Snooze You Lose? Enforcement of Notice and Timing Provisions
November 11, 2024 —
Cornelius F. "Lee" Banta, Jr. - ConsensusDocsDeadlines are an inescapable part of the construction industry. Bid deadlines. Submittal deadlines. Material delivery deadlines. Substantial completion. Final completion. And so, inevitably, fighting about deadlines becomes a necessary byproduct. Was the deadline really a deadline? Was the schedule slippage on the critical path? Should there be an equitable extension to the date of substantial completion? Given the amount of attention and concern conferred on deadlines, those drafting construction contracts naturally seek to clarify which deadlines really matter with the inclusion of notice and timing provisions.
A contract’s change order and claims procedures are often a key friction point for those drafting and administering the contract. Should there be a requirement for prior written notice of a claim for cost/time relief? How much advance notice? Who should the request be sent to? Is a specific form of notice required? What are the consequences of failing to provide timely notice? A practitioner should pay careful attention to negotiating these terms on the front end, because rest assured, these contract provisions will garner scrutiny when a change order dispute boils over.
Read the full story...Reprinted courtesy of
Cornelius F. "Lee" Banta, Jr., Peckar & Abramson, P.C.Mr. Banta may be contacted at
lbanta@pecklaw.com
Winning Construction Disputes: Strategic Negotiation for Better Outcomes
February 19, 2025 —
Mohamed Asker - The Dispute ResolverConstruction projects are inherently complex, and disputes seem to be inevitable. Whether it’s a disagreement over defective work, delayed payments, or unforeseen site conditions, effective negotiation can mean the difference between a favorable settlement and an expensive, drawn-out battle. While many in the industry rely on traditional bargaining tactics or the principles from “Getting to Yes,” Chris Voss’s “Never Split the Difference” provides a tactical, psychological approach that can give contractors, owners, and attorneys a decisive edge.
1. The Myth of Splitting the Difference
The title of Voss’s book is a direct challenge to one of the most common, yet flawed, negotiation strategies: compromise. In construction disputes, parties often propose to “meet in the middle” as a quick resolution. However, as Voss warns, “A woman wants her husband to wear black shoes with his suit. But her husband doesn’t want to; he prefers brown shoes. So what do they do? They compromise, they meet halfway. And, you guessed it, he wears one black and one brown shoe.” In construction, this can mean accepting an unsatisfactory repair or agreeing to partial payment for incomplete work—neither of which truly resolves the issue.
Read the full story...Reprinted courtesy of
Mohamed Asker, Fox RothschildMr. Asker may be contacted at
masker@foxrothschild.com
First Circuit Broadly Interprets Exclusion in Commercial General Liability Policy Under Current Massachusetts Law
February 19, 2025 —
Bill Wilson - Construction Law ZoneIn Admiral Insurance Co. v. Tocci Building Corp., 120 F.4th 933 (1st Cir. 2024), the federal Court of Appeals ruled that, under current Massachusetts law, a general contractor’s Commercial General Liability (CGL) policy does not cover damage to non-defective work resulting from defective work by subcontractors.
The defendant contractor was retained as a construction manager for an entire residential construction project. After several work quality issues and delays on the project, the contractor was terminated before the project’s completion. The owner of the project filed suit against the contractor for breach of contract and related claims but did not allege negligence by the contractor. The complaint included allegations of defective work by the contractor’s subcontractors leading to various instances of damage to non-defective work on the project including: (1) damage to sheetrock resulting from faulty roof work; (2) mold formation resulting from inadequate sheathing and water getting into the building; and (3) damage to a concrete slab, wood framing, and underground pipes resulting from soil settlement due to improper backfill and soil compaction. The contractor’s request for defense and indemnification coverage under its CGL policy was denied by its insurer. The insurer filed suit seeking a declaratory judgment confirming it had no obligation to defend or indemnify the contractor. The district court granted summary judgment in favor of the insurer and the contractor appealed.
Read the full story...Reprinted courtesy of
Bill Wilson, Robinson & Cole LLPMr. Wilson may be contacted at
wwilson@rc.com
Why Death Follows Faulty Edge Fall Protection–And How to Fix It
March 18, 2025 —
Richard Korman - Engineering News-RecordThe last earthly contact Siarhei Marhunou had with a construction material was with a 2 x 4 that was part of a protective guardrail on the balcony where he had been installing siding. The barrier had been erected by a prior contractor that worked at 2330 Sansom Street, a Philadelphia residence undergoing renovation, some time before Marhunou’s arrival at the job in December 2021. The guardrail apparently was too low to meet the federal standard for edge barriers where a ladder was in use and lacked a midrail, an expert witness for Marhunou’s widow reported in her negligence lawsuit against the companies on the project.
Read the full story...Reprinted courtesy of
Richard Korman, Engineering News-RecordMr. Korman may be contacted at
kormanr@enr.com
Toolbox Talk Series Recap - The New Science of Jury Trial Advocacy
December 31, 2024 —
Douglas J. Mackin - The Dispute ResolverIn the November 21, 2024 edition of Division 1's Toolbox Talk Series,
John Jerry Glas discussed how construction lawyers should adjust their trial strategies in response to shifts in juror attitudes. Glas believes that jurors have changed in the last twenty years, with modern jurors being more reluctant than ever to be seen as a lawyer’s puppet. Instead, they simply want a lawyer to help them organize and wade through evidence without spinning it and without spoon-feeding it. Essentially, Glas believes that lawyers achieve better jury trial results if they acknowledge the paradigm shift in jury psychology and reinvent themselves in response by influencing jury deliberations without directly telling a jury what to do. Glas refers to this as the “Waiter Pivot” and recently published a
book on the topic.
Throughout his presentation, Glas discussed how construction lawyers can embrace the Waiter Pivot throughout a jury trial:
- Voir Dire: Lawyers make their first impressions on a jury during voir dire. As such, lawyers should avoid questions that make jurors feel judged or stereotyped. Instead, give the jurors credit and make use of the opportunity to begin framing their case. For example, Glas once repeated the word “specifications” or “specs” in every question during voir dire where his product liability case turned on whether or not the product deviated from specifications.
Read the full story...Reprinted courtesy of
Douglas J. Mackin, Cozen O’ConnorMr. Mackin may be contacted at
dmackin@cozen.com
Los Angeles Wildfires to Impact Profitability of US Property Insurers, Says GlobalData
February 03, 2025 —
GlobalDataThe Los Angeles (LA) area in the US has witnessed a devastating impact from a series of wildfires that erupted since the second week of January. There were 312 wildfires that resulted in 28 deaths and the destruction of 16,255 structures as of 29 January, with the Palisades and Eaton wildfires continuing to burn, according to the California Department of Forestry and Fire Protection. Estimates from the University of California suggest that the total damage from the LA wildfires could surpass $20 billion. Consequently, US insurers may see increased claims in 2025 across various insurance lines, potentially affecting their profitability, says
GlobalData, a leading data and analytics company.
Manogna Vangari,
Insurance Analyst at GlobalData, comments: "The recent LA wildfires are expected to impose significant financial burdens on property and casualty insurers, with damages potentially exceeding billions of dollars. The destruction affects both residential and commercial properties, particularly high-value homes and businesses, leading to anticipated insured losses to be among the highest in California's history."
Property insurance claims are projected to represent a 13.1% share of total general insurance claims in the US in 2025, totaling $247 billion. Incurred losses are anticipated to rise by 7.5% in 2025, reaching $193.6 billion from $180.1 billion in 2024. However, the full effect of wildfires may push actual claims even higher. Consequently, the profitability of the US general insurance sector is expected to be notably affected, with the average combined ratio predicted to exceed 100% in 2025.
According to GlobalData's
Global Insurance Database, the US property insurance industry is expected to grow at a CAGR of 7.3% over 2025–29, from $416.3 billion in 2025 to $551.1 billion in 2029, in terms of gross written premiums (GWP).
Meet the Forum's In-House Counsel: SONYA SEEDER
March 10, 2025 —
Jessica Knox - The Dispute ResolverCompany: Guidon Design
Email: sseeder@guidon.com
Website: www.guidon.com
Law School: IU McKinney School of Law (JD 2010)
States Where Company Operates/Does Business: Headquartered in Indianapolis, IN with federal, state and private projects across the country and Puerto Rico
Q: Describe your background and the path you took to becoming in-house counsel.
A: I didn't come to in-house counsel through a traditional path (a law firm). After some time on both the prosecution and defense sides, I left criminal law and became a deputy corporation counsel to Code Enforcement. I realized that most legal questions were actually process questions in disguise. I ran the Bureau of Licensing and Permitting where I enjoyed molding process around municipal code. I moved on to run the city's real estate program where I acted as the Owner to multiple municipal projects. Seeing projects though planning, permitting and construction has given me a unique and practical perspective on construction projects. My ability to create process around the law (and understand permitting) was a big selling point to my current employer.
Read the full story...Reprinted courtesy of
Jessica Knox, Stinson LLPMs. Knox may be contacted at
jessica.knox@stinson.com
Federal District Court Addresses Anti-concurrent Cause Language in Property Policy
February 04, 2025 —
James M. Eastham - Traub LiebermanIn Surchi1, LLC v. Travelers Indem. Co., 2024 U.S. Dist. LEXIS 227796 (N.D. Ill. Dec. 17, 2024), the United States District Court for the Northern District of Illinois addressed a carrier’s obligation to cover costs associated with remediating water-related damage to insured property. In July 2022, the insured property experienced water-related damage and resulting repair costs. A claim was submitted for coverage under a property policy issued by Travelers. Travelers denied the claim and the insured initiated an action against Travelers seeking coverage. During the litigation Travelers maintained its position that it was not obligated to cover the water-related damage, because (1) under the policy, Travelers is not obligated to cover damage caused by surface water, even if surface water contributed only in part to the damage, and (2) the pleadings irrefutably establish that surface water contributed, at least in part, to the property damage. The insured took the contrary view arguing that Travelers was obligated to cover water-related damage (1) because the damage was the result of a water or sewage backing up or overflowing from sewers, and (2) this obligation remains, even if surface water contributed in part to the damage.
The court began with a review of the relevant policy language. Under the policy, Travelers "will not pay for loss or damage caused directly or indirectly by ... surface water." At the same time, under a change endorsement to the policy, Travelers agreed to cover "direct physical loss of or damage to Covered Property at the described premises caused by or resulting from water or sewage that backs up or overflows from a sewer, drain, or sump." In light of this language, the parties dispute centered on whether Travelers is obligated to cover damages caused concurrently by surface water (an excluded peril) and by water or sewage that backs up or overflows from a sewer, drain, or sump (a covered peril).
Read the full story...Reprinted courtesy of
James M. Eastham, Traub LiebermanMr. Eastham may be contacted at
jeastham@tlsslaw.com
