Catagory:The Americas

By Richard Paciaroni, K&L Gates, Pittsburgh

In April, I participated as a panelist for a program titled Failure is an Option, which addressed best practices for developing a construction project.  Being the only lawyer on the panel among seasoned construction professionals, I was prepared to tackle the topic from a lawyer’s perspective.  I was told to expect the following questions: 1) Is there such a thing as a “good” construction contract?; 2) Can a “good” contract increase the likelihood of success?; and 3) What are the attributes of a “good” construction contract?

After nearly 30 years of handling construction claims and disputes, I felt that I was qualified to address these points.  Specifically, my answers to the first two questions were “yes.”  A good analogy that I can offer is that a “good” construction contract is like a well-constructed ship—it will get you safely through rough water.  Conversely, a “bad” construction contract is analogous to a poorly constructed ship—in rough water, it is likely to capsize, resulting in disaster.

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This article was originally published in the Summer, 2013 edition of The Voice—The Official Magazine of the Construction Users Roundtable.

By: Frederic J. Giordano & Ashley L. Turner, K&L Gates, Newark

Jurisdictions are split over whether defective construction can give rise to an occurrence under commercial general liability insurance policies.  Some jurisdictions have held that faulty workmanship cannot constitute the basis for an occurrence because it is not the type of risk intended to be insured by commercial general liability policies or lacks the fortuity necessary to be considered an accident.  In contrast, other jurisdictions have held that faulty workmanship may constitute the basis for an occurrence because it is unintended.  The Connecticut Supreme Court joined those courts holding that faulty workmanship may give rise to an occurrence in the recent decision Capstone Building Corp. v. American Motorists Ins. Co., SC 18886, 2013 WL 2396276 (Conn. June 11, 2013) (“Capstone”).

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By Andrew R. Stanton, Frederic J. Giordano, David R. Osipovich

Introduction

Construction contractors and subcontractors, as well as commercial policyholders generally, will wish to take note of a recent Supreme Court of Minnesota decision that lends insight into the scope of coverage provided by additional insured endorsements in insurance policies, the scope of protection afforded by indemnity provisions in construction contracts, and the reach of anti-indemnity state statutes.

In Eng’g & Const. Innovations, Inc. v. L.H. Bolduc Co., Inc., 825 N.W.2d 695 (Minn. 2013), the Court held that an endorsement making a contractor an additional insured on its subcontractor’s general liability policy only to the extent that damage was caused by the subcontractor’s acts or omissions, and which further expressly stated that the contractor did not qualify as an additional insured with respect to its independent acts or omissions, provides additional insured coverage only for the contractor’s vicarious liability for the subcontractor’s negligence.  Because a jury found that the subcontractor was not negligent, the Supreme Court held that no basis existed to hold the contractor vicariously liable and that the contractor did not qualify as an additional insured on the subcontractor’s policy.

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