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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Slow as a Turtle? “No Damages For Delay” Clause Inapplicable to Contractor’s Claim Against Architect

Posted in Best Practices, Case Law, Claims and Disputes
On Saturday, I took the kids to the zoo for a day-long adventure.  Faith’s favorite attraction was the turtle compound that was filled with about 20 slowpokes walking a circle.  Like watching paint dry, we sat on the sidelines as these mini-dinosaurs trekked the park at a whopping .25 mph. When we think of delays… Continue Reading

“Was Not” versus “Is So”: Court Clarifies Whether Exceeding Monetary License Limit Affects Contractor’s Recovery

Posted in Legal Trends, Tennessee
After a great extended weekend on the beaches of Florida, we embarked upon the drive back to Nashville with six kids.  Despite the clearly defined travel rules, the antagonizing kid was putting his feet on the emotional kid. The creative kid was writing on the seat with markers, while the perfect kid screamed foul.  The lazy… Continue Reading

Active Interference Wins Skee Ball Points and Precludes Enforcement of A “No Damages for Delay” Clause

Posted in Case Law, Claims and Disputes, Contract Docs, Legal Trends
Last week during family skate night, my daughter asked me for two quarters to play some Skee-Ball.  I loved playing that game as a kid.  But imagine my surprise when I turned the corner and witnessed her active interference with the rules of the game! (… Truly, you can’t script this stuff…) In construction contracts, “active… Continue Reading

Words and Numbers: Contractor Forfeits Bid Bond When It Mistakenly Leaves Out “Thousand” Word

Posted in Alabama, Case Law, Legal Trends
Contractors make mistakes with words.  Contractors make mistakes with numbers.  And sometimes, a mistake with words leads to a mistake with numbers. In Clark Construction Co. v. Alabama Highway Department, a highway contractor tried to withdraw its bid on public contract and have its bid bond returned after it made a mistake on a its… Continue Reading

How Important Is That Little Green Card? Pretty Darn Important Says One Court.

Posted in Case Law, Claims and Disputes, Georgia, Legal Trends
We live in a world of e-mails, IMs, texts, Snapchats, Instagrams and the occasional fax.  Although information is transmitted instantaneously in today’s environment, proof of receipt of that information (often called “Notice”) remains subject to some very strict rules imposed by contract, case law or statute. Notice of Claims.  In a recent transportation case involving a… Continue Reading

Additional Insured Status: Playing the Speak-Out Game on a Construction Project

Posted in Best Practices, Case Law, Legal Trends
Last weekend we played Speak-Out: Kids versus Parents, a game where you use a plastic thingy to obstruct your speech capabilities.  The winning team is the one that guesses the most phrases.  Reading and understanding an insurance policy on a construction project can be a lot like understanding my kids playing Speak Out.   Proper insurance coverage… Continue Reading

My Daughter Gets No Devastation Damages…And Neither Do You Government Contractor!

Posted in Case Law, Legal Trends
Our middle child of seven kids suffers from classic Middle Child Syndrome.  She has the largest heart in the family, and yet every other minute is a moment of devastation, wrought with feelings of neglect, resentfulness and sadness.  We love her and we have empathy, but—like government contractors who sometimes feel burned—there are no devastation damages… Continue Reading

Disney Dad Reports About New Limitations Period for Construction Claims in Florida

Posted in Best Practices, Case Law, Legal Trends, Legislation
As a father of seven children, my wife has often accused me of being Disney Dad−something to do with the allegation that I am the “fun” parent who takes the children to movies all the time, serves ice cream for breakfast, and lets them sleep in their clothes at bedtime.  Never have…never did. While having nothing… Continue Reading

“Paid in Full” Wives’ Tale True? When Endorsing A Check, Yes Ma’am!

Posted in Best Practices, Case Law, Claims and Disputes, Legal Trends
Long before I was an attorney, I heard this tale that if you endorsed a check that had the words “PAID IN FULL” written on the check, then you were accepting the check as full payment of what was owed.  But I had never really thought about that legal principle because, “People don’t really do… Continue Reading

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