The Increasing Trend of Caps in Construction Contracts and Negotiating Them
November 27, 2023 —
Jarred Trauth - ConsensusDocsRisks are inherent in every construction project and all parties involved face them: owners, designers, general contractors/builders, subcontractors, suppliers…. Equitably allocating such risks is one of the most important and most negotiated areas of any construction related contract. Limitations of liability provisions are key to risk allocation. These provisions include no damage for delay provisions and caps on delay damages, warranty limitations and exclusions, indemnity limitations, and consequential damage waivers. Another, and the focus of this article, is a liability cap fixing the total amount of damages for which a party may be liable under the contract (the “Liability Cap”). Liability Caps have become more and more common in construction and construction related contracts, including major component supply agreements and design agreements.
This article will discuss Liability Caps generally and considerations of an owner or contractor negotiating them, including carve-outs (i.e. exceptions) to them.
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Jarred Trauth, Jones Walker LLPMr. Trauth may be contacted at
jtrauth@joneswalker.com
Traub Lieberman Partner Michael K. Kiernan and Associate Brandon Christian Obtain Dismissal with Prejudice in Favor of Defendant
November 27, 2023 —
Michael K. Kiernan & Brandon Christian - Traub LiebermanIn a 14-count breach of contract action brought in the Fifteenth Judicial Circuit in Palm Beach County, Florida, Partner Michael K. Kiernan and Associate Brandon Christian obtained dismissal with prejudice in favor of Defendant St. Joseph’s Episcopal Church of Boynton Beach, Florida (“Church”).
Plaintiffs, St. Joseph’s Episcopal School (“School”) and its benefactor, William Swaney, filed suit to enforce an alleged 99-year oral lease agreement which Swaney asserted had been made to him by a prior rector of the Church in exchange for his contributions to the School. Plaintiffs also sought emergency injunctive relief to allow the School to continue to operate on Church property. The Church maintained in part that the only lease in effect was a written lease, approved by the Church Vestry and the Diocese of Southeast Florida, and which the Church Vestry unanimously voted not to renew in 2022.
Reprinted courtesy of
Michael K. Kiernan, Traub Lieberman and
Brandon Christian, Traub Lieberman
Mr. Kiernan may be contacted at mkiernan@tlsslaw.com
Mr. Christian may be contacted at bchristian@tlsslaw.com
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Hawaii Court of Appeals Finds Insured AOAO Not Liable for Securing Inadequate Insurance
March 04, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe Hawaii Intermediate Court of Appeals (ICA) affirmed the trial court's finding that the insured Association of Apartment Owners (AOAO) was not liable for securing a policy with inadequate coverage. AOAO Queen Emma Gardens, et al v. Wa, 2023 Haw. App. LEXIS 400 (Haw. Ct. App. Dec. 19, 2023).
In October 2002, the Was purchased a condominium located in the Queen Emma Gardens Condominium. The AOAO's bylaws provided that it would procure and maintain insurance "to insure the Board, the Association, and each apartment owner against claims for personal injury, death, and property damage arising out of the condition of the property or activities thereon . . ." The AOAO secured a CGL policy from Insurance Association, Inc., with coverage limits for bodily injury at $1,000,000 and an umbrella policy providing an additional $5,000,000 of coverage. Each of the policies "insured each individual insurance owner of the insured condominium, but only with respect to liability arising out of the ownership, maintenance or repair of that portion of the premises which is not reserved for that unit owner's exclusive use or occupancy."
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Thank You for 17 Years of Legal Elite in Construction Law
December 16, 2023 —
Christopher G. Hill - Construction Law MusingsThank you once again to those in the Virginia legal community who elected me to the Virginia Business Legal Elite in the Construction Law category for the 17th consecutive year. The 17 consecutive years of election to the Legal Elite in the Construction Category span my entire close to 14 years as a solo construction attorney. The fact that you all have continued to elect “100%” of the lawyers at The Law Office of Christopher G. Hill, PC for the last 13 years is most gratifying and only confirms that my decision to “go solo” over 13 years ago was a good one. To be included in this list of top construction attorneys is both humbling and gratifying. For the complete list of the Virginia construction lawyers who were elected along with me, see the 2023 Virginia Business Legal Elite in Construction Law.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Seattle’s Audacious Aquarium Throws Builders Swerves, Curves, Twists and Turns
January 08, 2024 —
Nadine M. Post - Engineering News-RecordPatrick Nation describes the reinforcing steel for the main tank of the 50,000-sq-ft Seattle Aquarium Ocean Pavilion as a “monster” job for CMC Rebar. In his mind, it was like bending 496 tons of bars “on a golf ball.” In reality, the operation was more like weaving a giant steel basket. Ironworkers had to painstakingly hand-thread the reinforcing steel for the doubly curved and slanted concrete walls of the 350,000-gallon saltwater exhibit—one bar at a time—to create the dense latticework for the 41-ft-tall basket.
Reprinted courtesy of
Nadine M. Post, Engineering News-Record
Ms. Post may be contacted at postn@enr.com
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Governmental Action Exclusion Bars Claim for Damage to Insured's Building
November 27, 2023 —
Tred R. Eyerly - Insurance Law HawaiiThe lower court's decision finding no coverage based upon the governmental action exclusion was affirmed by the Appellate Court of Illinois. McCann Plumbing, Heating & Cooling v. Pekin Ins. Co., 2023 Ill.App. LEXIS 300 (Ill. App. Ct. Aug. 23, 2023).
McCann purchased a building to use for its heating, ventilation, and air conditioning business. The building was surrounded by two unihhabited properties which often flooded. The city determined that a building on the adjacent property had to be demolished. In the course of destruction, the McCann's building was damaged, leaving a portion of their building open to the elements.
McCann sought coverage from Pekin for damage incurred in the demolition. The policy provided coverage for "direct physical loss of or damage to" the covered property. Pekin denied coverage under the policy's governmental action exclusion, which provided,
We will not pay for loss or damage caused directly or indirectly by any of the following:
. . .
c. Governmental Action
Seizure or destruction of property by order of governmental authority . . .
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Jason Feld Awarded Volunteer of the Year by Claims & Litigation Management Alliance
April 15, 2024 —
Linda Carter - Kahana FeldOn April 3, 2024, Kahana Feld’s Co-Founding Partner, Jason Feld was honored by the Claims & Litigation Management Alliance (CLM) with the Inaugural Volunteer of the Year award.
The CEO of CLM, Ronna Ruppelt stated, “The new CLM Volunteer of the Year award honors dedicated members who passionately serve the CLM community. Jason’s service spans over a decade as both the President and Director of Events for the Orange County Chapter. Under his guidance, this chapter has flourished – not only educating and connecting the CLM community but rallying members to give back to the local community through service events in the process. Jason is also a frequent writer, speaker, and contributor for CLM events, and we are proud to honor him as our inaugural CLM Volunteer of the Year.”
Mr. Feld is a renowned nationwide construction claims leader who actively speaks at industry events. He serves as panel counsel for many prominent insurance carriers and provides personal counsel for multiple national and regional builders, developers, and contractors. With his vast experience and expertise, Mr. Feld is a trusted authority in the field and is highly regarded for his legal representation.
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Linda Carter, Kahana FeldMs. Carter may be contacted at
lcarter@kahanafeld.com
Compliance Doesn’t Pay: Compliance Evidence Inadmissible in Strict Liability Actions
February 05, 2024 —
Kyle Rice - The Subrogation StrategistIn Sullivan v. Werner Co., No. 18 EAP 2022, 2023 Pa. LEXIS 1715 (Dec. 22, 2023), the Supreme Court of Pennsylvania (Supreme Court) clarified that in light of its decision in Tincher v. Omega Flex, Inc., 628 Pa. 296 (2014), evidence that a product complied with industry standards is inadmissible in an action involving strict product liability.
In Tincher, the Supreme Court overruled prior case law and reaffirmed that Pennsylvania is a Second Restatement Jurisdiction. As stated in Sullivan, discussing Tincher, under the Restatement (Second) of Torts § 402A, a “seller of a product has a duty to provide a product that is free from ‘a defective condition unreasonably dangerous to the consumer or [the consumer’s] property.’ To prove breach of this duty, a ‘plaintiff must prove that a seller (manufacturer or distributor) placed on the market a product in a “defective condition.””
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Kyle Rice, White and WilliamsMr. Rice may be contacted at
ricek@whiteandwilliams.com