alleged entitlement to an adjusted price of $23,841,833 in unpaid labor and materials for its asbestos abatement work.  Specifically, PAL alleges that it performed additional work not accounted for in the subcontract including fly ash and coal dust removal, refractory brick abatement, and extra asbestos removal.

While PAL’s complaint included numerous counts against Defendants NADC, CEC, and labor and material payment bond surety North American Specialty Insurance Company (“NASIC”), the opinion is most notable for its treatment of CEC’s motion to dismiss several counts against it including: (i) quasi-contractual claims; (ii) a third-party breach of contract claim; and (iii) a negligent misrepresentation claim.
Continue Reading Michigan Federal Court Permits Subcontractor’s Quasi-Contractual Claims to Proceed Despite Existence of Express Contract Covering the Same Subject Matter

Gables Construction, Inc. v. Red Coats, Inc., No. 23, 2020 BL 193791, 2020 MD LEXIS 264 (Md. May 26, 2020)

Upper Rock II, LLC (“Upper Rock”) contracted Gables Construction, Inc. (“GCI”) to construct a multi-building apartment complex in Rockville, Maryland (the “Project”) per the terms of the American Institute of Architects (“AIA”) A102TM-2007, Standard Form Agreement Between Owner and Contractor and AIA A201TM – 2007, General Conditions of the Contract for Construction.  The General Conditions required Upper Rock to purchase and maintain a property insurance policy.  It also contained a waiver of subrogation provision under which Upper Rock waived all rights against GCI and other Project participants for damages caused by fire to the extent covered by insurance.
Continue Reading Maryland Court Holds No Right of Contribution Where a Waiver of Subrogation Precludes Common Legal Responsibility