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Construction and Energy Practices Honored With National Awards

Law360 has named two Troutman Pepper practices among its Practice Groups of the Year for 2021. The firm achieved the national recognition for both its Construction and Energy practices. According to Law360, 91 firms submitted nearly 900 nominations for the awards, which “honor the law firms behind the litigation wins and major deals that resonated throughout the legal industry in the past year.”

Construction Group of the Year

“We are excited to be recognized nationally for our work in the construction space,” said Mike Subak, who leads the firm’s Construction Practice Group. “Our team advises industry leaders on both their largest projects as well as their day-to-day details, and the work is incredibly rewarding.”…
Continue Reading Law360 Recognizes Troutman Pepper Practices as 2021 Practice Groups of the Year

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

On April 17, the California Court of Appeal decided Crosno Construction, Inc. v. Travelers Casualty & Surety Company of America,1 effectively narrowing the scope of enforceable “pay-when-paid” provisions in construction subcontracts to the extent the subcontractor seeks recovery against a general contractor’s payment bond surety. Although the Crosno case involved a public works project, the rationale and holding should apply with equal force to private works projects. Basing the bulk of its decision on the Wm. R. Clarke Corp. v. Safeco Insurance Co.2 case, the court found that an open-ended “pay-when-paid” provision in a subcontract is not enforceable against a subcontractor that seeks to recover on a public works payment bond claim. This article discusses the Crosno decision and the implications for contractors on both sides of the contract moving forward.
Continue Reading California Appeals Court Provides Guidance on ‘Pay-When-Paid’ Provisions in Construction Subcontracts

On April 20, Pennsylvania Gov. Tom Wolf amended his March 19, 2020 Order titled, “Regarding the Closure of All Businesses That Are Not Life Sustaining.” Under the previous order, construction was permitted to continue only if the business qualified as “life-sustaining” and was performing emergency repairs or if the business obtained a waiver.

The amended order paves the way for construction projects to start again throughout the Commonwealth. On April 23, Gov. Wolf announced that statewide construction can commence on May 1, 2020 and provided additional information related to the amended order in an accompanying document titled “Guidance for Businesses in the Construction Industry Permitted to Operate During the COVID-19 Disaster Emergency.” Gov. Wolf specified that the amended order applies to “all businesses in the construction industry in the Commonwealth, including those in new construction, renovation, and repair[.]” Prior to May 1, all construction industry businesses must continue to follow existing guidelines. A full list of businesses that may maintain in-person operations before May 1 can be found here.…
Continue Reading Pennsylvania Governor Paves Way to Reopen Construction on May 1

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

Decker Constr. Co. v. Wesex Corp., No. 2:18-cv-727, 2019 BL 232653 (S.D. Ohio June 24, 2019)

In Decker Construction Co. v. Wesex Corporation, the United States District Court for the Southern District of Ohio declined to dismiss a cause of action for fraudulent misrepresentation against Third-Party Defendant Mark Schrader (“Schrader”), the former Chief Financial Officer of Wesex Corporation (“Wesex”).  Wesex served as the general contractor on a construction project in New Albany, Ohio (the “Project”).  In its claim against Schrader, Third Party Plaintiff CCL Label, Inc. (“CCL”), the construction manager on the Project, alleged that Schrader signed affidavits included in Wesex’s payment applications that falsely certified Wesex’s subcontractors had been paid for their work on the Project.  Schrader sought dismissal on the basis that the Court lacked personal jurisdiction over him and that CCL failed to state a claim.
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Continue Reading Ohio Federal Court Declines to Dismiss Action Against the Officer of a General Contractor Who Allegedly Submitted False Certifications Regarding Payments Made to Subcontractors With Payment Applications

  1. Lost profits, not part of unpaid contract balance, may be recoverable as consequential damages in contract claim, but cannot be included in lien. TSP Services Inc. v. National-Standard, LLC, 2019 BL 340267 (Mich. Ct. App. Sept. 10, 2019)

National-Standard, LLC contracted TSP Services, Inc. for asbestos abatement, demolition, restoration, and disposal of scrap steel…

Winger Contr. Co. v. Cargill, Inc., No. 17-1169, 2019 BL 132092 (Iowa Apr. 12, 2019).

On April 12, 2019, the Iowa Supreme Court affirmed a lower court ruling which held that, inter alia, the Iowa mechanic’s lien statute would not permit the attachment of mechanic’s liens to the property of a lessor in connection with a contract to supply materials and labor to a lessee.
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Continue Reading The Lessor of Two Evils: Iowa Supreme Court Holds That Mechanic’s Liens Will Not Attach to the Property of a Lessor for Work Authorized by a Lessee

James Talcott Construction, Inc. v. United States, No. 14-427 C, 2019 BL 72711, at *1 (Fed. Cl. Mar. 4, 2019)

In May of 2010, the United States, acting through the Department of Defense (the “Government”) awarded a contract to James Talcott Construction, Inc. (“Talcott”) to replace existing housing for military families at the Malmstrom Air Force Base in Great Falls, Montana.  Talcott was required to construct thirteen buildings, each comprising seventy housing units.  Each building was to be constructed with concrete foundations and wood framing, and the project’ design called for wooden floor joists and subfloor decking to be enclosed in crawlspaces.  The contract stated that the “structural drawings and specification represent the finished structure… [but] do not indicate the method of construction.  The contractor will provide all measures necessary to protect the structure during construction.”  The plans and specifications were silent as to ventilation of the crawlspaces.
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Continue Reading Court of Federal Claim Rejects Spearin Claim and Holds Contractor Responsible for Failure to Prevent Mold Growth

Hagen Constr. Inc. v. Whiting-Turner Contracting Co., No. JKB-18-1201, 2019 BL 36862 (D. Md. Feb. 04, 2019)

This case arises out of the construction of a pediatric outpatient center in southern New Jersey.  Plaintiff subcontractor Hagen Construction, Inc. (“Hagen”) filed suit in New Jersey state Court against defendant general contractor Whiting-Turner Construction Co. (“W-T”), seeking reimbursement for labor inefficiency costs incurred as a result of W-T’s alleged project mismanagement.  Hagen claimed it incurred additional costs to repeat work and remobilize to multiple areas because it was not afforded unimpeded access or timely supply of necessary materials and information.  Once the case was removed and transferred to Maryland federal Court, W-T moved for partial summary judgment on the portion of Hagen’s breach of contract claim reflecting labor inefficiency costs.
Continue Reading Federal Court in Maryland Holds Subcontractor Waived Right to Bring Labor Inefficiency Claim Despite Voicing ‘Expression[s] of Frustration’ and ‘General Complaints’ of Mismanagement Throughout Project