Construction Law – Page 20 – Legal issues, news, and regulations concerning the construction industry

Toward a Unified Theory of Damages in Construction Cases: Part III — Damages in Terminations for Convenience

Aug 28 2012

I. Introduction

This is the third installment in a series of articles aimed at bringing some clarity to the disparate approaches to damages practitioners often confront in construction cases. Some of the most challenging damages questions are presented in termination disputes. The subject of damages in terminations is simply too complex for one article of this size, and therefore the damages series will address termination damages in three installments. This installment addresses damages in termination for convenience situations. Later installments will address damages in termination for default situations and special damages issues when design contracts are terminated.

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Reprinted with permission from the Journal of the American College of Construction Lawyers, Volume 6, Number 2, Summer 2012, © 2012 Thomson Reuters. Further reproduction without permission of the publisher is prohibited. For additional information about this publication, please visit west.thomson.com.

Pennsylvania Takes an Important Step Forward on Public-Private Partnerships

Jul 16 2012

By: Andrew L. Swope & R. Timothy Weston, K&L Gates, Harrisburg

On July 5, 2012, Pennsylvania Governor Tom Corbett approved a key first step toward modernizing the procurement of infrastructure projects in Pennsylvania by signing legislation that expressly authorizes public-private partnerships (P3) for road, transit and other transportation related projects. The Pennsylvania legislation focuses on transportation projects for both new and existing infrastructure. The General Assembly viewed the P3 legislation as a means to fund and promote transportation projects to help provide the estimated $3.5 billion per year additional investment needed for transportation infrastructure without relying exclusively on tax revenue to fund those projects. Whether Pennsylvania’s P3 legislation stimulates new transportation infrastructure projects remains to be seen, but the law provides some interesting new options to private and public parties seeking to develop transportation infrastructure in Pennsylvania.

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Washington Court of Appeals Holds that Summary Judgment is Proper if the Non-Moving Party’s Expert Opinion is Inadmissible Under Frye

Jun 27 2012

Lake Chelan Shores Homeowners Ass’n v. St. Paul Fire & Marine Ins. Co., 167 Wn. App. 28, 272 P.3d 249 (Wash. Ct. App. 2011)

Although summary judgment is improper when opposing experts present conflicting testimony on a genuine issue of material fact, this case demonstrates that a trial court can grant summary judgment if the non-moving party’s expert testimony is inadmissible under the Frye standard.

In this case, a homeowners association sought insurance coverage when it discovered that its condominiums had been damaged by rot. The association offered the expert testimony in question as the only proof that the building damage should be covered by the insurance policy. The Washington Court of Appeals, Division I, held that summary judgment was proper because, although the opposing experts’ testimonies did conflict, the association did not offer admissible testimony to create a genuine issue of material fact regarding the source of the building damage.

K&L Gates’ Arbitration World, June 2012

Jun 21 2012

From the Editors

Welcome to the 19th edition of Arbitration World, a publication from K&L Gates’ Arbitration Group that highlights significant developments and issues in international and domestic arbitration for executives and in-house counsel with responsibility for dispute resolution.

We hope you find this edition of Arbitration World of interest, and we welcome any feedback (email ian.meredith@klgates.com or peter.morton@klgates.com).

In this Issue:

News from around the World
World Investment Treaty Arbitration Update
U.S. Supreme Court Takes Another Look at the Enforceability of Pre-Dispute Arbitration Clauses
The “SCC Emergency Arbitrator”: First Experiences with the Pre-Arbitral Interim Relief Procedure
Guidance from the U.S. Second Circuit on Application of the Evident Partiality Standard
Early Case Assessment: A Litigation Arrow in an Arbitration Quiver
English Court Decides that Arbitration Agreement is Governed by Law of Seat of Arbitration and Prevails over Exclusive Jurisdiction Clause
International Arbitration: Developments from Singapore
Unsolved Mystery: Colombia’s International Arbitration Law
Who Qualifies as an Investor? A Primer on Protecting Foreign Investments (Part 1)
Developments in International Arbitration in Mauritius
The Chamber of Arbitration of Milan and the “Mediterranean Project”
Eurozone Exits: Possible Impact on Commercial Contracts
U.S. Ninth Circuit to Consider Who Decides Arbitrability When Arbitration Clause Incorporates UNCITRAL Rules But Includes Carve-Outs

To view the entire June 2012 edition, click here.

The Perils of Settlement Releases on Subsequent Litigation of Assigned Claims

Jun 19 2012

A&T Siding v. Capitol Specialty Ins., No. 3:10-cv-980-AC, 2012 WL 707100 (D. Or. Mar. 1, 2012)

A siding subcontractor sued the CGL insurance carrier to recover amounts claimed due under a policy that was for the benefit of a condominium homeowners association. This lawsuit arose when a general contractor was sued by the association for construction defects and the general contractor in-turn sued the subcontractor for negligent construction. The subcontractor tendered its defense to Capitol and Zurich, each of which initially participated in the defense. Capitol subsequently withdrew its defense because it decided the alleged defects and damage took place prior to inception of its policy.

Qui Tam Relators for False Claim Actions Must Plead Sufficient Details to Withstand Motions to Dismiss

Jun 19 2012

U.S. v. Hooker Creek Asphalt, No. 6:08-cv-6307-HO, 2012 WL 913229 (D. Or. Mar. 16, 2012)

A qui tam action brought against contractors for alleged violation of the U.S. False Claims Act arising from a road construction contract was dismissed with prejudice. The qui tam relator’s complaints (following a series of amendments and, with the court’s direction, the inclusion of additional necessary pleading elements) were found lacking as to personal knowledge and failed to provide the “who, what, when, where and how”. The relator relied on “representative example type pleading” which lacked required particularity. The court found that permission to allow further amended complaints would be futile.

Buyer Beware: New Jersey’s Appellate Division Confirms that Exclusion for Bodily Injury to “An Employee of Any Insured” Bars Coverage for Third-Party Over Claim Against Additional Insured

Jun 11 2012

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

Parties who require additional insured coverage from their contractors usually expect the coverage to extend to third-party over claims, particularly with respect to bodily injury claims by employees of contractors. Those with such contracts covered by New Jersey law, however, may want to take special notice of a recent ruling of the New Jersey Appellate Division, which suggests that their expectations may be frustrated unless they take particular care in reviewing the policies at issue.

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Violation of NY Lien Law Provision Does Not Discharge Surety’s Obligation Under Performance Bond

Jun 11 2012

Mount Vernon City School Dist. v. Nova Cas. Co., 19 N.Y.3d 28 (N.Y. Ct. App. 2012)

On April 3, 2012, the New York Court of Appeals held that a compensated surety cannot rely on a violation of Article 3-A of the Lien law to discharge its obligations under a performance bond. The Mount Vernon City School District (“Plaintiff”) hired a contractor who obtained a performance bond in Plaintiff’s name from Nova Casualty Company (“Nova”), a compensated surety, securing his obligation under the contract. After he defaulted and Nova refused to pay additional funds to complete the project, Plaintiff sued Nova for breach of contract. Nova moved for summary judgment claiming that Plaintiff violated Article 3-A of New York Lien Law when, per the contractor’s request, Plaintiff remitted $214,000 of his fee to the Department of Labor (“DOL”) thereby discharging Nova’s duty to perform.

New Jersey Court Clarifies Trigger Dates for Statute of Repose in Construction Defect Actions

May 30 2012

New Jersey v. Perini Corp., 425 N.J. Super. 62 (N.J. Super. Ct. App. Div. 2012),

In this case, a New Jersey appellate panel clarified the trigger date for the ten-year statute of repose for construction litigation, N.J.S.A. 2A:14-1.1. The Court held that the statute of repose is triggered upon substantial completion of the project, however, the Court recognized that there can be separate trigger dates for subcontractors that have substantially completed all of their work on the project prior to the completion of the project as a whole. For these subcontractors, the Court held that the statute of repose “runs from the completion of that contractor’s entire work on the ‘improvement,’ not from discrete tasks” performed by the subcontractor. New Jersey, 2012 WL 1057939 at *6.

K&L Gates’ Arbitration World, March 2012

May 11 2012

Emerging Markets Special Edition

Welcome to the 18th edition of Arbitration World, a publication from K&L Gates’ Arbitration Group. This special edition focuses on issues and recent developments in emerging markets. We also include our usual round-up of news items in international commercial arbitration and investment treaty arbitration.

We hope you find this edition of Arbitration World of interest, and we welcome any
feedback (email ian.meredith@klgates.com or peter.morton@klgates.com).

In this issue:

News from around the World
World Investment Treaty Arbitration Update
Developments in Indian Arbitration
Harmonizing Arbitration in China with International Best Practice
Arbitration in Ukraine – Moving Forward
Recent Developments on Arbitrability in Russia
The Arbitration Landscape in Latin America

View the entire March 2012 edition here.