On March 2, the New Mexico House of Representatives unanimously approved House Bill 213, which would allow public agencies to enter into P3 agreements to facilitate public infrastructure and broadband projects. The public infrastructure component covers the construction or improvement of public transportation facilities or public transportation other than toll roads. The bill sets out required steps that public agencies must take before entering a P3 agreement, such as conducting a public hearing for the proposed P3 project and undertaking a cost-benefit analysis on using a P3 in comparison with traditional public partner-managed projects. The bill also creates a public-private partnership board, consisting of six senior state officials and five members of the public appointed by the New Mexico legislature to review and approve P3 projects costing over $10 million. Many of the bill’s requirements mirror those associated with obtaining federal funding under programs like the Transportation Infrastructure Finance and Innovation Act (TIFIA). The bill currently sits with the New Mexico Senate Judicial Committee for further consideration.

In All Seasons Landscaping, Inc. v. Travelers Cas. & Sur. Co. of Am., a Connecticut court considered for the first time whether the performance of warranty work tolls the statute of limitations on payment bond claims. The court ruled that it does not. It dismissed subcontractor All Seasons Landscaping, Inc.’s (ALS’s) bond claim because ALS admitted that it last performed non-warranty work on the project more than one year before filing suit, meaning the statute of limitations barred its claim.

Industrial Steel Construction, Inc. v. Lunda Construction Company, 33 F.4th 1038, 1041 (8th Cir. 2022)

This federal case relates to the construction of a bridge over the Mississippi River between Iowa and Illinois. The state of Iowa hired Lunda Construction Company (Lunda) as the general contractor for the project, which contracted Industrial Steel Construction, Inc. (ISC) to fabricate the structural steel for the bridge. A breach of contract dispute arose between Lunda and ISC that resulted in an arbitration pursuant to the contractual dispute resolution provisions. The arbitrator ruled entirely in favor of Lunda, including awarding Lunda its attorneys’ fees and expert costs, and requiring ISC to reimburse Lunda for its half of the cost of the arbitration.

2700 Bohn Motor, LLC v. F.H. Myers Construction Corp., 338 So.3d 500 (La. Ct. App. 2022).

This case involved the restoration of an old building in New Orleans. Fire broke out, resulting in a loss that was paid by the owner’s builder’s risk insurance. The builder’s risk carriers — subrogated to the rights of the owner — then sued the prime contractor, its subcontractor, and sub-subcontractor for negligence.

Practice Recognized for Major Deals, Litigation Wins in 2022

NEW YORK – For the second consecutive year, Troutman Pepper’s Construction Practice Group has been recognized nationally among Law360’s Practice Groups of the Year. The firm was among only four to receive the 2022 Practice Group of the Year designation in the Construction category.

Hanuman Chalisa, LLC v. BoMar Contr., Inc., 2022-Ohio-1111, 187 N.E.3d 1108 (Ct. App.)

Hanuman Chalisa LLC (owner) contracted BoMar Contracting, Inc. (BoMar) to construct a hotel in Columbus, OH. The contract consisted of the AIA A101-2007 and AIA A201-2007. The owner later terminated BoMar, alleging deficiencies in BoMar’s work. The parties disputed whether the owner terminated the contract “for cause” or “for convenience.”

Accreditation: An extract from Thomas Reuters Practical Law. The full document is available at https://content.next.westlaw.com/practical-law/document/I3e46a7343fed11ed9f24ec7b211d8087/Standard-Arbitration-Clause-for-Construction-Contract.

Troutman Pepper Partners Albert Bates and Zach Torres-Fowler published a Thomas Reuters Practical Law guide for drawing construction arbitration clauses.

NEW YORK – Troutman Pepper, as specialty construction counsel, represented a consortium of investors consisting of Vantage Airport Group, JetBlue, American Triple I, and RXR Realty in a deal to build, finance, and operate a new US$4.2 billion passenger terminal at New York’s John F. Kennedy International Airport (JFK). The financial close of the deal was announced on November 17.

RKI Expl. & Prod., LLC v. Ameriflow Energy Servs., LLC, No. 02-20-00384-CV, 2022 Tex. App. LEXIS 4331 (Tex. App. June 23, 2022)

A recent decision by the Court of Appeals of Texas highlights the perils of failing to properly assert a demand for contractual indemnity.

In 2014, a piece of equipment, known as a sand separator, exploded at an oil well in Loving County, TX, killing two individuals and injuring three others. RKI Exploration & Production LLC operated the oil well. RKI contracted with Ameriflow Energy Services LLC and Crescent Services LLC through two master service agreements (MSAs) and a series of work orders.

New York State Thruway Auth. v. CHA Consulting, Inc., 165 N.Y.S.3d 832 (Albany Co., Sup. Ct. 2022).

This case involved a dispute over a wind turbine project. The root cause of the dispute was a bust between the “wind turbulence” at the site, and the wind turbulence that the turbines installed could withstand. Once the project was completed and commissioned, the overworked turbines prematurely failed.