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    Navigating Threshold Arbitration Issues in Construction Contracts

    April 29, 2024 —
    Including an arbitration clause in your construction contract may not mean that your dispute will be confined to arbitration. Instead, parties often find themselves in court litigating threshold issues related to the existence and/or enforceability of an arbitration clause. Common issues include whether the underlying contract containing the arbitration clause is valid, whether the dispute falls within the scope of the clause, whether the parties complied with contractual prerequisites to arbitration, whether issues related to arbitrability are decided by the court or arbitrator, and whether one of the parties has waived their right to arbitrate. This blog post highlights two recent construction cases addressing threshold issues that a party seeking to enforce—or oppose enforcing—an arbitration clause might face. Seifert v. United Built Homes, LLC: Delegating Issues of Arbitrability to the Arbitrator In Seifert, an owner sued a homebuilder in Texas federal court for breach of contract and sought damages and declaratory relief. No. 3:22-CV-1360-E, 2023 WL 4826206 (N.D. Tex. July 27, 2023). The builder moved to compel arbitration. The owner opposed and argued that: (1) there was no agreement to arbitrate because the underlying contract was null and void, and (2) its claim for declaratory relief fell outside the scope of the arbitration clause. The court did not address the merits of either argument. Instead, it determined that these were issues for the arbitrator to decide. Reprinted courtesy of Daniel D. McMillan, Jones Day and TJ Auner, Jones Day Mr. McMillan may be contacted at Mr. Auner may be contacted at Read the full story...

    Orange County Team Obtains Unanimous Defense Verdict in Case Involving Failed Real Estate Transaction

    March 25, 2024 —
    Orange County, Calif. (March 4, 2024) - Orange County Partners Esther P. Holm and Alexandra Anast obtained a unanimous defense verdict in a real estate matter involving a failed real estate transaction. The property at issue, which was located in the West Hollywood Hills and had beautiful views, was undergoing extensive remodeling. There were several bids for its purchase. Ultimately, the plaintiff, a real estate investor, was awarded the purchase. The plaintiff and the seller entered into a real estate purchase agreement, but the plaintiff failed to release the physical contingencies within the 17-day period prescribed by the contract. Instead, the plaintiff demanded a reduction in price, which the seller rejected. The plaintiff then filed a lis pendens on the property, clouding the title and making it impossible for the sellers to sell the property to anyone else. The buyer and seller subsequently engaged counsel. The plaintiff filed the lawsuit against the seller as well as the real estate company and its agents. Prior to trial, the plaintiff and the seller reached a settlement. Read the full story...
    Reprinted courtesy of Lewis Brisbois

    Enforceability of Contract Provisions Extending Liquidated Damages Beyond Substantial Completion

    April 15, 2024 —
    This post takes a look at the enforceability of contract provisions providing for liquidated delay damages after substantial completion. Typically, the assessment of liquidated delay damages ends at substantial completion of a project. However, various standard form contracts, including some of the ConsensusDocs and EJCDC contracts, contain elections allowing for the parties to agree on the use of liquidated damages for failing to achieve substantial completion, final completion, or project milestones. The standard language in the AIA A201 leaves it up to the parties to define the circumstances under which liquidated damages will be awarded. Courts are split on the enforceability of provisions that seek to assess liquidated damages beyond substantial completions. Courts in some jurisdictions will not impose liquidated damages after the date of substantial completion on the ground that liquidated damages would otherwise become a penalty if assessed after the owner has put the project to its intended use. Perini Corp. v. Greate Bay Hotel & Casino, Inc., 129 N.J. 479, 610 A.2d 364 (1992). When the terms are clear, other jurisdictions will enforce contract terms providing for liquidated damages until final completion, even if the owner has taken beneficial use of the facility. Carrothers Const. Co. v. City of S. Hutchinson, 288 Kan. 743, 207 P.3d 231 (2009). Read the full story...
    Reprinted courtesy of Stu Richeson, Phelps
    Mr. Richeson may be contacted at

    Nondelegable Duties

    June 04, 2024 —
    Have you heard the expression “nondelegable duty”? The issue of a nondelegable duty comes into play when a party hires an independent contractor and the independent contractor commits negligence, primarily in the personal injury context. In other words, a plaintiff wants to hold a defendant liable for the injuries caused by the defendant’s independent contractor. A nondelegable duty is one that “may be imposed by statute, contract, or the common law. In determining whether a duty is nondelegable, the question is whether the responsibility at issue is so important to the community that an employer should not be allowed to transfer it to a third party.” Garcia v. Southern Cleaning Service, Inc., 360 So.3d 1209, 1211 (Fla. 3d DCA 2023) (internal citation omitted). When it comes to CONTRACTUAL duties:
    [S]pecifically the principle that one who undertakes by contract to do for another a given thing cannot excuse himself to the other for a faulty performance by showing that he hired someone else to perform the task and that other person was the one at fault. In other words, where the contracting party makes it her or his duty to perform a task, that party cannot escape liability for the damage caused to the other contracting party by the negligence of independent contractors hired to carry out the task.
    Gordon v. Sanders, 692 So.2d 939, 941 (Fla. 3d DCA 1997).
    Read the full story...
    Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
    Mr. Adelstein may be contacted at

    Toolbox Talk Series Recap – Best Practices for Productive Rule 26(f) Conferences on Discovery Plans

    May 13, 2024 —
    In the April 4, 2024 edition of Division 1’s Toolbox Talk Series, Julian Ackert and Steve Swart presented on how to prepare for and structure Rule 26(f) conferences to be more effective. While Swart and Ackert focused on the requirements of Federal Rule of Civil Procedure 26(f) regarding the requisite conference of the parties prior to a scheduling conference or scheduling order, it is worth noting that many states have substantially similar requirements. Rule 26(f) requires the parties to (i) discuss the nature and basis of their claims or defense; (ii) make or arrange for mandatory disclosures pursuant to Rule 26(a)(1); (iii) discuss issues about preserving discoverable information (including Electronically Stored Information – “ESI”); and (iv) develop a proposed discovery plan. Swart and Ackert’s presentation focused on the preservation of ESI and the proposed discovery plan. Read the full story...
    Reprinted courtesy of Douglas J. Mackin, Cozen O’Connor
    Mr. Mackin may be contacted at

    No Coverage for Homeowner Named as Borrower in Policy but Not as Insured

    July 08, 2024 —
    The magistrate judge recommended that the homeowner's complaint seeking coverage for damage caused by Hurricanes Laura and Delta be denied because the homeowner was only named as the borrower under the policy. LeDay v. Integon Nat'l Ins. Co., 2024 U,S. Dist. LEXIS 87369 (W.D. La. April 15, 2024). When the homeowner sought coverage for hurricane damage, it was denied. The homeowner then sued and Integon moved to dismiss. Integon argued it did not issue a policy to the homeowner, but the policy was issued to Midland Mortgage. The pro se homeowner did not respond to the motion. Read the full story...
    Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
    Mr. Eyerly may be contacted at

    ABC Safety Report: Construction Companies Can Be Nearly 6 Times Safer Than the Industry Average Through Best Practices

    May 06, 2024 —
    WASHINGTON, April 30, 2024 (GLOBE NEWSWIRE) -- Associated Builders and Contractors today announced the findings from its 2024 Safety Performance Report, an annual guide to construction jobsite health and safety best practices. The report is unveiled to coincide with Construction Safety Week, May 6-10. The annual safety report also provides a comprehensive understanding of the impact of deploying ABC's STEP Safety Management System, which enables top-performing ABC members to achieve incident rates 576% safer than the U.S. Bureau of Labor Statistics construction industry average. Established in 1989, STEP provides contractors and suppliers with a robust, no-cost framework for measuring safety data and benchmarking with peers in the industry. ABC's research on more than 900 million work hours completed by participants in the construction, heavy construction, civil engineering and specialty trades in 2023 identified the following foundations of industry-leading safety best practices:
    • Top management engagement: Employer involvement at the highest level of company management produces a 54% reduction in total recordable incident rates, or TRIR, and a 52% reduction in days away, restricted or transferred rates, or DART rates.
    • Substance abuse prevention programs: Robust substance abuse prevention programs/policies with provisions for drug and alcohol testing where permitted lead to a 47% reduction in TRIR and a 48% reduction in DART rates.
    • New hire safety orientation: Companies that conduct an in-depth indoctrination of new employees into the safety culture, systems and processes based on a documented orientation process experience incident rates that are 45% lower than companies that limit their orientations to basic health and safety compliance topics.
    • Frequency of toolbox talks: Companies that conduct daily, 15-to-30-minute toolbox talks reduce TRIR and DART rates by 81% compared to companies that hold them monthly.
    The 2024 ABC Safety Performance Report is based on submissions of unique company data gathered from members that deployed during the 2023 STEP term, Jan. 15-Dec. 15. ABC collects each company's trailing indicator data as reported on its annual Occupational Safety and Health Administration Form 300A ("Summary of Work-Related Injuries and Illnesses") and its self-assessment of leading indicator practices from its STEP application. Each data point collected is sorted using statistically valid methodology developed by the BLS for its annual Occupational Injuries and Illnesses Survey and then combined to produce analyses of STEP member performance against BLS industry average incident rates. The report demonstrates that applying industry-leading processes dramatically improves health and safety performance among participants regardless of company size or type of work. Any company can participate in STEP. Visit to begin or continue your safety journey.

    Construction Litigation Roundup: “This Is Sufficient for Your Purposes …”

    April 08, 2024 —
    … but just barely. Federal courts are “notice” pleading courts. One source writes: “Notice pleading refers to pleading standards that merely notify the opposing party and court of the general issues in the case. In contrast to fact pleading standards, notice pleading standards do not require pleadings to include hyper-detailed facts in support of each claim.” Some state courts – including Louisiana – are fact pleading courts. Ordinarily, no one practicing in Louisiana state courts would describe the fact pleading requirements for initiating a lawsuit as mandating “hyper-detailing” of the facts, but … why risk it? In a construction mechanics lien case – the jurisprudence for which requires that courts strictly construe the related law because liens empower lien holders with rights which are “in derogation” of common property ownership rights – the defendant was successful in having the trial court dismiss a lien suit for failing to affirmatively set forth in the complaint (a “petition” in Louisiana) the date of substantial completion. The lien claimant appealed. Read the full story...
    Reprinted courtesy of Daniel Lund III, Phelps
    Mr. Lund may be contacted at