Construction Defect Dispute Governed by Contract Disputes Act Not Yet Suited to Being a ‘Suit’

A recent ruling provides an unfortunate example of what can happen when a contractor does not consider commercial general liability when making strategic decisions throughout the process of investigating and repairing construction defects, writes William Bennett in a web post for Saxe Doernberger & Vita.

The post continues:

The Southern District of California recently held that a series of demands for a general contractor to investigate and repair several construction defects at a U.S. Army facility did not constitute a “suit” within the meaning of the general contractor’s commercial general liability (“CGL”) policy.

In Harper Construction Co., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., the U.S. Government hired Harper Construction Company (“Harper”) to construct a U.S. Army training facility for the Patriot Missile System in Fort Sill, Oklahoma. No. 18-cv-00471-BAS-NLS (S.D. Cal. Mar. 28, 2019). During the project, Harper hired Harper Mechanical Contractors (“Harper Mechanical”), an independent company, as a subcontractor “to perform demolition, grading, and other work at the Project.”

After Harper completed the project, the government informed Harper of property damage at the project, “including, but not limited to, gypsum wallboard cracks and binding doors.” Harper attempted to repair the issues, but the problems continued. The issues were apparently the result of Harper Mechanical’s grading work. Subsequently, the government sent two letters requesting an investigation and asking Harper to “propose a plan to correct the issues.” As Harper undertook an investigation spanning multiple years, the government became increasingly frustrated with the delays. The government threatened to initiate “formal administrative recourse” and to demolish the project, forcing Harper to re-build from the ground up. It also sent Harper another letter requesting Harper submit a formal proposal to correct the issues.

Harper’s general liability carrier was National Union Fire Insurance Company of Pittsburgh, PA (“National Union”). Harper Mechanical was listed as an additional insured on Harper’s policy. Four years after the government’s first notification to Harper of the issues with the project, Harper’s broker submitted a claim to National Union. The broker noted that Harper was seeking additional insured coverage for Harper Mechanical under Harper’s own policy for investigation and repair costs resulting from Harper Mechanical’s work.

National Union issued a reservation of rights letter and sought more information from Harper. The parties corresponded for the next year and half, until National Union issued a denial letter indicating that there was not a “suit” against Harper seeking damages because of “property damage,” based on the policy’s definition of “suit.”

The policy contained the standard ISO CGL definition of “suit,” which is defined, in pertinent part, as “a civil proceeding in which damages because of … ‘property damage’ to which this insurance applies are alleged. ‘Suit’ includes: … b. Any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent.”

Harper sued National Union. National Union moved for summary judgment. In opposition, Harper argued that the government’s demand constituted a “suit” because the demand falls within the Contract Disputes Act (“CDA”), which includes administrative and court proceedings and qualifies as “any other alternative dispute resolution proceeding” under the policy definition. The CDA applies to “contracts made by an executive agency for, among other things, the procurement of construction … of real property.”

The court acknowledged that the CDA applied to the contract, given the Army’s status as an executive agency. However, the CDA does not automatically consider all disputes to constitute a “claim.” A dispute does not become a “claim” unless one of the contracting parties issues a “[w]ritten demand or written assertion … seeking … the payment of money in a sum certain,” at which point “each claim by the Federal Government against a contractor relating to a contract shall be the subject of a written decision by the contracting officer.” Without the claim being “submitted for a written decision by the contracting officer, which is the first step in the dispute resolution process under the CDA,” the court determined that there was “no evidence that Harper was faced with a “civil proceeding in which damages … are alleged” or “any other alternative dispute resolution proceeding,” as required by the policy’s definition of “suit.” The court also noted that there was no evidence that National Union had consented to any of the processes involved in the dispute, which is a further requirement of the definition of “suit.”

The court granted summary judgment for National Union based on the conclusion that the CDA demands did not constitute a “suit.” This case is an unfortunate example of what can happen when a contractor does not consider coverage when making strategic decisions throughout the process of investigating and repairing construction defects. The result could potentially have been favorable for Harper had it notified National Union early (and often) of the issues, involved coverage counsel to work with its defense and/or general counsel to strategize about how to cast the proceedings as a “suit” under the CDA, and followed the proper channels under the CDA to solidify its position that the parties were involved in ADR proceedings under existing California law.



Call-Back Periods in Call-Back Warranties: Confusion on Other Warranties in Construction Contracts

ConstructionAmanda Garza of Porter Hedges, writing in the firm’s Texas Construction Law blog, explains the use of a “call-back warranty.”

“A call-back warranty establishes a period of time after the substantial completion of a project within which an owner can call upon a contractor to correct nonconforming work. The length of the ‘call-back period’ is typically one year but is ultimately determined by the language in the call-back warranty.”

She explains that the rights and obligations expire at the end of the call-back period, which can lead to some confusion about the effect on other warranties in the contract.

Read the article.



Three Global Drafting Considerations for International Construction Contracts

Globe - InternationalU.S. contractors should proceed with caution when seeking to expand their footprint to an international stage, especially in developing countries where the local infrastructure may not promote a sustainable, stable environment, or a sustainable business model for the contractor, warns Rachael E. Stack in a website post for Faegre Baker Daniels.

But by considering three factors, contractors can mitigate exposure to the various risks involved in an international project.

Stack discusses the elements of contract form and language, governing law, and impact on the local community.

Read the article.




The Importance of a Mediation Provision in Construction Contracts

Mark A. Cobb of Cobb Law Group writes that whenever he’s negotiating construction contracts on behalf of a client or discussing a construction collection matter with a potential client, the conversation inevitably includes a discussion of the construction contract’s dispute resolution clause.

In an article in the Georgia Construction, Bond & Lien Law Blog, he discusses several of the questions that can arise; e.g., What is a dispute resolution clause and why is it important? What types of construction contracts should include the clause? What are construction arbitration and mediation?

He also offers an example of a mandatory mediation provision.

Read the article.



What Should be in Every Construction Agreement

ConstructionParties to a construction project can have a better agreement by addressing six topics described in a post in The Lien Zone blog.

Alex Barthet, author of the post, advises contract drafters to define the scope of the work that will be provided, list all the exclusions, explain the change order process, verify the schedule, refine the dispute resolution procedure, and make sure the winner gets legal fees.

Read the article.



Arbitration Award ‘Irrational’ Because It Disregards Contract’s Plain-Text to Reach a Just Result

The Ninth Circuit has ruled in a contract arbitration case that incorporated multiple Federal Acquisition Regulation clauses that govern the recovery of expenses in the event a contractor is terminated for convenience, i.e. required documentation and procedures.

Pepper Hamilton’s Constructlaw blog discusses Aspic Eng’g & Constr. Co. v. ECC Centcom Constructors LLC, in which an arbitrator had awarded Aspic more than $1 million. The arbitrator concluded that Aspic was not required to strictly comply with the FAR requirements based on several factors.

“The crux of the decision turns on whether the arbitrator’s decision draws its essence from the contract. The Ninth Circuit also explained that whether the award directly conflicted with the subcontracts was insufficient—on its own—to vacate the award,” the blog post explains.

Read the article.



What Not to Do: Construction Contractor Charged With Lying to OSHA

A post in the Seyfarth Shaw Workplace Safety and Environmental Law Alert Blog discusses the case of a construction contractor facing a perjury charge after he allegedly testified that he did not twice order employees to work on a roof. They fell through the roof both times.

During the investigation, OSHA discovered text messages indicating that the contractor had indeed issued the orders.

The case provides two important lessons, according to the authors of the post: Don’t lie under oath, especially when there exists discoverable evidence to the contrary, and be properly prepared and familiar with all relevant facts before providing testimony or statements during an investigation.

The contractor faces a potential penalty of five years in a prison and a $250,000 fine, if convicted.

Read the article.



12 Things to Consider When Negotiating a Construction Demolition Contract

A client alert from Neal, Gerber & Eisenberg offers some advice on negotiating a demolition contract. Such contracts can arise when a big box retailer or a shopping center needs to be demolished to make room for a building more suited to a new use.

The article’s advice covers 12 topics, including the selection of the demolition contractor, dates of commencement and completion of the work, contract documents, the contract sum, payments, dispute resolution, insurance and bonds, indemnification, termination rights, the contractor’s warranty, safety compliance, and disposal of debris.

Read the article.



Appeals Court Allows Quick-Take of Land for Mountain Valley Pipeline

The 4th U.S. Circuit Court of Appeals has upheld the “take first, pay later” approach to building the Mountain Valley Pipeline, in which the company condemned private property in the project’s path before paying opposing landowners for their losses, reports The Roanoke Times.

Reporter Laurence Hammack writes that the ruling was a blow to pipeline foes, who have long decried the use of eminent domain to take parts of family farms and rural homeplaces to make way for a 303-mile natural gas pipeline through West Virginia and Virginia.

Landowners did not contest the laws that allowed the pipeline company to obtain forced easements through nearly 300 parcels in Southwest Virginia, but they objected to a lower-court ruling granting immediate possession of the disputed land before deciding how much each property owner should be compensated, Hammack explains.

Read the article.



Parties Must Proceed to Arbitration Despite Unavailability of Arbitration Forum Specifically Named in the Contract

An Ohio appellate court has addressed an issue that arose when an arbitrator specified in a contract is no longer available.

Pepper Hamilton’s Constructlaw blog covers the case in which a homeowner sued a contractor, alleging unjust enrichment and fraud. The contractor moved to compel arbitration under the agreement arbitration provision. But the specified arbitrator, the Ohio Arbitration and Mediation Center, appeared to be defunct.

“Because it was still possible to arbitrate the issues, the Court determined the agreement was not unenforceable due to impossibility,” writes Ryan R. Deroo. “The Court explained that this conclusion was consistent with the intent of the parties as they agreed to arbitrate disputes, and a change in forum should not override the fundamental purpose of the arbitration provision.”

The appellate court directed the trial court to appoint another arbitrator.

Read the article.




Jordan, Lynch & Cancienne Wins Take-Nothing Decisions in Texas, Louisiana

Trial lawyers with Jordan, Lynch & Cancienne PLLC scored big defense wins recently for two separate clients, securing a quick summary judgment for The Dow Chemical Company in Texas and prevailing in a jury trial for Union Carbide Corporation in New Orleans.

In the Texas case, MMR Constructors Inc. tried to claim an additional $17 million from Dow after it had already paid MMR for work on its plant in Freeport, Texas. That case ended with a summary judgment for the defense.

And in the New Orleans case, jurors heard three weeks of testimony related to the death of an oil field worker who died of mesothelioma. The jury found Union Carbide and Montello were not responsible.

Read details of the cases.



Court Holds That Arbitration Clauses Bind Nonsignatories Who Seek to Enforce Contracts

A post on the website of Pepper Hamilton describes a North Carolina case that involved non-signatories to a construction contract attempting to avoid the contract’s arbitration claim.

When the building’s current owner asserted various claims against the original owner, architect and general and subcontractors, the general contractor moved to have the suit dismissed on the ground that they were subject to arbitration. Plaintiffs argued that the arbitration clauses were not binding on them because the contracts that contained them were not assigned to plaintiffs when they purchased.

“The court held that the plaintiffs’ argument could not be squared with the language of the Contractor Warranty. On its face, the Contractor Warranty stated that [the general contractor] performed all work ‘in accord with the Contract Documents.’ This express reference to [the contractor’s] construction contract put the plaintiffs on notice of the contract’s existence,” explains the article’s author, Jane Fox Lehman.

Read the article.



West Mermis Named to National Best Law Firms for 2019

Houston-based construction and business litigation firm West Mermis, PLLC, has earned national recognition among the Best Law Firms in the country by U.S. News & World Report and The Best Lawyers in America.

The firm was selected to the 2019 list of construction litigation firms recognized nationally, and in the Houston metro area, West Mermis is ranked in the top tier of such law firms.

The U.S. News – Best Lawyers selection process involves a lawyer survey and feedback from clients on a firm’s expertise, responsiveness and cost-effectiveness along with other questions.

Read details about the award.






Interpreting Indemnity Provisions in Construction Contracts

Liability in the construction process is usually determined and allocated by contract, explains a post on the website of Faegre Baker Daniels LLP.

“It is quite common for construction contracts to contain indemnity provisions requiring one party to defend and reimburse the other against various expenses or losses. When contracts include express indemnity provisions, they will likely receive more attention, and be the subject of more negotiations between counsel, than any other provisions. Yet, if pressed to state what it means to ‘indemnify’ or ‘hold harmless,’ many are at a loss,” according to the firm.

The post discusses strict construction, express negligence, and the liberal or fair construction rule.

Read the article.



Contract Roulette: The Top Five Agreements That Get Businesspeople into Trouble

You can do a lot of damage with a signature, warns Jack Garson of Garson Law LLC in Bethesda, Maryland. You can go broke.

In an article on the website of Forbes, he discusses five types of contracts that have caused the most disasters.

First, he warns of the dangers of assuming that leases are standard, so there’s no reason to read every clause.

On the subject of loan agreements, Garson’s advice is to negotiate, consult advisors, and bargain. Most of all, he adds, get the right to prepay the loan.

He also covers construction contracts, partnership agreements, and personal guarantees.

Read the article.



Teaming Up? Avoid Unenforceable Agreements to Agree

ConstructionThere is a growing trend in the construction industry wherein contractors, subcontractors and designers are working together to pursue large construction projects, according to a JD Supra post by Snell & Wilmer.

“The terms of these collaborations are typically referred to as ‘teaming agreements’ which are intended to define the relationships, rights and responsibility of all parties involved during both the pursuit of the work and, if ultimately successful, the performance of the project including the financial remuneration,” the post explains.

It continues: Your goal in drafting these agreements is to define the relationship, the rights and responsibility of all parties involved on the “team” during both the pursuit of the contract and, if the contract is awarded, the performance of the project.”

Read the article.



Minimum Volume Commitments in the Midstream Industry

Oil and gas pipelineMinimum volume commitment contracts (MVCs), often referred to as throughput agreements, are agreements under which a shipper or producer—a counterparty—undertakes to transport an agreed minimum volume of a commodity such as natural gas, NGL or crude oil through a third-party operator’s assets, such as pipelines or processing plants, over a specified period, explains a post on the website of Opportune.

“In the midstream industry, these contracts are typically utilized to enable the operator to recoup the costs of constructing infrastructure, such as a processing plant or pipeline lateral, for the benefit of the counterparty. Under these agreements a counterparty pays a shortfall or deficiency fee if the MVC is not met for a specified period—monthly, quarterly or annually,” the authors write.

Read the article.



Construction Arbitration: The Pros and Cons

Building constructionIt’s an unfortunate fact that many construction projects end in disputes, driving the parties into some form of dispute resolution, writes Jason T. Strickland, a litigator with Ward and Smith.

Many of these construction disputes are resolved through arbitration, he writes in a web post.

His article explains how arbitration is different, the major differences between arbitration and lawsuits, court involvement in the arbitration process, avoiding unfavorable local law, and third-party administration of arbitration.

Read the article.




Texas Court Construes Breach of Contract Exclusion Narrowly in Duty-to-Defend Case

In a victory for policyholders, a recent decision from the Western District of Texas narrowly construed a common breach-of-contract exclusion and held that the insurer had a duty to defend its insured against an underlying lawsuit over construction defects, according to the Hunton Insurance Recovery Blog.

“The allegations potentially supported a covered claim, as the conduct of the insured’s subcontractor could have been an independent, ‘but for cause of the property damage at issue, thereby triggering the insurer’s duty to defend’,” explain Lorelie S. Masters and Tae Andrews.

“Many CGL policies have similar or identical breach-of-contract exclusions,” they write. “Longstanding principles of law regarding the duty-to-defend analysis hold that exclusions should be narrowly construed against the insurer and in the insured’s favor, and that when making a duty-to-defend analysis, any doubts or ambiguities should be resolved in the insured’s favor.”

Read the article.



AIA Changes – It’s Time to Convert Before It’s Too Late

Jeffrey M. Reichard of Nexsen Pruet offers a reminder that the American Institute of Architects (AIA) will discontinue support of older versions of its most popular standard form contracts after Oct. 31, 2018.

“This means you will no longer be able to create, edit or even finalize a 2007 AIA document after that date,” he warns. “If you haven’t already done so, now is the time to convert your standard form contracts to the 2017 versions.”

He writes that one important change is the creation of a new insurance exhibit which changes and expands the terms related to insurance coverage previously included in the body of the A201.

Read the article.