Competent, Substantial Evidence Carries Day in Bench Trial
February 26, 2024 —
David Adelstein - Florida Construction Legal UpdatesA number of construction disputes, if tried, are tried through a bench trial meaning the judge is serving in the role of the jury in the construction trial. In a bench trial, two points are important. First, “the factual findings of the judge are entitled to the weight of a jury verdict.” Q.G.S. Development, Inc. v. National Lining Systems, Inc., 2024 WL 357984 (Fla. 3d DCA 2024) (internal quotation and citation omitted). Second, “[t]he appellate court is only authorized to reverse if such findings are not supported by competent, substantial evidence.” Id. These two points need to be appreciated when participating in any construction dispute that will be resolved through a bench trial.
A recent construction dispute highlights these two points. In Q.G.S. Development, a contractor was hired to refurbish a golf course which included constructing a lake. The contractor was going to construct the lake, prepare the subgrade, perform dewatering, and it hired a subcontractor to install a reservoir liner at the bottom of the lake.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Best Lawyers Recognizes Hundreds of Lewis Brisbois Attorneys, Honors Four Partners as ‘Lawyers of the Year’
October 16, 2023 —
Lewis Brisbois(August 17, 2023) – Best Lawyers has selected 172 Lewis Brisbois attorneys across 46 offices for its 30th edition of
The Best Lawyers in America. It has also recognized four Lewis Brisbois partners on its "Lawyers of the Year" list: Akron Managing Partner David Kern (Mergers and Acquisitions Law); Newark Partner Meredith Kaplan Stoma (Professional Malpractice Law - Defendants); Philadelphia Partner Steven D. Urgo (Litigation – Insurance); and Roanoke Managing Partner John T. Jessee (Medical Malpractice Law – Defendants).
Please join us in congratulating the following attorneys on their Best Lawyers recognition! You can see the full list of attorneys named to
Best Lawyers' Ones to Watch in America here.
Akron, OH
- Partner John F. Hill - Bet-the-Company Litigation, Commercial Litigation, Legal Malpractice Law – Defendants, and Personal Injury Litigation - Plaintiffs
- Partner Kerri Keller - Commercial Litigation
- Managing Partner David Kern - Corporate Law, Mergers and Acquisitions Law, Tax Law, and Trusts and Estates
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Lewis Brisbois
The Increasing Trend of Caps in Construction Contracts and Negotiating Them
November 27, 2023 —
Jarred Trauth - ConsensusDocsRisks are inherent in every construction project and all parties involved face them: owners, designers, general contractors/builders, subcontractors, suppliers…. Equitably allocating such risks is one of the most important and most negotiated areas of any construction related contract. Limitations of liability provisions are key to risk allocation. These provisions include no damage for delay provisions and caps on delay damages, warranty limitations and exclusions, indemnity limitations, and consequential damage waivers. Another, and the focus of this article, is a liability cap fixing the total amount of damages for which a party may be liable under the contract (the “Liability Cap”). Liability Caps have become more and more common in construction and construction related contracts, including major component supply agreements and design agreements.
This article will discuss Liability Caps generally and considerations of an owner or contractor negotiating them, including carve-outs (i.e. exceptions) to them.
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Jarred Trauth, Jones Walker LLPMr. Trauth may be contacted at
jtrauth@joneswalker.com
The Black Woman Architect Who Hopes to Change the Face of Design in America
January 16, 2024 —
Kriston Capps - BloombergIn the US, only 2% of licensed architects are Black. Less than a single percent are Black women. Architects tend to be older, White and men, as reflected by the leadership of both firms and professional groups. So when the American Institute of Architects inaugurated its 100th president, Kimberly Dowdell — the first Black woman to lead the association, and at 40 the youngest architect to ever hold the post — it suggested an optimistic change of course.
A principal and director of strategic relationships for the global design firm HOK, Dowdell comes to her new position from a leadership background. She has served as the president of the National Organization of Minority Architects and sits on the board of the Chicago Central Area Committee and Chicago Architecture Biennial, among other groups. She is the winner of both the AIA’s Young Architects Award and the Women in Architecture award from
Architectural Record.
Dowdell spoke to Bloomberg CityLab about her goals as AIA president, the challenges facing the field and why every city should hire its own chief architect.
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Kriston Capps, Bloomberg
Reasonable Expectations – Pennsylvania’s Case by Case Approach to the Sutton Rule
February 12, 2024 —
Melissa Kenney - The Subrogation StrategistIn Mutual Benefit Ins. Co. a/s/o Michael Sacks v. Koser, No. 1340 MDA 2023, 2023 Pa. Super. LEXIS 574, 2023 PA Super 252 (Mutual Benefit), the Superior Court of Pennsylvania discussed whether a landlord’s property insurer could file a subrogation action against tenants that had negligently damaged the landlord’s property. Despite there being more than one clause in the lease holding the tenants liable for the damages, the court held that because there was a provision requiring the landlord, not the tenants, to insure the leased building, the insurer could not subrogate against the tenants.
In Pennsylvania, a tenant’s liability for damage to a leased premises in a subrogation action brought by a landlord’s insurer is determined by the reasonable expectation of the parties to the lease agreement. Under this approach, to determine if subrogation is permitted, the court considers the circumstances of the case and examines the terms of the lease agreement.
In Mutual Benefit, the tenants leased and resided in a residential home pursuant to a lease agreement. The lease specifically addressed insurance, stating that landlord was responsible for obtaining insurance on the dwelling and the landlord’s personal property, and tenants were encouraged to procure separate insurance for their personal property. The lease also addressed liability for damage to the leased property, stating generally that the tenants were responsible for damage caused by the tenants’ negligence.
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Melissa Kenney, White and WilliamsMs. Kenney may be contacted at
kenneyme@whiteandwilliams.com
It Pays to Review the ‘Review the Contract Documents’ Clause Before You Sign the Contract
March 11, 2024 —
Alan Winkler - ConsensusDocsIt is fairly common for a construction contract to include a provision requiring the contractor to perform some level of review of the plans and specifications and perhaps other contract documents as part of their responsibilities. Typically, this provision is found in a section of the contract on the contractor’s responsibilities, although it can be anywhere. Owners and contractors are, with reason, focused on three main issues in reviewing contracts: (1) price, costs, and payments, (2) time and scheduling, and (3) scope of the work. Eyes may glaze over the contractor’s responsibilities section. Not only does it seem to be boilerplate, but industry professionals know what a contractor is supposed to do; in a nutshell, build the project.
An old school type of contractor may regard this role as strictly following the plans and specifications, no matter what they provide. That could lead to a situation where construction comes to a complete stop because, for example, two elements are totally incompatible with each other. If that happens, the contractor would then turn to the owner and architect to ask for a corrective plan and instructions on how to proceed. That may also be accompanied by a request for more time and money while the problem is resolved. The ‘review the contract documents’ clause is designed to avoid this. It is intended to address an understanding that everyone makes mistakes, even architects and engineers whose job it is to design a buildable, functional project. The clause also addresses the understanding that a contractor is more than a rote implementer of plans and specifications because its expertise in building necessarily means the contractor has expertise in understanding the documents that define the construction and how things are put together.
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Alan Winkler, Peckar & Abramson, P.C.Mr. Winkler may be contacted at
awinkler@pecklaw.com
Why’d You Have To Say That?
October 09, 2023 —
Daniel Lund III - LexologyA surety seeking collateral from indemnitors filed suit in federal court in Louisiana pursuant to a forum selection clause in the indemnity agreement between the parties.
The indemnitors were being called upon to provide collateral as a result of defaults on two Louisiana Department of Transportation projects. Seeking to move the dispute to Louisiana state court from federal court, the indemnitors filed a forum non conveniens motion.
Among the arguments of the indemnitors removing the case out of federal court was the doctrine of “direct-benefits” estoppel – a policy which “‘holds a non-signatory to a clause in a contract if it “knowingly exploits the agreement” containing the clause.’ In re Lloyd's Reg. N. Am., Inc., 780 F.3d 283, 291 (5th Cir. 2015) (quoting Bridas S.A.P.I.C. v. Gov't of Turkmenistan, 345 F.3d 347, 361-62 (5th Cir. 2003)).”
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
Tenth Circuit Reverses District Court's Ruling that Contractor Entitled to a Defense
October 24, 2023 —
Tred R. Eyerly - Insurance Law HawaiiAfter the district court granted the insured contractor's motion for judgment on the pleadings on the duty to defend, the Tenth Circuit found there was no coverage and reversed. Owners Ins. Co. v. Greenhalgh Planning & Development, Inc., 2023 U.S. App. LEXIS 20137 (10th Cir. Aug. 4, 2023).
Greenhalgh remodeled a house and barn for Michelle and Steven Pickens. After completion of the project, the Pickens sold the property to Teague and Michelle Cowley. The Cowleys later sued the Pickenses asserting various fraud and breach of contract claims. The complaint alleged that the Pickenses misled them into reasonably believing that the barn was a habitable structure, even though it did not qualify as such under the applicable building code because it lacked a fire-sprinkler system.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com