Resolving construction disputes often involves unravelling complex issues and requires the analyses and opinions of expert witnesses in various industries relating to the project. Therefore, retaining an expert consultant as soon as litigation is imminent can be the difference between a party's pursuit or defence of construction litigation claims. To best utilise the leverage and advantages that non-testifying consultants offer, parties should retain legal counsel who are aware of the role that timing plays in expert retention.
Construction project schedules often generate disputes between project owners and contractors. These disputes commonly become the subject of claims that assign fault for delayed project completion to one party or another. When delays occur and float is available, each party may assume entitlement to the float on the project schedule and subsequent exemption from liability for damages relating to its delay; however, merely assuming float ownership can lead to unfavourable outcomes.
If a trade contractor submits a bid that a general contractor relies on to win a contract, questions may arise as to whether that bid is a contract and whether it is binding. Even if the bid does not meet the elements of a contract, it can still be binding. The courts apply the doctrine of promissory estoppel to hold parties to their bids in the absence of a contract. Differences in jurisdiction and in the facts of each case may affect the outcome, but when a bid is submitted it should be assumed to be binding.
Underground utilities and pipelines pose potential problems for excavators and other contractors performing work below ground. Whether a business involves the construction of buildings primarily above ground or running pipes or cables below, there are issues to consider where a construction involves excavations. Ultimately, excavators must use care to avoid damaging marked lines and take all reasonable steps to protect underground facilities, pipelines and on-site people from harm.
The 13th Court of Appeals in Edinburg, Texas recently issued an opinion that could eliminate the statutory employer protection for general contractors in certain circumstances if allowed to stand. The court held that in order to avail itself of the statutory employer defence, a general contractor must do something more than pass the onus of obtaining workers compensation coverage to its subcontractor. General contractors may need to rethink how they provide for workers' compensation coverage in future.
Pennsylvania's intermediate appellate court has affirmed a defence verdict for the design and construction manager of a major league baseball stadium. The court issued its ruling following extensive discovery and motions practice, a six-week bench trial in 2010 and two defence verdicts. The case has a number of key takeaways for complex, multi-party cases.
Proving waiver of a party's contractual right to arbitrate has often been a laborious obligation of the party bearing such burden. In the case between Legoland and Superior Builders, the court of appeals concluded that Legoland's actions in Superior's suit did not substantially invoke the judicial process; therefore, Superior failed to carry its heavy burden to show that Legoland had waived its contractual right to arbitrate. Accordingly, the court compelled the parties' dispute to arbitration pursuant to their arbitration agreement.
Construction delay claims are regarded as being among the most difficult types of claim in the industry, due in large part to the difficulty in analysing the home office overhead costs associated with a specific project in conjunction with the percentage of the total amount of these costs for the company. It is important for a contractor to select a recognised methodology for calculating allocable home office overhead costs and ensure that all elements tied to such damages methodology are satisfied.