Think Before you Execute that Release – the Language in the Release Matters!
June 17, 2024 —
David Adelstein - Florida Construction Legal UpdatesIf you execute a release in exchange for payment or other consideration, remember the language in the release means something. THE RELEASE LANGUAGE MATTERS! And the meaning in the release may be way more than you intended so please make sure you truly digest and consider release language before executing.
This sentiment could not be truer than in the 2009 decision Bell BCI Company v. United States, 570 F.3d 1337 (Fed. Cir. 2009). In this case, a contractor entered into a modification (change order) with the government. The modification included the following language:
increase the contract amount by $2,296,963 … as full and equitable adjustment for the remaining direct and indirect costs of the Floor 4 Fit-out (EWO 240–R1) and full and equitable adjustment for all delays resulting from any and all Government changes transmitted to the Contractor on or before August 31, 2000.
Read the full story...Reprinted courtesy of
David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Insured Fails to Provide Adequate Proof of Water Damage Through Roof
December 10, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe federal district court granted the insurer's motion for summary judgment due on the insured's claims for water damage to a church. Unity Church of God in Christ of York v. Church Mutual Ins. Co., 2024 U.S. Dist. LEXIS 163204 (M.D. Pa. Sept. 11, 2024).
Unity Church alleged that it suffered a sudden and accidental direct physical loss to its church. Wind damage to the roof of the church allowed rainwater to leak into the sanctuary of the church. Notice was given to Church Mutual Insurance Company, but coverage was denied.
Unity Church filed suit alleging breach of contract. Church Mutual answered and asserted a counterclaim for a declaratory judgment that the water damage to the church was outside the policy's coverage because the damage was caused by rain. Church Mutual filed for summary judgment.
Read the full story...Reprinted courtesy of
Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
What Every Project Participant Needs to Know About Delay Claims
August 05, 2024 —
Andrew G. Vicknair - The Dispute ResolverA “delay” on a construction project is defined as the stretching out of the time for completion of certain key milestone scopes of work which can impact the completion date of an entire project, due to some circumstances or events that were not reasonably anticipated when the project began. 2 Construction Law ¶ 6.01 (Matthew Bender, 2024). While delays can be caused by any number of events, the most common are defective plans and specifications; design changes; severe weather and other, similar unforeseeable events; unforeseen or differing site conditions; unavailability of materials or labor; labor inefficiencies or stoppages; contractor negligence; and owner influences, including construction changes or outright interference by the owner or its agents. If the project schedule is not recovered following a delay, then the project schedule will likely be extended, resulting in an increase in the contractor’s costs of performance. A contractor that has experienced a delay on a project can take certain actions to pursue recovery of any damages the contractor may have incurred. However, to do so it is important to understand the different types of delays and the methods for establishing the delays.
I. Types of Delays
Delays may be categorized as (1) critical versus non-critical delays, (2) excusable versus non-excusable delays, and (3) compensable versus non-compensable delays. A critical delay is a delay that affects the project completion date and delays the entire project. In essence, a critical delay is one that will extend the critical path of a project. A non-critical delay is a delay that has no effect on the project’s critical path. Courts have recognized that delays to work not on the critical path will generally not delay the completion of a project. G.M. Shupe, Inc. v U.S., 5 Cl. Ct. 662, 728 (1984). Such a non-critical delay may affect the completion of certain activities, but does not affect the completion date of the entire project. In order for a delay to provide the basis for a claim for additional time or money, the delay must impact critical path activities on the project schedule.
Read the full story...Reprinted courtesy of
Andrew G. Vicknair, D'Arcy Vicknair, LLCMr. Vicknair may be contacted at
agv@darcyvicknair.com
Developers Can Tap into DOE’s $400 Million for Remote and Rural Clean Energy Projects
December 10, 2024 —
Robert A. James, Elina Teplinsky, Alicia M. McKnight, Sidney L. Fowler & Clarence H. Tolliver - Gravel2Gavel BlogOn October 3, 2024, the Department of Energy Office of Clean Energy Demonstrations announced a Notice of Funding Opportunity (NOFO) to fund up to $400 million for clean energy projects in rural and remote areas via its Energy Improvements in Rural or Remote Areas program. The NOFO will provide awards ranging from $2 million – $50 million, with plans to fund 20 to 50 projects. Awards will require a non-federal cost share, range across four topic areas, and target projects in rural and remote communities with populations of 10,000 people or fewer.
Eligibility
Applications are open to a wide range of entities, including for-profit and nonprofit organizations, state and local governmental entities, Indian Tribes and Tribal organizations, institutions of higher education, rural electric cooperatives, incorporated and unincorporated consortia, farming associations and cooperatives, and labor unions. Generally applicants must be U.S. entities, but foreign entities may be allowed to participate in limited circumstances. Applicants must identify at least one area in the U.S. or U.S. territories with a population of up to 10,000 people which will benefit from the proposal.
Reprinted courtesy of
Robert A. James, Pillsbury,
Elina Teplinsky, Pillsbury,
Alicia M. McKnight, Pillsbury,
Sidney L. Fowler, Pillsbury and
Clarence H. Tolliver, Pillsbury
Mr. James may be contacted at rob.james@pillsburylaw.com
Ms. Teplinsky may be contacted at elina.teplinsky@pillsburylaw.com
Ms. McKnight may be contacted at alicia.mcknight@pillsburylaw.com
Mr. Fowler may be contacted at sidney.fowler@pillsburylaw.com
Mr. Tolliver may be contacted at clarence.tolliver@pillsburylaw.com
Read the full story...
Protecting Expert Opinions: Lessons Regarding Attorney-Client Privilege and Expert Retention in Construction Litigation
August 19, 2024 —
David McLain - Higgins, Hopkins, McLain & Roswell, LLCThe Hill Hotel Owner LLC v. Hanover Insurance Company case has garnered attention due to its implications on the scope of attorney-client privilege in construction litigation. This blog post delves into the project’s background, the ensuing litigation, and the intricate work undertaken by attorneys and experts, highlighting the potential pitfalls associated with assumptions about privilege protections.
Background of the Project
Hill Hotel Owner LLC initiated a construction project in Boulder, Colorado, which included building a basement-level parking garage with an 18” thick concrete slab floor. The project utilized “void form,” a cardboard underlayment intended to create a gap between the foundation and the underlying soil. Unfortunately, the void form became wet and collapsed under the weight of the fresh concrete, causing considerable damage, and necessitating millions of dollars in remediation costs.
Read the full story...Reprinted courtesy of
David McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
Crisis Averted! Pennsylvania Supreme Court Joins Other Courts in Finding that Covid-19 Presents No Physical Loss or Damage for Businesses
October 21, 2024 —
Edward M. Koch & Marc L. Penchansky - White and Williams LLPSeeking to find some relief from business losses experienced during the COVID-19 pandemic, many businesses turned to their property insurers for coverage for their lost income. A clear national trend emerged among courts deciding the issue, as most businesses could not establish coverage because they had not experienced a “direct physical loss of or damage to their covered property” as required by most policies.
While this legal question may have become an afterthought for many attorneys, the question remained an open one in Pennsylvania while the Pennsylvania Supreme Court considered two contradictory holdings issued in the Superior Court on this topic. Compare Macmiles, LLC v. Erie Ins. Exch., 286 A.3d 331 (Pa. Super. 2022) (holding there was no coverage for loss of use of a commercial property unaccompanied by any physical alteration or other physical condition that rendered the property unusable or uninhabitable) with Ungarean v. CNA, 286 A.3d 353 (Pa. Super. 2022) (holding that the policy at issue was ambiguous and therefore the policy covered the insured for COVID-related business losses). Last week, the Supreme Court considered the Superior Court’s holdings in Macmiles and Ungarean and held, at long last, that COVID-19 did not cause a direct physical loss of or damage to covered property.
Reprinted courtesy of
Edward M. Koch, White and Williams LLP and
Marc L. Penchansky, White and Williams LLP
Mr. Koch may be contacted at koche@whiteandwilliams.com
Mr. Penchansky may be contacted at penchanskym@whiteandwilliams.com
Read the full story...
Real Estate & Construction News Roundup (6/26/24) – Construction Growth in Office and Data Center Sectors, Slight Ease in Consumer Price Index and Increased Premiums for Commercial Buildings
July 22, 2024 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, U.S. interest rates remain uncertain, construction firms continue to use artificial intelligence, New York City updates commercial zoning regulations, and more!
- According to analysts, high vacancy rates and declining rents have hurt San Francisco’s office market so badly that it could take almost 20 years to recover. (Eric McConnell, Yahoo)
- The New York City Council approved updated commercial zoning regulations that expand where businesses can be located in the city, more than double the space for small-scale clean manufacturing, and enable adaptive reuse projects involving existing buildings. (Joe Burns, Construction Dive)
- The insurance industry is responding to the proliferation of extreme weather events and the risks associated with operating commercial buildings in vulnerable areas by increasing premiums. (Renea Burns, Tim Coy, Niall Williams, Deloitte)
Read the full story...Reprinted courtesy of
Pillsbury's Construction & Real Estate Law Team
Recovering Time and Costs from Hurricane Helene: Force Majeure Solutions for Contractors
November 18, 2024 —
Matthew DeVries - Best Practices Construction LawWhen Hurricane Helene struck North Carolina, it caused severe disruptions to construction projects across the state. Baxter International’s North Cove facility in Marion, N.C., was completely shut down after floodwaters damaged the site and bridges leading to it. Elsewhere, landslides and floods wiped out large sections of Interstate 40, making transportation of materials and equipment nearly impossible. Many contractors in western North Carolina found their projects halted, and their schedules thrown off by this force majeure event.
In situations like these, contractors and subcontractor need a plan to mitigate the impact of such natural disasters on their projects. Here are five practical tips to help you secure time extensions and/or compensation for delays:
1. Include a Robust Force Majeure Clause in Your Contract
When disaster strikes, your contract is your first line of defense. A well-drafted force majeure clause can make the difference between bearing the costs yourself and getting an extension or compensation. The clause should clearly list specific events such as hurricanes, floods, and road closures as qualifying force majeure events.
Read the full story...Reprinted courtesy of
Matthew DeVries, BuchalterMr. DeVries may be contacted at
mdevries@buchalter.com
