Construction Owners & Builders Law Blog

Continued Performance Clause Held Unenforceble

The Real Estate and Construction Blog summarizes a Califonia appellate court recently held a "continued performace clause" is not enforceable when the owner commits a material breach.

]]> The Real Estate and Construction Blog points out that the decision eviscerates the purpose of the clause: "To the extent Barton Properties holds that a continued performance clause is unenforceable when the owner's breach is material, and remains enforceable when a party's breach is minor or immaterial, such clauses would add little or nothing to the parties' legal relationship that is not already part of California law. "

Insurance defense practices in construction defect cases

Professor Herbert Kritzer's article on "The Commodification of Insurance Defense Practice" in construction defect and other cases is a must read for attorneys representing both claimants and insured.

Is there a difference between honesty and truthfulness?

For lawyers, maybe so, says Professor Peter Henning in an article for the Notre Dame Journal of Law and Ethics.

]]> Henning posts a summary of the article and links to a copy at Legal Ethics Forum.

Here's the guts of his opinion:

An honest lawyer is one who can be trusted. For the purposes of analyzing the rules that govern a lawyer's conduct, I define honesty to mean that an attorney's expressions and conduct are both accurate and authentic. An accurate statement is one that is truthful and does not intentionally deceive or mislead another person. Accuracy deals with the problem of the technically true but misleading statement or failure to disclose information that the listener would consider important. A deceptive statement would be inaccurate and therefore dishonest. At the same time, a lawyer's statements will be accurate even if they do not fully disclose the truth about a situation. The attorney-client privilege, for example, may restrict what a lawyer can state to third parties, and accuracy requires that the lawyer not mislead while he also is maintaining the confidences protected by the rules of confidentiality. An authentic expression is one that comprehends fairly the lawyer's (and in certain circumstances the client's) intentions.

"Binding mediation" is an oxymoron

A California appellate court decision banning "binding mediation" is discussed over at May It Please the Court.

Katrina victims win round when federal court holds the insurance policy ambiguous

Updated: A Mississippi federal district court has held State Farm's insurance policy form ambiguous and that State Farm must pay for wind and water damage even if tidal surge caused later caused further destruction, reports the SunHerald.

]]> In an earlier decision , the same Judge had upheld a more specific concurrent-cause exclusion in the Allstate form. Findlaw and May It Please the Court discuss the two decisions.

The Supreme Court decides to revisit the issue of constitutional limits on punitive damages (UPDATED)

The Court will decide whether its earlier decision in State Farm v Campbell (i) mandates a reasonable ratio between compensatory and punitive damages when the defendants conduct was outrageous and (ii) prohibits the jury from considering the harm done to persons other than the plaintiff in making its award.

]]> The Court will be reviewing the Utah Supreme Court's affirmance in Philip Morris USA v. Williams of a $79.5 million damage award against a tobacco company. The jury awarded the plaintiff $521,485.40 in compensatory damages. The Court's decision to grant review is discussed at the ScotusBlog, The Volokh Conspiracy and Point of Law Forum.

My guess--insurers will like what the Court says on these issues. But the WSJ Blog is less sanguine about how the new Justices will vote.

Taking the hand-shake contract to the ultimate level

"We shook hands on it" connotes to folks in the construction business a legally binding deals been made. Would writing the contract with one's own blood connote more?

]]> The WSJ.com Law Blog reports on a California case(where else) that tests whether any special weight should be assigned to a contract writrten in blood.

How not to write an arbitration agreement

Make the arbitration clause one-sided and give yourself, but not the other party, a way to opt out and the clause is unenforceable according to a recent ruling by the Wisconsin Supreme Court.

]]> The National Arbitration Association Forum Blog discusses the opinion.

The Federal Prompt Pay Act sets time limits for payment of government construction contractors

The provisions of the Act are summarized and linked to over at Construction Lawyer-Utah.

The effect of giving an insurer late notice on a otherwise covered construction claim

Marc Mayerson over at the Insurance Scrawl does his usual masterful job discussing recent case law on when late notice results in forfeiture of insurance coverage.

Expert's testimony on lost profits deemed unreliable.

What expert witness testimony is required to recover lost profits in construction litigation under the Daubert standard?

]]> A hint can be gleaned from the Mississippi Supreme Court's decision last week in Webb v Braswell, a lender liability and accounting malpractice case. The Court held the trial court had properly rejected an economist's testimony that the plaintiffs had lost profits as a result of the defendant's failure to fund a crop production loan. The Court reasoned that Daubert required the testimony be based on past profitability and the expert's testimony was unreliable because the plaintiffs had always lost money on their farm operations in the past.

The use of Engineering, Procurement, Construction Contracts for offshore wind farms

An Engineering, Procurement and Construction contract (EPC) requires the contractor to bear the construction risks and to deliver a "turn-key" project.

]]> The ContractsProf Blog points to a report describing how reluctant contractors are to assume construction risks on new offshore wind energy projects.

Designing a fire suppression system for a new building

The New Jersey Law Blog provides important "how to" advice about designing a non-defective fire suppression system for a new building.

Construction Litigation--the Paper Chase no more

I've joined the debate over the wisdom of the paperless office over at The Illinois Trial Practice Weblog.

]]> The paperless office saves clients money--facilitates keepoing them informed--and makes me a better lawyer. It's a no brainer.

When is owner non-compliance with payment terms a material breach of contract?

A material breach by the owner ordinarily relieves the contractor of his duty to perform. Non-payment by the government as a material breach of contract is the subject of a Government Contracts Litigation post.