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PROVING IMPACTS TO CRITICAL PATH TO DEFEAT LIQUIDATED DAMAGES ASSESSMENT

Posted on 15 September, 2019
When a contractor is staring down the barrel of an owner’s assessment of liquidated damages, the burden will fall on the contractor to establish that the delay was attributable to the owner and the owner’s agents.  The contractor will want to do this not only to defeat the...

GENERAL CONTRACTOR SUPPORTING A SUBCONTRACTOR’S CHANGE ORDER ONLY FOR OWNER TO REJECT THE CHANGE

Posted on 8 September, 2019
The opinion in Westchester Fire Ins. Co, LLC v. Kesoki Painting, LLC, 260 So.3d 546 (Fla. 3d DCA 2018) leads to a worthy discussion because it involves a common scope of work occurrence on construction projects involving a general contractor and subcontractor.  The contractor submits a subcontractor's change order request...

STATUTORY CHANGE TO NOTICES OF NONPAYMENT TO PRESERVE RIGHTS UNDER PAYMENT BOND

Posted on 3 September, 2019
Mark this on your calendar – beginning on October 1, 2019 subcontractors and suppliers (e.g., claimants/lienors) serving a notice of nonpayment to preserve rights under a payment bond must now do so under oath. But, that is not all. The notice of nonpayment form...

VENUE FOR MILLER ACT PAYMENT BOND WHEN PROJECT IS OUTSIDE OF US

Posted on 1 September, 2019
The proper venue for a Miller Act payment bond claim is “in the United States District Court for any district in which the contract was to be performed and executed, regardless of the amount in controversy.” 40 U.S.C. s. 3133(b)(3)(B). Well, there are a number of federal construction projects...

CONSIDER THE RISKS ASSOCIATED WITH AN EXCULPATORY CLAUSE

Posted on 25 August, 2019
An exculpatory clause in a contract is a clause aimed at relieving another party from certain liability. A disclaimer and insulation from liability.   Obviously, if you are the party relieving the other party from liability, you want to consider this risk including the potential enforceability of this risk...

GUESSING AS TO YOUR CONSTRUCTION DAMAGES IS NOT THE BEST APPROACH

Posted on 24 August, 2019
Arbitrarily guessing as to your construction damages is NOT the best approach.  Sure, experts can be costly.  No doubt about it.  Having an expert versus guessing as to your construction damages caused by another party’s breach of contract is a no brainer.  Engage an expert or, at a...

TEN-YEAR STATUTE OF REPOSE TO SUE FOR LATENT CONSTRUCTION DEFECTS

Posted on 18 August, 2019
If you are dealing with latent construction defects, it is imperative that you consult with counsel to understand your rights.  This not only includes claims for property damage stemming from latent construction defects, but also personal injury stemming from such defects.  There is a ten-year statute...

CLAIMS MADE INSURANCE POLICIES

Posted on 11 August, 2019
"Claims-made policies are common in the professional liability insurance market. They “differ from traditional ‘occurrence’-based policies primarily based upon the scope of the risk against which they insure.” With claims-made policies, coverage is provided only where the act giving rise to coverage “is discovered and brought to the attention of the...

EQUITABLE DOCTRINE OF ESTOPPEL CAN DEFEAT ARGUMENT FOUNDED ON LEGAL TECHNICALITY

Posted on 5 August, 2019
Arguing a legal technicality, even if one hundred percent right, does not always work, especially when you may have reaped the benefits of the same technicality.  This is because there is a legal doctrine known as estoppel that is based on principles of equity.  

Estoppel is an equitable doctrine...

SUBSEQUENT PURCHASER OF HOME COMPELLED TO ARBITRATION BASED ON COVENANT RUNNING WITH THE LAND

Posted on 5 August, 2019
Arbitration provisions are creatures of contract and courts should indulge reasonable presumptions in favor of requiring parties to arbitrate.   Keep this in mind when agreeing to an arbitration provision or trying to navigate around an arbitration provision.   An example of a court...
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