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.

>> Continue Reading Posted In Construction Claims & Disputes , Construction Contracts , Construction Law , Construction Litigation
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Insurance defense practices in construction defect cases

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.

>> Continue Reading Posted In Alternative Dispute Resolution , Construction Law , Trial and Litigation Techniques
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"Binding mediation" is an oxymoron

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.

>> Continue Reading Posted In Construction Law , Hurricane Katrina , Insurance Bad Faith , Insurance Coverage
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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.

>> Continue Reading Posted In Construction Claims & Disputes , Construction Law , Construction Litigation , Insurance Bad Faith
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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?

>> Continue Reading Posted In Construction Contracts , Construction Law
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How not to write an arbitration agreement

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

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

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?

>> Continue Reading Posted In Mississippi Construction Law
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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.

>> Continue Reading Posted In Construction Contracts , Construction Law
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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.

Posted In Construction Contracts , Construction Law , Government Contracts
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Builder Association applauds Supreme Court's Clean Water Act Decision

The National Home Builders Association believes a recent decision by the Supreme Court confirms the E.P.A. is exceeding its authority in requiring builders to secure water discharge permits

Posted In Construction Contracts , Construction Industry News , Construction Law
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Levee study says people died because of faulty design and construction

The breaches in the New Orleans levees during Katrina were caused by negligent design, construction and maintenance and parts of the system will still be flawed after current repairs are completed according to a just completed study reports the New York Times.

Posted In Construction Defects & Defective Construction , Construction Law , Government Contracts , Hurricane Katrina
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The battle over re-building Biloxi, Mississippi

How FEMA's new elevation requirements and Biloxi's politicians ran the New Urban architects hired to plan the City's re-construction out of town is described in the New York Times Magazine (free subscription rerquired).

Posted In Construction Industry News , Hurricane Katrina , Mississippi Construction Law
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More on Katrina construction flaws

Dan Hawbacker over at the Construction Law Blog points to a number of reports dealing with the collapse of the levees and other Katrina related construction defects and failures.

Posted In Construction Law , Government Contracts , Hurricane Katrina
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The Election-Doctrine under the Contracts Disputes Act

Under the federal Contract Disputes Act, a construction contractor seeking to overturn a contracting officer's final decision must either file a notice of appeal to a board of contract appeals within 90 days of the decision or file a complaint in the U.S. Court of Federal Claims within a year after the decision.

>> Continue Reading Posted In Construction Claims & Disputes , Construction Law , Government Contracts
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Punitive damages in construction litigation

Punitive damages sometimes are awarded in construction claim cases and often awarded in insurance bad faith cases so I note with interest that yesterday the Oregon Court of Appeals overturned a $100 million punitive damages award in a tobacco case.

>> Continue Reading Posted In Construction Claims & Disputes , Construction Law , Insurance Bad Faith
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Other states unlikely to sue lead paint manufacturers

Jury should not be allowed to interpret warranty against faulty materials and workmanship

$22 million earned by one engineering expert

Next time a client complains about a construction expert's fees and expenses, I'm going to send him or her a copy of "Expert Witness Industry Booming" from the Star-Telegram.

>> Continue Reading Posted In Construction Claims & Disputes , Construction Law , Construction Litigation , Trial and Litigation Techniques
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Logical arguments for winning construction claims

The presentation of construction claims sometimes suffers because not enough attention is given to whether the claim holds together logically.

>> Continue Reading Posted In Construction Claims & Disputes , Construction Law , Construction Litigation
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The Washington Post Starts a Legal Blog

Do current building codes permit building a house of cards?

That's what the Chair of the Ad Hoc Committee on Terrorism-Resistant Buildings (TRB) of the International Code Council suggested at a recent Washington meeting reports ENR.com

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Industry News , Construction Law , Construction Litigation
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Is a surety's performance bond liability conditioned on the contractor declaring a default?

The Washington Court of Appeals said "no" a decision that create considerable angst among surey defense lawyers and their clients.

>> Continue Reading Posted In Construction Law
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Mike Wallace's unqualified rating by the American Bar Association baffles me too

Mike Wallace's unqualified rating took me by surprise. He is a fine man and an outstanding lawyer, and I say that though politically we come from different places.

>> Continue Reading Posted In Construction Claims & Disputes , Construction Industry News , Construction Litigation , Mississippi Construction Law
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Mississippi homeowners accuse State Farm of one-size-fits-all investigation of Katrina damage

Mississippi Gulf Coast homeowners have accused State Farm Insurance in a new lawsuit of pressuring adjusters and engineers to rely on an engineering report alleging Katrina's storm surge arrived before its windd did any damage reports MSNBC.

Posted In Construction Law , Hurricane Katrina , Insurance , Insurance Bad Faith , Insurance Coverage
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Blawg Review 56

Violation of gag order results in contemp finding in lead paint case

Construction Litigation Evidence: the Waybackmachine

I am presently prosecuting a civil RICO/ business tort case in which one of the key issues was the contents of the defendant's web site in 2004.

>> Continue Reading Posted In Construction Law , Construction Litigation , Trial and Litigation Techniques
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Gulf Coast wrestling with FEMA's new elevation standards for flood insurance

The SunHerald, which recently won the Pulitzer Prize for its hurricane reporting, observes that the proposed new elevations are "one of the harshest realities of our recovery from Katrina."

>> Continue Reading Posted In Hurricane Katrina , Mississippi Construction Law
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What standards govern expert testimony in mold, sick building and defective construction cases?

Boston firm truly goes beyond hourly billing

Hourly billing is not in most client's best interest. For that reason, I routinely offer owners and contractors alternative fee arrangements that take into account their needs as well as my own.

>> Continue Reading Posted In Construction Law
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Law Blogs are influencing legal scholarship and court decisions

Construction dirt tax proposed by Gulf Coast County

Construction contract damages

Mexican-American construction workers celebrate Cinco de Mayo

Today Mexican-American construction workers, many of whom are helping re-build the Mississippi Gulf Coast and New Orleans, celebrate the Mexican army's victory over french invaders at the Battle of Puebla in 1862.

>> Continue Reading Posted In Construction Law , Hurricane Katrina
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Drying out a wet wall cavity to remediate mold

City may ban Wal-Marts

That's the practical effect of a California appellate decision upholding a zoning ordinance barring "big box " retail stores. Read the summary over at the Real Estate and Construction Law Blog.

Posted In Construction Law , Construction Litigation
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Another report faults the Corps of Engineers

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A panel of engineers has concluded "[t]he corps did not follow its own procedures in monitoring the rate of subsiding and rising of water levels around the city...and based the design of the levee system on outdated information...." reports the New York Times(free subscription).

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Law , Government Contracts , Hurricane Katrina
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Should a court enforce a contract that disclaims or limits liability for fraud?

The limits of peer review

The limits of peer review of articles and research relied upon by experts is discussed in today's New York Times (free subscription required).

Posted In Construction Law , Construction Litigation , Trial and Litigation Techniques
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Insurers bail out on coastal communities

On the eve of hurricane season home insurers are cancelling policies or refusing to write new ones in many coastal communities reports the Clarion Ledger.

>> Continue Reading Posted In Construction Law , Hurricane Katrina , Insurance , Insurance Bad Faith , Insurance Coverage , Mississippi Construction Law
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Petroski's Maxims of Engineering Failure

Today's New York Times (free subscription required)profiles Henry Petroski, a Duke Professor whose research focuses on the lessons to be learned from design and construction failures.

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Law , Sick buildings
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Blawg Review # 55

Modeling how New Orleans sank

McGraw Hill Construction reports on the Katrina levee failure analysis and rebuilding effort being led by the Corps of Engineers.

Posted In Construction Defects & Defective Construction , Construction Law , Government Contracts , Hurricane Katrina
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Trial Court's decision likely to be the final word about your expert

Whatever the trial court decides about your expert "in the exercise of its sound discretion" is likley to stand up on appeal at least in federal court.

>> Continue Reading Posted In Construction Litigation , Mississippi Construction Law , Trial and Litigation Techniques
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Blawg Review No. 54

Check it out over at bk!.

Posted In Construction Law
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How best to organize a family owned construction business

Sarah Spear's written an outline on the importance of chossing the right business vehicle for a family owned or closely held business.

>> Continue Reading Posted In Construction Law
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Blawg Review No. 53

The theme is "Tax Day" over at Mauled Again.

Posted In Mississippi Construction Law
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Enron trial woodshedding leads witness to chopping block?

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leads to?

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The New York Times reports prosecutor Sean Berkowitz made a nationally known trial consultant's woodshedding skills an issue in his cross examination of Jeffrey Skilling.

>> Continue Reading Posted In Construction Litigation , Mississippi Construction Law , Trial and Litigation Techniques
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Physician's mold causation testimony barred

Blog 702 reports on a recent federal appellate case affirming exclusion of a physician's opinion that toxic mold caused plaintiifs' respiratory illness.

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Law , Construction Litigation , Mississippi Construction Law , Toxic mold
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Stigma damages allowed for defective construction

The Washington Supreme Court joins the Mississippi Supreme Court in holding that damages for the diminished value of property as well as cost of repair damages may be recovered for construction defects.

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Law , Construction Litigation , Sick buildings , Toxic mold
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Is summary judgment unconstitutional?

Professor Suja Thomas argues it is in a provocative article scheduled for publication in the Virgina Law Review. Link

>> Continue Reading Posted In Construction Law , Construction Litigation , Mississippi Construction Law , Trial and Litigation Techniques
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$30 Million mold claim

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The Clements "knew something was wrong the November day in 2003 they moved into the Airmont home, which they first saw in August and purchased for $430,000. The windows in the front of the house were so fogged up the Clements couldn't see out of them..."

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Litigation , Mississippi Construction Law , Toxic mold
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Do new mold and construction defect exclusions comply with renewal rule?

Blawg Review # 51

It includes some fabulous ancient visual art over at Declarations and Exclusions.

Posted In Construction Law
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The Boston Scaffolding Collapse

How the jury decided the lead paint manufacturers were liable


The public, lawyers and jurors see jurors as passive vessels for each sides stories and evidence. The recent jury verdict against lead paint manufacturers explodes that myth.

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Litigation , Mississippi Construction Law
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Wisconsin passes a right to cure law for home construction defects

Plaintiff's prospective insolvency as grounds for an injunction

The ContractsProf Blog discusses whether potential business insolvency constitutes grounds for an injunction in a breach of contracts case.

Posted In Construction Contracts , Construction Litigation , Mississippi Construction Law , Trial and Litigation Techniques
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Applying Daubert to engineers testimony about defective design

Peter Nordberg over at Blog 702 posts on whether the Daubert standards for scientific expert testimony should be applied to engineering testimony on defective product design.

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Law , Construction Litigation
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He scores...

"In case you haven't been inspired today" see the short video clip linked to over at Ben Cowgill on Legal Ethics.

Posted In Construction Law
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Neutering state law through federal regulation:

"The official White House view has been that the federal government knows better than the states," reports the New York Times(free subscription required).

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Law
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LSU study urges uniform building code adoption in Mississippi

A uniform building code requiring structures be built to withstand Category 3 storms would save thousands of buildings and billions of dollars in economic losses, cutting total damage by 68 percent the next time such a hit the Mississippi coast, according to a LSU Hurricane Center study.

>> Continue Reading Posted In Construction Law , Hurricane Katrina
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No jury trials in New Orleans construction cases this year?

Your cell phone records are for sale!

Blawg Review No. 39

Recovering a settlement from the defendant's insurer

An insurer refuses to defend or otherwise denies coverage to a defendant. The defendant believes it has no liability, but the plaintiff seeks bet-the-house or bet-the-company damages. If the insured settles may the defendant or its assignees recover indemnity from the insurer even though it denied liability?

>> Continue Reading Posted In Construction Law , Insurance
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Recent wetlands permit decisions

Arbitration ordered though no arbitration agreement produced

The U.S. Court of Appeals for the Fifth Circuit held last month that the existence of a written agreement to arbitrate may be proven by testimony if the agreement itself cannot be found. Link

>> Continue Reading Posted In Alternative Dispute Resolution , Construction Law
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Excess insurer's responsibility for defense costs

Marc Mayerson does an excellent job covering the issues and recent court decisions governing defense costs under excess insurance policy forms over at the Insurance Scrawl .

Posted In Construction Law , Insurance
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Hospital building boom

We are "in the middle of the biggest hospital-construction boom in a half-century, a development expected to increase the use of high-tech medicine and add fuel to rising health care costs" reports USA Today.

>> Continue Reading Posted In Construction Law
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Blawg review #38: 10 New Years Resolutions for Legal Bloggers

No duty owed to neighbor in de-watering operations?

Abbott Laboratories removed 122 acre feet of groundwater rather than the 2.07 acre feet authorized by its de-watering permit during construction of a plant basement. The de-watering lowered the groundwater-table and killed the Bray family's pecan tree orchards next door. A clear case of negligence or nuisance?

>> Continue Reading Posted In Construction Law
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Defective construction responsible for almost