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DIRECTORY AND CAPABILITIES

Are Construction Contract Limitation of Liability Clauses on the Way Out in Virginia?

March 11, 2024 — Christopher G. Hill - Construction Law Musings
Remember BAE Systems and Fluor? This post is the third here at Construction Law Musings relating to this case which is a seemingly never-ending source for content. In the prior post discussing this case, the Court found that Va. Code 1-4.1:1 which bars waiver of a right to payment before work is performed did not apply because Fluor had provided work before execution of the contract or any change orders. In the most recent opinion in this long-running litigation, and after a motion to reconsider by Fluor that was granted, the Court re-examined this finding along with the contractual language found in the Limitation of Damages (LOD) clause and came to the opposite conclusion regarding certain change orders that remained unpaid by BAE. The Court first looked to the language of the contract itself and specifically the language in the LOD provision that states “Except as otherwise provided in this Subcontract.” The Court then looked at the change order provision and its typical equitable adjustment language and the mandatory nature of the equitable adjustment language. The Court found that the LOD provisions did not apply to change orders both because price increases due to change orders are not “damages” and because of the exception language in the LOD provision itself. Read the full story...
Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Traub Lieberman Partner Kathryn Keller and Associate Steven Hollis Secure Final Summary Judgment in Favor of Homeowner’s Insurance Company

April 02, 2024 — Kathryn Keller & Steven A. Hollis - Traub Lieberman
Traub Lieberman Partner Kathryn Keller and Associate Steven Hollis obtained summary judgment on behalf of a major homeowners’ insurer in a breach of contract action in the Ninth Judicial Circuit in and for Osceola County, Florida. The underlying claim involved a water loss in a bathroom of the Plaintiff’s property allegedly resulting in substantial damage to the home. The claim had been reported by Plaintiff’s counsel. The Plaintiff had retained counsel and two vendors before giving notice to the insurer. In addition, the insurer’s field adjuster was not provided the opportunity to inspect the plumbing parts that had been allegedly damaged. Specifically, the drainage system had been completely removed and replaced. The insurer retained an engineer, who concluded that the removal of the original plumbing components hindered the ability of the engineer to determine their conditions prior to removal. Meanwhile, the surface conditions of the white PVC pipe appeared bright and shiny as compared to other piping. The insured had also failed to provide a signed, sworn proof of loss within sixty days after the loss. Reprinted courtesy of Kathryn Keller, Traub Lieberman and Steven A. Hollis, Traub Lieberman Ms. Keller may be contacted at kkeller@tlsslaw.com Mr. Hollis may be contacted at shollis@tlsslaw.com Read the full story...

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Traub Lieberman Partner Lisa M. Rolle Wins Summary Judgment in Favor of Third-Party Defendant

May 06, 2024 — Traub Lieberman
Traub Lieberman Partner Lisa M. Rolle won summary judgment in favor of Third-Party Defendant, a general contracting company (the “Contracting Company”), in a personal injury action brought in Suffolk County. In the underlying matter, the Plaintiff—an employee of the Contracting Company—alleged that they sustained injuries from an incident which occurred when they were struck by a skid-steer loader owned by the Co-Defendant masonry company (the “Masonry Company”) and operated by the president and owner of the Co-Defendant/Third-Party Plaintiff construction company (the “Construction Company”). The Plaintiff brought claims against the Defendant companies for common law negligence and violations of Labor Law § § 200, 240, and 241, as well as Industrial code (12 NYCRR) subpart 23-2. Reprinted courtesy of Lisa Rolle, Traub Lieberman Ms. Rolle may be contacted at lrolle@tlsslaw.com Read the full story...

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Be Sure to Bring Up Any Mechanic’s Lien Defenses Early and Often

November 27, 2023 — Christopher G. Hill - Construction Law Musings
As those of you who regularly read Musings are aware, mechanic’s liens are a big part of my law practice and a big issue here at this construction law blog. I’ve discussed the picky requirements of the mechanic’s lien statutes in Virginia and how the 90 and 150-day rules are strictly enforced. However, a recent case out of the City of Norfolk Virginia Circuit Court cautions that while failure to meet these strict requirements may invalidate a lien, it only does so if the owner or general contractor seeking to invalidate the lien argues the invalidity and/or presents evidence of that invalidity either pretrial or during trial. In Premier Restoration LLC v. Barnes, the Court considered the following facts. The defendant homeowners had a house fire and the resulting damage was the subject of an insurance claim that was paid and checks sent to the homeowners. Premier filed a mechanic’s lien in response to Barnes’s failure to pay for Premier’s restoration construction services after Barnes’s home was destroyed by fire. Premier seeks a decree to enforce the lien, asking the court to order the sale of Barnes’s property to recover its damages or, alternatively, a judgment in its favor. With the Complaint seeking enforcement of the lien and damages for breach of contract, and this is a key point, Premier provided a copy of the mechanic’s lien along with the affidavit that is part of the statutory form swearing that the Owner was justly indebted to Premiere. The homeowners filed a counterclaim for unfinished work, including unfinished punch list work. After a trial during which no evidence regarding either the timeliness of the lien recording or whether any of the work sought to be encompassed in the lien was performed outside of the statutory 150-day window was presented by either side, the defendants filed a post-trial motion seeking to invalidate the lien as including sums for work outside of the 150-day window. Read the full story...
Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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A Termination for Convenience Is Not a Termination for Default

April 22, 2024 — David Adelstein - Florida Construction Legal Updates
A termination for convenience is NOT a termination for default. They are NOT the same. They should NOT be treated as the same. I am a huge proponent of termination for convenience provisions because sometimes a party needs to be able to exercise a termination for convenience, but the termination is not one that rises to a basis for default. However, exercising a termination for convenience does not mean you get to go back in time and convert the termination for convenience into a termination for default. It does not work like that. Nor should it. An opinion out of the Civilian Board of Contract Appeals – Williams Building Company, Inc. v. Department of State, CBCA 7147, 2024 WL 1099788 (CBCA 2024 – demonstrates a fundamental distinction between a termination for convenience and a termination for default, i.e., that you don’t get to conjure up defaults when you exercise a termination for convenience:

Because a termination for convenience essentially turns a fixed-price construction contract into a cost-reimbursement contract, allowing the contractor to recover its incurred performance costs, the resolution of this appeal will involve identifying the total costs that [Contractor] incurred in performing this contract before [Government] terminated it for convenience. Since [Government] terminated the contract for convenience rather than for default, it no longer matters whether, in the past,[Contractor] acted intentionally in overstating the amount of its incurred costs or committed a contract breach. Ultimately, as permitted in response to a termination for convenience, [Contractor] will recover those allowable costs that [Contractor]establishes it incurred in performing the contract.

Williams Building Company, supra.

Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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To Ease Housing Crunch, Theme Parks Are Becoming Homebuilders

January 29, 2024 — Patrick Sisson - Bloomberg
For visitors, Universal Studios Florida offers a chance to visit a fantastical land full of wizards, Minions and various characters from NBC Universal’s many film and television properties. But for the roughly 28,000 men and women who work at the 840-acre theme park and resort complex in Orlando, the troubles of the real world — like the rising cost of housing — are not far away. Central Florida has seen some of the nation’s fastest pandemic-era rent increases, thanks to a confluence of job growth, migration and housing underproduction that has put a strain on residents. The average tenant in the region saw their monthly rent jump by $600 between early 2020 and early 2023. According to the National Low Income Housing Coalition, the Orlando-Kissimmee-Sanford metro area has one of the worst affordable housing shortages in the US, with only 15 available units for every 100 extremely low-income renter households. The dire need for workforce housing is behind the entertainment conglomerate’s latest project in Central Florida: a 1,000-unit mixed-use development, set to open in 2026, that promises to give tenants who work in the service industry a short commute to the constellation of tourist attractions and hotels nearby. To launch the project, Universal donated 20 acres of land adjacent to the Orange County convention center. Called Catchlight Crossings and built in partnership with local developer Wendover Housing Partners, the project broke ground in November. Read the full story...
Reprinted courtesy of Patrick Sisson, Bloomberg

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AGC’s 2024 Construction Outlook. Infrastructure is Bright but Office-Geddon is Not

February 12, 2024 — Garret Murai - California Construction Law Blog
The Associated General Contractors of America has issued its 2024 Construction Outlook. According to its survey of construction contractors throughout the United States, contractors have a mixed outlook for 2024 with firms predicting transitions in the demand for projects, the types of challenges they will face and technologies they plan on embracing. According to the survey, contractors continue to cope with significant labor shortages, the impact of higher interest rates and input costs and a supply chain which, while better than in past few years, is still far from normal. Of the 17 categories of construction types included in the survey, respondents expected a net positive growth in 14 of those categories, with infrastructure projects leading the net positive readings following the passage of the Infrastructure Bill in 2021, and commercial retail and office leading the net negative readings as a result of the continuing office-geddon: Read the full story...
Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Why Employees Are Taking Ownership of Their Architecture Firms

January 22, 2024 — Kriston Capps - Bloomberg
The architecture firm BNIM has always been a leader on sustainable design. In the late 1980s, principal emeritus Bob Berkebile was one of the first architects to push the industry to take the idea of green buildings seriously. Then-President Bill Clinton even recruited him to lead a climate-minded restoration of the White House. Berkebile and his Kansas City, Missouri–based firm — he’s the “B” in BNIM, alongside Tom Nelson, David Immenschuh and Steve McDowell — received top honors from the American Institute of Architects in 2011, among many other accolades. Now the firm behind such projects as the US Embassy expansion in Kampala, Uganda, and a proposed South Loop park to deck over a highway in downtown Kansas City hopes to stand out in another way. In October, BNIM announced its transition to an employee stock ownership plan, or ESOP. The firm is one of a handful in the industry to recently embrace the employee-ownership model, following similar moves in 2021 by SHoP Architects and Zaha Hadid Architects. Read the full story...
Reprinted courtesy of Kriston Capps, Bloomberg

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