Construction, USA updates

Batten down the hatches: tips for owners and contractors affected by Hurricanes Harvey and Irma
  • USA
  • 25 September 2017

Anyone watching what has happened recently in Houston and Florida will immediately think about the safety and wellbeing of those affected by Hurricanes Harvey and Irma. Once the aftermath of destruction is assessed, both areas and their residents will be looking at a long road to recovery. Among the many coming challenges, owners and contractors of existing projects must take steps to assess the effects and identify their contractual rights and obligations.

New York's scaffold law may not impose strict liability
  • USA
  • 26 June 2017

The construction industry has long accepted that the New York scaffold law imposes strict liability on construction contractors and property owners for injuries suffered by workers who fall or are hit by a falling object as a result of inadequate scaffolding or similar construction structures. A recent decision by the New York Court of Appeals indicates that this common understanding is wrong.

Third Circuit holds post-petition filing of New Jersey construction lien violates automatic stay
  • USA
  • 19 June 2017

The Third Circuit Court of Appeals recently filed an opinion regarding whether the filing of a mechanic's lien after the commencement of a bankruptcy case violated the automatic stay. Given the frequent involvement of many companies in Delaware bankruptcy cases, the Third Circuit's ruling is important.

Why understanding economic loss doctrine is critical for construction professionals
  • USA
  • 01 May 2017

The economic loss doctrine is widely misunderstood and often misapplied. At its most basic, the premise of the doctrine is that a party cannot recover purely economic losses in a tort action. While simple in theory, the economic loss doctrine has suffered from wide variations in application – for example, states are split about whether the economic loss doctrine bars third-party claims against design professionals.

Construction project documentation: explaining business records exception to the rule against hearsay
  • USA
  • 30 January 2017

Given the critical role of written documentation in resolving construction claims – whether inside or outside of the courtroom – it is essential that companies adequately train the individuals who create written documentation. Companies should also be aware of the best practices for generating and preserving construction records to avoid evidentiary challenges to company records if a construction claim is litigated.

Are you really an additional insured?
  • USA
  • 23 January 2017

A recent decision of the New York Supreme Court Appellate Division, First Department highlights that a party seeking coverage as an additional insured by virtue of a provision in a construction contract must carefully review both the contract and the insurance policies at issue to make sure that they work together to provide the coverage sought.

Mobile phones on construction sites: managing the hazards
  • USA
  • 31 October 2016

The use of mobile phones on construction sites can pose significant safety hazards, which are proving of considerable interest to the Occupational Safety and Health Administration (OSHA), law enforcement, insurers and potential civil litigants. As OSHA's enforcement in this regard is expected to have a significant effect on law enforcement, employers in the construction industry should take care to reduce their potential civil and criminal liabilities.

Enhanced OSHA liability: multi-employer worksites
  • USA
  • 26 September 2016

Under the Occupational Safety and Health Administration (OSHA), multi-employer worksites have come under increased scrutiny, particularly in the construction industry. OSHA will likely continue to enforce compliance with worksite safety and health laws and regulations more forcefully, and the newly invigorated multi-employer worksite policy will be another tool that OSHA employs in its mission.

Contractors facing government claims may need to submit contractor claim to perfect defences
  • USA
  • 18 July 2016

Construction contractors working under government contracts need to understand the complexities of the claims process under the Contract Disputes Act. A slew of recently decided cases have placed limitations on the landmark Maropakis decision, which illustrated the strict compliance requirements of the act. This confusing and evolving area is full of risk for the unwary government contractor.

California: prevailing wages paid to drivers delivering concrete to public works projects
  • USA
  • 11 July 2016

California has expanded the definition of public works requiring the payment of prevailing wages to include the hauling or delivery of ready-mixed concrete for a public works project. The law blurs the distinction between contractors and suppliers and attempts to expand the number of employees who are entitled to prevailing wages, which are generally higher than regular wages.

Tips for litigating construction disputes in Delaware
  • USA
  • 04 July 2016

While few construction disputes are heard in Delaware, there are some considerations that litigators must bear in mind, including the fact that because many construction lawsuits involve contract claims only, they will likely be heard in Delaware Superior Court. Further, if the dispute exceeds $1 million, it will be adjudicated before a judge assigned to the Complex Commercial Litigation Division, which was designed to streamline commercial litigation in the Delaware Superior Court.

OSHA confined space standards extend to construction industry
  • USA
  • 16 May 2016

The primary goal for employers at construction worksites – as well as at industry worksites in general – is to protect the health and safety of the workforce. To this end, the Occupational Safety and Health Administration regulates a variety of workplace safety concerns in both the public and private sectors. One of the most complex and heavily regulated areas of concern is confined spaces.

Owner forfeiture of default termination rights
  • USA
  • 04 April 2016

For construction contractors, default termination is the worst-case scenario from both a financial and reputational perspective. Despite the requirement to use discretion, many owners operate as though default termination were both an absolute remedy and a tool for leveraging the contractor should the relationship become strained.

Avoiding and defending subcontractor mechanic's liens in Texas
  • USA
  • 15 February 2016

Commercial owners and developers do not appreciate encumbrances on their property. In Texas, construction contracts reflect this self-evident phenomenon. Virtually every Lone Star contractor owes its client a duty to discharge subcontractor liens filed against the land, building or materials that make up the construction project. Fending off subcontractor liens can be a costly and unpleasant (albeit mandatory) exercise for general counsel.

Work product protection extends to dual purpose expert
  • USA
  • 09 November 2015

Following a recent court ruling, construction practitioners should carefully assess the manner in which they deal and communicate with experts. Thought should be given to what type of work product the expert will produce and what type of protection from disclosure that work product will receive. Industry clients should understand the consequences of creating internal documents that evaluate risk in the ordinary course of business.

New California public works requirements
  • USA
  • 02 November 2015

Several significant changes have been made to the laws pertaining to the administration and enforcement of prevailing wage requirements for public works projects by the California Department of Industrial Relations. Affected public agencies and contractors should familiarise themselves with the changes as it is anticipated that compliance will be actively monitored and enforced.

Illinois contractors improve priority rights over mortgage lenders
  • USA
  • 10 June 2013

Illinois law was already more favourable to contractors and subcontractors than that of most other states, but the Illinois legislature recently gave them a greater edge against lenders in failed construction projects. Contractors which are unpaid on a project now have priority on the value of the entire improvement – even the value paid for by the lender – and are not limited to the value that they themselves supplied.

Illinois Court Considers Mechanics' Lien Law and Its Consequences
  • USA
  • 25 March 2008

An Illinois circuit court recently issued an opinion which illustrates some of the consequences of the Illinois mechanics' lien law and the perils that a real estate lender can face when working out a defaulted loan. In Illinois, a prior recorded mortgage has no priority over the mechanics' lien claims of contractors, subcontractors and material suppliers which supplied work and material for a construction project.

Major Changes in the 2007 AIA Documents
  • USA
  • 29 October 2007

The American Institute of Architects has published the latest revisions to its standard forms of agreement to be used in the design and construction of projects in which architectural design plays a prominent role. Key changes have been made to the owner-architect and owner-contractor agreements.

Court Clarifies Liability for Pre-construction Environmental Reports
  • USA
  • 02 July 2007

The discovery of environmental contamination which must be remedied before construction can commence or proceed can lead to claims against the civil engineering firms that prepared pre-construction environmental reports. A recent Seventh Circuit Court of Appeals decision has clarified the issues surrounding the calculation of damages in such cases.

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