True to form, Texas has joined the majority in adopting the Spearin concept in its own way. The new law is thoughtfully designed for modern alternative and hybrid project delivery methods and cannot be waived by agreement, say Troutman Pepper Construction group attorneys Ben Deninger and David Mancini.
Bean Sprouts LLC v. LifeCycle Construction Servs. LLC, No. 001268-CV-2021 (Pa. Super. Feb. 17, 2022)
The Superior Court of Pennsylvania recently raised the bar for state courts to assert jurisdiction over out-of-state defendants in actions brought by residents arising from out-of-state projects.…
Continue Reading Pennsylvania Appellate Court Affirms Dismissal of In-State Subcontractor’s Suit Against Out-of-State General Contractor for Lack of Jurisdiction, Despite “Long-Term and Ongoing Contractual Relationships”
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
United States Army Corps of Engineers v. John C. Grimberg Co., Inc., No. 2019-1608, 2020 BL 215269 (Fed. Cir. June 9, 2020)
The Court of Appeals for the Federal Circuit reversed a decision by the Armed Services Board of Contract Appeals (“Board”), which had found in favor of a contractor on a Type I differing site condition claim. The Board had held that, even though the contractor’s interpretation of the contract documents was unreasonable, it was more reasonable than the government’s. The Federal Circuit reversed, holding, as a matter of law, that the contractor’s unreasonable interpretation of the contract documents barred its claim.
Continue Reading Federal Court Holds the Reasonableness of the Government’s Interpretation of Geotechnical Data is Irrelevant to Differing Site Condition Claim
COVID-19 has created a severe disruption to the construction industry. Certain jurisdictions, including Boston, San Francisco and Pennsylvania, have placed restrictions on construction projects deemed “nonessential” and require waivers for certain projects to continue. Owners, contractors, suppliers and others may currently have more questions than answers. This article addresses some important concerns, and provides links to additional resources that more specifically address these concerns.
Continue Reading COVID-19 and the Construction Industry: Important Considerations
This article was originally published on December 3, 2019 on ConsensusDocs. It is reprinted here with permission.
Construction contracts often include a “no damage for delay” clause that denies a contractor the right to recover delay-related costs and limits the contractor’s remedy to an extension of time for noncontractor-caused delays to a project’s completion date. Depending on the nature of the delay and the jurisdiction where the project is located, the contractual prohibition against delay damages may well be enforceable. This article will explore whether an enforceable no-damage-for-delay clause is also a bar to recovery of “acceleration” damages, i.e., the costs incurred by the contractor in its attempt to overcome delays to the project’s completion date.
Continue Reading Does a No-Damage-for-Delay Clause Also Preclude Acceleration Damages?
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 Francisco. During construction, property owner and plaintiff Chinese Hospital Association (“Chinese Hospital”) became aware of alleged defects involving the designs provided by its subcontractor, architect-defendant Jacobs Engineering Group, Inc. (“Jacobs”). Chinese Hospital terminated its contract with Jacobs for convenience mid-construction.
Continue Reading Owner Did Not Waive Right to Damages by Terminating Design Contract for Convenience
Skanska USA Building, Inc. v. J.D. Long Masonry, Inc., No. 1:16-cv-00933, 2019 BL 336852, (D. Md. Sept. 9, 2019)
On September 9, 2019, a Maryland federal court awarded Skanska USA Building, Inc. (“Skanska”) compensatory damages, pre- and post-judgment interest, and litigation expenses including attorney and expert fees in its suit against subcontractor J.D. Long Masonry, Inc. (“Long”) for defective masonry work at a Johns Hopkins University research facility.
Continue Reading Maryland Federal Court Upholds Contractual Indemnity Clause and Awards Judgment Interest and Attorneys Fees in Masonry Suit
MBlock Investors, LLC v. Bovis Lend Lease, Inc., etc., et al., 44 Fla. L. Weekly d1432 (3d DCA 2019)
A Florida Appellate Court recently reversed a trial court’s decision granting summary judgment finding an issue of fact based upon an expert affidavit. The underlying matter involved an action by MBlock Investors against Lend Lease (US) Construction, Inc. for latent defects following MBlock’s acquisition of a property commonly known as the Midblock Miami East Project (the “Property”).
Continue Reading Florida Court of Appeals Permits Successor-In-Interest to Pursue Claims Originally Thought to Be Barred by Settlement Agreement
DAK Americas Mississippi, Inc. v. Jedson Engineering, Inc. et al, No. 1:18cv31-HSO-JCG, 2019 BL 208838 (S.D. Miss. June 6, 2019)
This dispute arose out of the design and construction of a concrete storage slab at DAK’s polymer resin manufacturing facility located in Hancock County, Mississippi. DAK hired Ohio-based Jedson to design and oversee the construction of a cement slab suitable for commercial operating loaders and other heavy equipment necessary to transport, unload, and stack shipping containers. DAK allegedly discovered substantial cracking and chipping of the cement, and filed suit in federal court claiming Jedson failed to design a slab suitable for DAK’s intended purposes. DAK asserted claims for negligent design, negligent construction management, and breach of contract.
Continue Reading Federal Court Finds That Ambiguous Limitation-of-Liability Clause Did Not Clearly Restrict Owner’s Claims