Total Support For the “Modified Total Cost Method” Pricing of Claims

By Dave Lannetti The "total cost method" of quantifying construction claims historically has been disfavored. This methodology compares the bid price of the project work with the total cost of the project work as performed, attributing the entire cost increase to the acts or omissions...

If You Build It, He Will Come (And Sue You)

By Randy Maniloff, Partner, White and Williams LLP 3 rd Circuit Addresses Construction Defect Coverage Under New Jersey Law The recent construction of New Meadowlands stadium in New Jersey - home of the Giants and Jets - has brought back talk of the longstanding urban legend that Teamsters Union...

More on Fraud, Opinions and Contracts

Here at Construction Law Musings , I have discussed the interaction between fraud and contracts on many occasions . Recently, I got to put my advice into action. I am counsel for the plaintiff in the matter of Environmental Staffing Acquisition Corp. v. Beamon, et. al. in the Portsmouth, VA Circuit Court...

Good Deeds Still Going Punished? (Dragas Part III)

If you recall, a bit over a year ago I posted regarding the Builders Mut. Ins. Co. v. Dragas Management Corp. litigation in the Eastern District of Virginia federal court. [ enhanced version available to lexis.com subscribers ] Back in May of 2010, the Court dismissed a suit by a contractor that voluntarily...

President of Building Company Liable for Negligence Despite Acting on Behalf of Company

The January 2011 North Carolina Court of Appeals case of White v. Collins Bldg., Inc. involved purchasers of beach house who filed a negligence claim against several defendants, including the building company's president and sole shareholder, Edwin E. Collins, Jr., alleging that he failed...

Bullivant Houser Bailey PC: Consumer, But Not Unlicensed Contractor, May Enforce Arbitration Clause

By Ronald L. Richman California law prohibits unlicensed contractors from enforcing claims to payment for work done while unlicensed. But, the customer can seek to enforce the construction contract against the unlicensed contractor. In this instance, a California Court of Appeal decided that...

Reckless Disregard Is. . . Well. . .Reckless

Punitive damages are hard to come by in construction law cases. This is because almost all construction contract cases are exactly that: contract cases . Between the economic loss rule and the Virginia Courts' almost (though not completely) impregnable wall between tort and contract , punitive...

Construction Wrap-Up Policies: Analysis of Selected Coverage Issues

To reduce project costs and avoid litigation many owners, developers, general contractors and construction managers have obtained wrap-up insurance programs. In this Analysis, Ruth Kochenderfer and James P. Bobotek discuss the programs' mechanics, advantages/disadvantages and coverage issues...

Sometimes You Survive Without Written Change Orders (But I Wouldn’t Recommend It)

As anyone who reads Construction Law Musings on even an irregular basis knows, I am a major advocate of getting everything ( especially change orders ) in writing. This is particularly true where your construction contract documents require written change orders. In other words, you should make your...

Dealing with Conflicting Design Obligations: CCL Construction Consultants, Inc., on Doornbos Heating & A/C, Inc. v. Schlenker

Doornbos Heating & Air Conditioning, Inc. v. Schlenker , 403 Ill. App. 3d 468, 932 N.E.2d 1073, 2010 Ill. App. LEXIS 704 (Ill. App. Ct. 1st Dist. 2010) [ enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law ] is an important decision because...

Arbitrators can decide validity of arbitration provision in construction contracts

By Edward Lozowicki and Robert Sturgeon Binding arbitration of construction disputes is frequently required by standard industry contracts. For example, the contract forms published by the American Institute of Architects either require or provide an option for arbitration under the Construction Industry...

Another Reason to be Careful Before Walking

We have discussed issues that may arise in the context of a residential construction project. Because most homeowners are not sophisticated in the ways of construction (and really shouldn't be) expectations are key and keeping your nose clean as a contractor is key. Courts in some instances...

Williams Mullen: Another Reminder on Change Orders: “Don’t Worry” About Payment for Extra Work Is Not Enforceable

BY: WILLIAM R. MAUCK, JR. The importance of following change order provisions in a construction contract was emphasized yet again in a recent federal court decision: Carolina Conduit Systems, Inc. v. MasTec North America, Inc . [ enhanced version available to lexis.com subscribers ] In this...

Michael T. Callahan on Greg Opinski Construction, Inc. v. City of Oakdale

In this Analysis, Michael T. Callahan discusses Greg Opinski Construction, Inc. v. City of Oakdale , 199 Cal. App. 4th 1107 (Cal. App. 5th Dist. 2011) [ enhanced version available to lexis.com subscribers ], in which the California Court of Appeal held that a contractor could not defend an owner's...

Michael T. Callahan on American Underground Eng'g, Inc. v. City of Syracuse

In this Analysis, Michael T. Callahan discusses Am. Underground Eng'g, Inc. v. City of Syracuse, 2011 U.S. Dist. LEXIS 117102 (N.D.N.Y Oct. 7, 2011) [ enhanced version available to lexis.com subscribers ], finding that a contractor presented no proof how its home office overhead was affected by...

Sheppard Mullin Richter & Hampton LLP: Court Broadly Defines Subcontractors Who Qualify For Payment Bond Claims

By Edward Lozowicki and Scott Vignos Can a supplier of construction materials be considered a "subcontractor" for purposes of enforcing its claim on a public works payment bond? The answer is "yes" according to a recent decision of the California Court of Appeal. In Eggers Industries...

In Any Construction Lawsuit, Be Sure to Name the Right People

The title of this post may seem obvious. Of course you need to name the right people. “Why even write about this?” you may ask yourself. The answer to this question is that the list of all of the parties necessary to a successful lawsuit may not be so obvious. One example is the case of...

Liquidated Damages In Construction Disputes – Carefully Crafted to Avoid Litigation

BY: ROBERT E. TRAVERS, IV Necessity may be the mother of invention, but uncertainty is certainly the mother of litigation. In the context of construction contracts, the uncertainty that most often results in an expensive trial is not whether a party breached an agreement; rather it is the amount of...

Construction Claims- Who Do You Sue?

So, here you are, a general contractor, subcontractor or supplier and you haven’t been paid. You know you should be paid and are at the end of your rope after what seem like hundreds of demands by phone and e-mail. You’re ready to file a claim and try and get paid. Simple enough, right? Not...