Commonsense Construction Law reports on a case in which an unsigned contract meant that the contractual liability exclusion in the subcontractor’s insurance policy would control, since there was no obligation “assumed in a contract or agreement . . . [where the claim] occurs subsequent to the execution of the contract or agreement.”

Stan Martin wrote the article.

“And this was not just a matter of having an agreed contract form which the parties never got around to signing,” he explains. “The subcontract at issue stated that it ‘is not valid without the Subcontractor General Conditions Version 2012-003 signed and agreed to by all parties.’ There was no dispute that the parties had not signed the general conditions.”

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In his Commonsense Construction Law blog, Stan Martin asks the question “How do additional insured obligations work with subcontract flow-down clauses.” And he answers it with one word: “They don’t.”

“Unless the subcontract is carefully drafted, that is. So where the prime contract required the owner to be named as an additional insured, and the subcontract flow-down clause passed along the GC’s obligations to the owner, as the sub’s obligations to the GC, this did not by itself result in a requirement that the sub name the owner as an additional insured. That is one lesson from a New York court decision,” Martin explains.

He discusses Navigators Ins. Co. v Merchants Mut. Ins. Co. at length and concludes with two lessons to be learned.

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It’s important for parties entering into any significant economic transaction to have written contracts. This is especially true for construction projects which are, by their nature, complicated, writes Jason T. Strickland for Ward and Smith, P.A.

A contract on a construction project sets forth the parties’ obligations to each other and determines how risks will be shared or divided on the project.

Strickland explains the value of having a written construction contract, rather than simply an oral agreement. Then he discusses risk shifting, parties to a construction contract, key elements of a construction contract, consistency, flow down and tiers, and industry forms.

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An article written by Matthew DeVries on Burr & Forman LLP‘s Best Practices Construction Law blog illustrates an oft-repeated plea from lawyers: “Please, please, please read your contract.” In this instance, one party’s failure to strictly follow the contractual notice provision was a $209,235.36 mistake.

He describes a case in which a general contractor entered into an agreement with the City of New York Department of Sanitation to construct a garage. “The subcontractor agreed to to furnish and install five elevators for the project. Although the court’s decision does not elaborate on the details, the subcontractor filed suit and was awarded more than $200,000 in damages incurred as a result of delays in performance of the work.”

According to the article,”When you are required to strictly comply with a particular provision or legal requirement, then any departure from that requirement (no matter how insubstantial) can void the claim or provide an absolute defense.”

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Ralf Rodriguez has joined Foley & Lardner LLP’s Construction Practice as of counsel in the Miami office, the firm announced. Rodriguez has international experience litigating including construction law, commercial litigation, white-collar criminal defense and transportation law.

Rodriguez represents domestic and international general contractors, construction managers, sureties and other construction professionals in the United States and abroad in the negotiation, litigation, arbitration and mediation of construction and design defect claims, insurance claims and surety bond claims, among others. He has experience representing clients in zoning waivers, landlord and tenant disputes, environmental compliance, bankruptcy litigation and compliance with the Americans with Disabilities Act. Rodriguez has assisted clients in connection with a variety of construction projects, including sports arenas, high rise condominium developments, manufacturing plants and hydroelectric power facilities. Projects include the Florida Marlins Baseball Park, the Florida Citrus Bowl, the Miami Intermodal Center and the Cerro De Aguila Hydroelectric Power Plant in Peru.

“As our clients look to expand globally, Ralf’s international experience litigating complex construction matters will be an extremely valuable asset,” said Jeff Blease, chair of Foley’s Construction Litigation Practice.

In a release, the firm said:

Rodriguez also represents corporate clients in internal investigations and government inquiries by defending regulatory actions and fraud claims, including advice regarding compliance with anti-corruption laws such as the False Claims Act, the Foreign Corrupt Practices Act and similar legislation. He has worked with numerous corporate clients to structure and reassess corporate compliance and training programs, and has counseled clients to complete numerous investigations of sensitive matters in foreign jurisdictions, including Latin America and the Caribbean.

In addition to his legal practice, Rodriguez served as a law enforcement professional with the Department of Treasury and completed many public corruption and organized crime investigations, while working closely with the U.S. Attorneys’ Office for the Southern District of Florida.

“Ralf’s knowledge and experience will serve our clients well, as the local construction industry continues to boom,” said William Davis, managing partner of Foley’s Miami office.

Prior to joining Foley, Rodriguez was at Peckar & Abramson.

Timeliness is critical when submitting claims to the government, or any contracting party, for that matter — public or private, writes Brian Dobbs for Bass, Berry & Sims PLC. But, as a ruling in Kellogg Brown & Root Services, Inc. v. Murphy demonstrates, the law does not compel contractors to bring claims prematurely. The key is recognizing when the claim has ripened and the clock has begun to tick.

Dobbs writes that Kellogg Brown & Root Services filed a claim with the Army to recover costs associated with a subcontractor’s work on a dining facility in Iraq. The Army denied the claim and KBR appealed to the Armed Services Board of Contract Appeals. On the Army’s motion, the Board dismissed the claim, finding the six-year statute of limitations under the Contracts Dispute Act (CDA) had expired.

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As general contractors take on more projects, they will likely find themselves working with new and unfamiliar subcontractors, warn James T. Dixon, P. Wesley Lambert, Amanda M. Leffler and Amanda P. Parker of Brouse McDowell.

“Whether parties are considering working with a new partner or simply re-evaluating existing relationships with long time partners, the parties should consider how to best allocate the risks associated with each project,” they write.

They discuss some of the key provisions contractors and subcontractors should understand when evaluating the risks allocated through subcontract agreements.

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The protracted time for a construction case to get to trial and the attendant cost and expense has led the construction bar away from the courthouse and into the arbitration room, writes Ira M. Schulman of Pepper Hamilton LLP.

The prudent negotiation of an arbitration clause is as important to an arbitration as jury selection and jury charges are to litigation, Schulman explains.

He offers 10 individual pieces of advice, covering such topics as who can demand arbitration?, where will the arbitration be held?, how much discovery will be permitted?, how much discovery will be permitted?, and modification of award.

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