TRANSFERRING VENUE OF MILLER ACT PAYMENT BOND LAWSUIT PER MANDATORY FORUM SELECTION PROVISION
Many construction contracts contain a forum selection provision that requires disputes to brought in a particular jurisdiction. A mandatory forum selection provision will use words of exclusivity, like “shall,” that unequivocally requires disputes to be brought in that jurisdiction. On the other hand, a...
SUIT ON SUBCONTRACTOR’S COMMON LAW PAYMENT BOND
When a subcontractor furnishes a payment bond, is it referred to as a common law payment bond governed by state law. There is no federal statute (or even state statute in most jurisdictions) governing the requirements of a subcontractor’s payment bond, hence the reason...
CONTRACTOR PREVAILING AGAINST SUBCONTRACTOR ON COMMON LAW INDEMNITY CLAIM
Common law indemnity is not an easy claim to prove as the one seeking common law indemnity MUST be without fault:
Indemnity is a right which inures to one who discharges a duty owed by him, but which, as between himself and another,...
QUICK NOTE: SIMPLE BUT THORNY ISSUE OF “CONCURRENT DELAY”
The definition of “concurrent delay” seems simple, but it can give rise to thorny issues including misunderstandings, not truly digging into the causes of the alleged concurrent delay, and the lack of apportionment of the concurrent delay period. This is why when dealing with any delay it...
CONSTRUCTION LIEN FORECLOSURE ACTION MUST BE BROUGHT IN COUNTY WHERE PROPERTY LOCATED
A construction lien foreclosure action is an action against the real property and MUST be brought in the county where the property is located. It is an action concerning subject matter jurisdiction (the jurisdiction of the court to hear the matter) and, thus, can be raised at any...
CERTIFYING CLAIM UNDER CONTRACT DISPUTES ACT
Under the Contract Disputes Act (41 USC 7101 en seq.), when a contractor submits a claim to the government in excess of $100,000, the claim MUST contain a certification of good faith, as follows:
For claims of more than $100,000 made by a...
DEMONSTRATING A FRAUDULENT INDUCEMENT CLAIM OR DEFENSE
In a recent case, Florida’s Fourth District Court of Appeal reversed a trial court’s denial of a motion for a temporary injunction sought by an employer due to an independent contractor’s violation of a non-compete and non-solicitation provision in an employment / independent contractor agreement (“employment agreement”). You...
ENFORCEMENT OF CONTRACTUAL TERMS (E.G., FLOW-DOWN, FIELD VERIFICATION, SHOP DRAWING APPROVAL, AND NO-DAMAGE-FOR-DELAY PROVISIONS)
What you contractually agree to matters, particularly when you are deemed a sophisticated entity. This means you can figuratively live or die by the terms and conditions agreed to. Don’t take it from me, but it take it from the Fourth Circuit’s decision in U.S. f/u/b/o Modern Mosaic, Ltd. v....
MUTUAL OR CONCURRENT DELAY CAUSED BY SUBCONTRACTORS
How are delay damages treated when two subcontractors cause a mutual or concurrent delay to the project?
Assume multiple subcontractors concurrently contributed to an impact to the critical path resulting in a delay to the project. The delay caused the prime contractor to: (1) be assessed
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David Adelstein
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