Best Practices Construction Law

Best Practices Construction Law

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Matt has written articles and given presentations on all aspects of construction law. Find a resource here.

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Best Practices top posts include claims preparation, contract drafting, and litigation pitfalls. You don’t want to miss these ones.

Matthew DeVries

Matt is a construction & litigation attorney at Burr & Forman LLP and father of seven young kids.

Category Archives: Legal Trends

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Project Documentation: The Bad Little Email That Got Produced

Posted in Best Practices, Legal Trends
Believe it or not, there are always a wealth of emails and other documents produced in litigation that help “make the case” for the other side. Take, for the example, the e-mail I found in the files of one superintendent entitled “PROJECT DELAYS” … the words could not have been clearer … “I think we need to begin to tell… Continue Reading

Construction Contracts And Arbitration Provisions: Is The Word “May” Mandatory? Maybe!

Posted in Arbitration, Case Law, Legal Trends
You don’t always say what you mean. And you don’t always mean what you say.  In construction contracts, parties attempt to use plain and ordinary words to describe their respective obligations. As an example, when the parties use the word “shall” in their agreement, they generally understand that the obligation specified is mandatory. Or when parties use the… Continue Reading

Spearin Doctrine: A Construction Case Described in A Tweet!

Posted in Case Law, Claims, Federal Construction, Legal Trends
I read in my Twitter feed this morning about a recent case where the Missouri Court of Appeals formally adopted the Spearin Doctrine. I immediately wondered if I could explain the Spearin Doctrine in less than 140 characters.  Here you go: US v. Spearin: Owner designs. Contractor builds. Owner accepts. Work sucks. Owner sues. Contractor absolved. Owner loses. If… Continue Reading

What Is Inefficient Risk Transfer? The Use of Indemnification in Construction Contracts

Posted in Legal Trends
As a father of seven children, I am always being asked to determine the “responsible party” when something breaks, gets lost, or is simply missing.  In parenting, there is no written contract between the adult and to child to transfer the responsibility for the loss or damage.  In construction, there should be a written contract… Continue Reading

Did the FAR Lose Its Mojo in the Government Contracts World? Depends.

Posted in Case Law, Claims, Federal Construction, Legal Trends
It’s not everyday that you read about one of your longtime heroes, the Federal Acquisition Regulations (“FAR”), losing some of its mojo.  The Nash & Cibinic Report read as follows: “The FAR: Does It Have Contractual Force and Effect?” According to the article, there remains some confusion about the application of the FAR based upon the recent… Continue Reading

How Construction May Be Affected by President Trump’s Executive Orders on Immigration

Posted in Federal Construction, Legal Trends, Legislation
With all the talk about billions of dollars of investment in infrastructure and sweeping reversal of prior executive orders affecting construction labor and federal contracts, it should come as no surprise that President Trump’s recent executive orders on immigration may have an affect on the construction industry. What Happened?  Beginning on January 25, 2017, the… Continue Reading

Texas Court Gobble-Gobbles New Federal Overtime Rules

Posted in Best Practices, Federal Construction, Legislation
On this Thanksgiving Eve, contractors and other employers can take a breathe and gobble down some extra turkey and pumpkin pie without worrying about the new increases in overtime rules. On Tuesday, November 22, 2016, a Texas federal court entered a nationwide injunction blocking the U.S. Department of Labor’s (“DOL”) new federal overtime rules from… Continue Reading

LOL! OMG. HUH? Court Finds That Text Message Can Form Binding Contract

Posted in Best Practices, Case Law, Contract Docs, Legal Trends, Project Management
In the world of Twitter, Facebook and LinkedIn, it is no secret that individuals are communicating regularly on their smartphones about their business affairs. Recently, a court addressed the question about whether a text message can constitute a writing sufficient under the Statute of Frauds to create an enforceable contract. In St. John’s Holdings, LLC… Continue Reading

Subcontractor’s Failure to Strictly Comply With Notice Provision Costs $200,000

Posted in Best Practices, Case Law, Claims and Disputes, Legal Trends, Tennessee
Whether you are an owner, contractor, subcontractor or supplier, you will want to read the rest of this post since it illustrates precisely what all those attorneys have been telling you for years: “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… Continue Reading

Top 7 Factors Affecting Labor Productivity Losses On A Construction Project

Posted in Best Practices, Legal Trends, Project Management, Scheduling
Construction labor is always in the news. Last month, I wrote an article for the Nashville Business Journal challenging industry leaders on how to respond to the shortage of skilled labor in the area.  Recently, the U.S. Department of Labor issued new overtime regulations, which no doubt will affect your workforce.  When you deal with construction… Continue Reading

One Awesome Case Discussing The Difference Between Delay and Disruption Damages!

Posted in Case Law, Claims and Disputes, Legal Trends, Scheduling, Texas, Transportation
Rarely do you find a case that succinctly addresses a construction law issue.  Today, one of my legal alerts pointed me to one such case dealing with delay damages and disruption damages. This is a must read! In County of Galveston v. Triple B Services, LLP, decided on May 26, 2016, the Court of Appeals of Texas… Continue Reading

Between A Rock and A Hard Place: How the Severin Doctrine May Relate to Your Statute of Limitations Period

Posted in Bid Protest, Case Law, Claims, Federal Construction, Legal Trends
I previously blogged about the rules relating to pass-through claims, where a prime contractor’s recovery from an owner for damages suffered by its subcontractor is limited in certain circumstances.  In the post, I talked about a “past-through-plus” claim based upon the Severin doctrine, which provides a prime contractor cannot sue an owner on behalf of one… Continue Reading

Public Owner Recovers Liquidated Damages Even After Terminating Contractor for Convenience

Posted in Case Law, Claims and Disputes, Legal Trends
You can’t have your cake and eat it too.  That’s no fun!  Why even get the cake if you are not allowed to eat it?  Recently, a court held that a public owner could have both a termination for convenience, as well as liquidated damages. In Old Colony Construction, LLC v. Southington, 316 Conn. 202… Continue Reading

Proceed Wisely, Ninja Contractor, Because Suing Your DOT May Have Limitations

Posted in Case Law, Claims, Claims and Disputes, Federal Construction, Legal Trends, Transportation
No self-respecting Ninja goes into battle without a plan, right? You need to know your environment, your opponent and the rules of the battle.  For you Ninja contractors, it’s a good thing to fully understand your potential recovery before you spend countless months and thousands of dollars pursuing a claim against your state DOT for… Continue Reading

If You Settle Your Construction Dispute, Have You Really Settled It?

Posted in Best Practices, Case Law, Legal Trends
Just this weekend, after breaking up a Minecraft dispute among four my young children, I sent them back to the world of digital building. Within minutes, they were fighting again. Makes you wonder about whether you have really settled the dispute after you have settled the dispute? The Court of Appeals of Tennessee recently addressed… Continue Reading

Do Your Employees and Construction Laborers Belong to You? Depends.

Posted in Best Practices, Federal Construction, Legislation
When walking through the mall or the grocery store with my children, I inevitably get asked, “Are they all yours?”  Depending on my mood, I may or may not claim them all.  As a general contractor, you will want to know the law on whether laborers hired through a staffing company will be considered “yours”… Continue Reading

Provide Notice (and 10 Other Tasks) When Pursuing a Construction Claim

Posted in Best Practices, Case Law, Claims and Disputes, Project Management, Scheduling
When dealing with construction claims—whether one for construction defects, outstanding payment, or delay damages—an initial hurdle is making sure that proper notice has been given.  Generally, you have to make sure that you comply with the contract or insurance provisions by: (1) giving written notice of the claim; (2) to the correct party; (3) within… Continue Reading

Which Insurance Carrier Is Responsible for Damages on a Construction Project? Depends.

Posted in Best Practices, Case Law, Legal Trends
There are multiple types of insurance coverage for the various risks on a construction project.  However, when there are multiple insurance carriers covering the same risk (i.e., general liability, builder’s risk, workers’ compensation, professional liability) over different periods of time, there may be a dispute as to which carrier covers the loss. In a recent… Continue Reading

What the Supreme Court’s Decision on the Same-Sex Marriage Ban Means to Contractors?

Posted in Case Law, Legal Trends
Absolutely nothing! … to contractors that is … but to employers … a different answer. Okay, so the Supreme Court recently ruled that state laws banning same sex marriage are unconstitutional under the 14th Amendment to the United States Constitution. You may have your own personal opinion against or in support of the Supreme Court’s… Continue Reading

Revised AAA Construction Rules Take Effect July 1, 2015

Posted in Alternative Dispute Resolution, Arbitration, Legal Trends, Mediation
The past week has been one of sweeping changes. (…no comment…)  But one set of non-controversial changes is the Revised Construction Industry Arbitration and Mediation Procedures released by the American Arbitration Association. The Rules, which take effect July 1, 2015, can be downloaded here.  The major revisions include: A mediation step for all cases with… Continue Reading

“New” Means “New” When the Construction Contract Says “New”

Posted in Best Practices, Case Law, Federal Construction, Legal Trends
There’s “new.” And there’s “new to you.” And there’s “refurbished new.” And there’s “open box special new.” And there’s “floor display model new.”  But when it comes to contract specifications requiring “new” equipment, one court looked to a dictionary to define it as “never used before” and “free of significant damage.” In a recent case,… Continue Reading