Practice Areas & Industries: Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

Practice/Industry Group Overview

Counseling. Contract Negotiation.
Mediation. Arbitration.
Litigation.

Our Construction Group has earned a national reputation for excellence in public and private projects throughout the United States and several international venues.

The experience of Baker Donelson's Construction Litigation Group covers all aspects of private and public construction projects. Our attorneys work with every type of owner and decision-maker involved in the construction business: developers, contractors, subcontractors, suppliers, equipment lessors, design professionals, sureties, insurers and consulting and management firms. Baker Donelson strives to employ a creative, proactive and business-minded approach to counseling clients and assists with all phases of the project, from design and planning, contract negotiation, preparation and review, bidding, construction, dispute avoidance, claims and dispute resolution.

Baker Donelson's construction attorneys have participated in a wide range of construction matters and projects throughout the United States and in various international venues. Our attorneys have handled construction disputes at all levels of trial and appellate litigation, as well as through mediation, arbitration and other ADR techniques structured to resolve disputes efficiently for our clients. Additionally, our attorneys have earned a national reputation for excellence: Members of the Group are Fellows in the prestigious American College of Construction Lawyers, are listed in Best Lawyers in America, have been selected for and serve on the American Arbitration Association's National Panel of Construction Arbitrators for Large and Complex Cases, and are registered design professionals.

Services Available

Contract Negotiation and Project Representation

A well-drafted contract is often the best defense against litigation. Baker Donelson's construction attorneys have more than one hundred years' combined experience handling construction and development projects from idea inception through project completion. We call upon this experience in negotiation, working to craft a contract or agreement that reflects the needs and concerns of each particular client. As part of our comprehensive approach to client service, construction attorneys often work with other practice groups to develop tax and financing savings for our clients.

Baker Donelson's Construction attorneys analyze and advise on issues such as insurance requirements, indemnity provisions, liquidated damages and performance and schedule guarantees. We also negotiate rights relating to unforeseen conditions, defective or non-conforming work, time extensions, progress and final payments, warranty and lien claims, additional compensation and project closeout.

Our Construction attorneys also advise clients regarding numerous aspects of project completion, litigation avoidance and general business issues. Our representation includes land and major equipment acquisition, loan documentation and financing, labor relations, and regulatory and administrative reviews on behalf of clients involved in proceedings before OSHA, EPA and various state environmental agencies.

From the first contract discussions through project completion, Baker Donelson's Construction attorneys use their industry knowledge to develop and protect the rights of all types of construction clients.

Dispute Resolution

When disputes arise, clients turn to the extensive experience of Baker Donelson's Construction Group. We have handled construction matters in all tiers of the state and federal court systems, as well as before state and federal administrative agencies and contract appeals boards. Claims handled include:

• Delay and disruption;
• Actual and constructive acceleration;
• Lost labor and equipment productivity;
• Incomplete or defective design;
• Warranty of specification suitability;
• Inadequate and uncoordinated project management;
• Excessive changes (cardinal change);
• Impossibility and commercial impracticability;
• Differing site conditions;
• Slope and shoring failures and other soils-related problems;
• Denial of site access;
• Defective materials and equipment;
• Improper inspection;
• Failures of concrete and other structural elements;
• Safety violations;
• Rejection and repair of non-conforming work;
• Environmental hazards;
• Mechanic's liens, materialman's liens and bond claims;
• Payment and performance bonds (including federal Miller Act and state Little Miller Act bonds);
• Additional compensation and extensions of time;
• Relief from imposition of liquidated or actual damages; and
• Default termination.

In certain cases, the costs of litigation outweigh the value of the claim. Baker Donelson's Construction attorneys have in-depth experience in the areas of mediations and arbitrations. A member of the Group currently serves on the American Arbitration Association's National Panel of Construction Arbitrators for Large and Complex Cases.

Representative Matters

Contract Negotiation and Project Representation

• Represented a joint venture entity that constructed a $900 million automobile manufacturing facility in the Southeast. Assisted in all phases of project including contract negotiations with owner, subcontractors, vendors, suppliers, and local, state and federal agencies.
• Retained by a worldwide energy services company and its power generation subsidiary to perform a risk and condition assessment of a suspended $241 million project involving the design and supply of boiler islands for a coal-fired thermal power plant located in Tanjung Jati B, Indonesia. Analyzed relevant contracts and documents to provide comprehensive advice to clients' management and counseled in decisions regarding the possible resumption of the project.
• Represented a large steel producer in the closure of an existing mill and relocation of equipment, facilities and personnel to another site within Southeast. Assisted in all phases of project, including contract negotiations with subcontractors, suppliers, vendors and local, state and federal regulatory agencies.
• Represented the owner in the procurement of property and construction of public/private golf course in Southeast.
• Represent the owner/developer of large lifestyle centers throughout United States.
• Represented the owners and developers in procurement of suitable sites and construction of light, medium and heavy commercial, retail, medical, industrial, recreational and luxury resort projects throughout the United States.

Dispute Resolution

• Represented one of the world's largest privately held chemical companies in connection with a $37 million dispute arising from a major expansion of production facilities at its chemical manufacturing plant in the Gulf Coast.
• Represented a leading global provider of comprehensive technology, engineering, procurement, construction, maintenance, fabrication, manufacturing, consulting, remediation and facilities management services in connection with a $55 million dispute arising from work performed and services provided for an estimated $900 million expansion of a petroleum refinery in Louisiana. The dispute included issues of delay/disruption, breach of contract, fabrication related claims, unpaid invoices, unfair trade practices and fraud.
• Represented a large aluminum and chemical manufacturer in connection with a $25 million dispute with a design, procurement and construction contractor and its professional liability insurer arising out of the reconstruction of the manufacturer's Gulf Coast alumina production facility, which had been destroyed in an explosion.
• Represented a major insurance company in connection with a dispute arising from the expansion of its home office facility in Louisiana. Dispute involved the contractor's surety, the roof system manufacturer and the project design professional regarding the installation of a defective metal standing seam roof and the construction of a defective underlying roof structure.
• Represented a large industrial contractor in connection with a dispute arising out of the industrial contractor's erection of a major recovery boiler on the West Coast.
• Represented a large industrial contractor in connection with a dispute regarding the contractor's erection of two heat recovery steam generation units in Oklahoma.
• Represented a Gulf Coast pipeline contractor in an arbitration claim against the owners to recover $6 million in damages for extra work and for delay and disruption of its contract to construct a natural gas pipeline and associated facilities in New England, as well as defended the pipeline contractor against the owner's counterclaims of approximately $3 million. The claims and defenses involved almost every aspect of pipeline construction. In addition, the prosecution and defense required the contractor to overcome a differing site conditions clause, a "no damages for delay" clause, a notice provision, specific change orders and a liquidated damages clause.
• Represented a Gulf Coast nonprofit in a lawsuit arising out of a defective roof that was improperly installed, resulting in property damage from the defective, non-conforming work.
• Represented a professional architecture firm in a $10 million dispute regarding the construction of a baseball stadium in Louisiana. The dispute involved claims of delay, acceleration, lost profit, and design errors and omissions.
• Represented a regional grading and paving subcontractor in arbitration action against a general contractor seeking balance of contract price withheld for alleged delay. Obtained award for full contract price plus attorney fees under Tennessee's prompt payment act.
• Obtained favorable settlement following mediation for the owner of hotel project in action against general contractor for delay and lost profits.
• Successfully represented a roofing contractor in arbitration against public housing authority for payment withheld over alleged defective work on numerous roofs.
• Served as Tennessee counsel for more than 25 years to various national title insurance companies in the defense of mechanic's and materialmen's liens filed against insured properties.
• Represented the prime contractor on earthwork contract for the construction of a runway at the Memphis-Shelby County International Airport in litigation for delay damages and cost overruns of more than $14 million as a result of undisclosed site conditions, changes in course and scope of work and active interference. Obtained a favorable settlement following mediation.
• Represented a general contractor in action against subcontractor as to cause of the collapse of masonry walls and poor workmanship during the construction of a building to house a store for a national electronics retailer. Obtained jury verdict for general contract and subsequent award of attorney's fees from court.
• Represented the prime contractor on earthwork contract as to the construction of the Nashville Superspeedway on claim of subcontractor for increased construction costs.
• Successfully defended the owner of commercial facility in claim by roofing contractor for repairs made at chemical fertilizer storage facility.
• Represented a lender in litigation related to priority between lien of deed of trust and mechanic's and materialmen's liens in excess of $7 million.
• Represented a national general contractor in a dispute with large national healthcare owner regarding the suspension and eventual resumption of projects in more than 20 states.
• Represented the owner of a one-of-a-kind Midwest explosives facility which manufactured air bag igniters in a dispute with an EPC contractor over multi-million dollar cost overruns. The matter was resolved following a week-long mediation/summary trial.
• Represented the owner of a major industrial/chemical plant against the general contractor in connection with work-quality issues, schedule delays and cost charges.
• Defended an architect in a claim related to the alleged improper design of an assisted living facility, resulting in a verdict that was a small fraction of plaintiff's demand.
• Successfully defended a regional engineering firm against allegations of improper design of a sewer lift station, a public school and purported negligent administration of the construction phase of a health clinic facility. All matters were either settled on favorable terms or dismissed.
• Represented multiple high-rise hotels in New Orleans in connection with construction defects, including roof defects, curtain wall and window deficiencies, structural insufficiencies, and noise and vibration problems.