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|EPA Proposes to Delete Reference to Superseded 2005 ASTM Standard from “All Appropriate Inquiry” Rule|
Christopher P. McCormack; Pullman & Comley, LLC;
July 4, 2014On June 17, 2014, the United States Environmental Protection Agency published a proposal to delete reference to the 2005 version of the ASTM Phase I environmental site assessment standard from the federal “all appropriate inquiry” rule. This proposal would resolve a widely-criticized...
|Can a Contractor Hold a Subcontractor to its Bid|
Eugene J. Heady; Smith, Currie & Hancock LLP;
July 2, 2014, previously published on June 6, 2014The Contractor was preparing to bid on a school project. On the day of the bid, a Subcontractor submitted its bid to the Contractor to perform the paving work on the project. The Subcontractor’s bid was submitted by telephone on the day that the Contractor had to submit its bid to the school...
|Court of Appeal Considers Net Contribution Clauses|
Dentons Canada LLP;
July 2, 2014, previously published on June 10, 2014The recent Court of Appeal decision of West and Another v. Ian Finlay & Associates  EWCA Civ 316 overturned the first instance decision and found that a net contribution clause contained in an architect's appointment with domestic clients (the Wests) relating to a domestic property was...
|The Second District Issues Useful Case Relative to Commercial General Liability for Construction Defects, Clarifying CA law on Concept of “Property Damage” and “Impaired Property”|
John H. Podesta; Murchison & Cumming, LLP;
July 1, 2014, previously published on June 17, 2014In this recent case, Regional Steel v Liberty Surplus, the subcontractor/steel fabricator, supplied steel seismic tie hooks that were the wrong angle (90 versus 135 degrees). The subcontractor sued the owner and GC for non-payment of the contract, which was followed by a cross complaint back...
|Maryland Federal Court Rules That An Arbitration Provision In A Construction Contract Giving Only One Party The Right To Select Arbitration Is Unenforceable|
Michael C. Zisa; Peckar & Abramson, P.C.;
June 27, 2014In a recent United States District Court for the District of Maryland decision, U.S. ex rel. Birckhead Electric, Inc. v. James W. Ancel, Inc., 2014 WL 2574529 (D. Md. June 5, 2014), the Court found that an arbitration provision in a construction contract that binds only one party is unenforceable....
|The New Maine General Hospital - The Gold Standard in Maine|
Michael R. Bosse; Bernstein Shur;
June 25, 2014, previously published on June 17, 2014Construction lawyers like me are used to encountering construction projects gone bad, and sometimes, headed directly toward litigation. In this column, I wanted to focus on a large-scale recent project in Maine that was an enormous success: the new Maine General hospital. I will highlight two of...
|Supreme Court of Texas Finds Contractors Cannot Recover Delay Damages for Negligent Misrepresentation Against an Owner’s Architect in a Case That Highlights the Economic Loss Rule|
Lee C. Davis, Nkoyo-Ene Effiong, Juan C. Garcia; Sutherland Asbill & Brennan LLP;
June 24, 2014, previously published on June 23, 2014On June 20, Texas joined a number of states that apply the economic loss rule to damages claims arising from negligent misrepresentation between contractors and the owner’s architect. In LAN/STV v. Martin K. Eby Construction Company, Inc., No. 11-0810,1 the Supreme Court of Texas reversed the...
|Are Your Construction Contracts' Forum-Selection and Choice-of-Law Clauses Enforceable?|
Kent W. Lindsay, Daniel D. McMillan, Andrew D. Ness, Kevin O'Brien, Stephen V. O'Neal; Jones Day;
June 24, 2014, previously published on June 2014While typically relegated to the last pages of a construction contract, forum-selection and choice-of-law clauses control every aspect of the parties' respective obligations and liabilities undertaken on a project. Issues like payment, suspension of work and termination, good faith and fair...
|Oregon Supreme Court Tackles Statute of Repose for Construction|
Timothy John Repass; Wood, Smith, Henning & Berman LLP;
June 24, 2014, previously published on May 29, 2014Contractors and their counsel should take note of these two decisions, as they will affect the duration of contractors’ exposure to construction defect claims under Oregon’s statute of repose. In the absence of written acceptance, the ten year limitations period of Oregon Revised...
|Federal Circuit Provides Guidance on Differing Site Conditions Claims and Broadens the Scope of the Implied Covenant of Good Faith and Fair Dealing|
Kirk J. McCormick; Hinckley, Allen & Snyder LLP;
June 20, 2014, previously published on June 18, 2014A recent decision by the Federal Circuit Court of Appeals represents a major triumph for contractors pursuing certain types of claims against the Federal Government. In Metcalf Construction Co. v. United States, 742 F.3d 984 (Fed. Cir. 2014), the Federal Circuit reinforced the principles underlying...