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Choice of Law Provisions in Construction Contracts

October 07, 2024 — Victoria Davies - ConsensusDocs
If you have used a ConsensusDocs® construction agreement or another industry association construction agreement for one of your projects, you are accustomed to seeing the laws of the state where the construction project is located as the governing law. There are good reasons for the laws of the state where the project is located to govern the construction agreement for the project. Even if not headquartered in the state, the parties have a presence there by virtue of their participation in the project in the state. Personnel and records that may be needed to resolve a claim may be located in the state. If there are experts that need to be engaged, they will likely need to visit the site. These reasons of efficiency and convenience, alone, may justify the parties’ decision to select the project state’s laws to govern their construction contract. However, there is also the policy interest of the project state, whose laws may even mandate that the project state’s laws govern construction contracts for in-state projects and that the parties resolve their disputes in state as well. Several states have laws that require construction disputes for projects in the state to be resolved under its laws and/or litigated or arbitrated in the state. Some states require only that its laws govern and do not also require that the dispute resolution take place in the state, but some require both – that its laws govern and the disputes be resolved there. There may be different triggers as to when the statute applies. For example, in some states, the statute applies to any construction contract for a project in the state. In others, the law may only be triggered if one of the parties is domiciled in the state. Read the full story...
Reprinted courtesy of Victoria Davies, Jones Walker LLP
Ms. Davies may be contacted at vdavies@joneswalker.com

Wave Breaker: How a Living Shoreline Will Protect a Florida Highway and Oyster Bed

December 23, 2024 — Derek Lacey - Engineering News-Record
A living shoreline being constructed in the Florida Panhandle's Apalachicola Bay is protecting a critical local highway, while fostering marsh areas and oyster habitat that’s seen years of decline. Read the full story...
Reprinted courtesy of Derek Lacey, Engineering News-Record
Mr. Lacey may be contacted at laceyd@enr.com

Oracle Sues Procore, Claims Theft of Trade Secrets for ERP Integration

November 25, 2024 — Jeff Yoders - Engineering News-Record
Oracle, Inc., has sued Procore in federal court in Northern California, accusing the construction management platform provider of stealing confidential information related to developing enterprise resource planning products for contractors. Read the full story...
Reprinted courtesy of Jeff Yoders, ENR
Mr. Yoders may be contacted at yodersj@enr.com

Rejection’s a Bear- Particularly in Construction

December 23, 2024 — Christopher G. Hill - Construction Law Musings
As I read through this week’s cases published in Virginia Lawyers Weekly, I came across a case posing an interesting question. The question is, “If your bid is rejected along with everyone else’s, can you complain?” The short answer set out by the Rockingham County, Virginia Circuit Court is “No.” In the case of General Excavation v. City of Harrisonburg the Court looked at the Virginia Public Procurement Act’s bid protest provisions in Va. Code 2.2-4360 and 2.2-4364(C) in the context of General Excavation’s protest of the City’s failure to award it (or anyone else for that matter) the contract on which it was the low bidder. The controlling section of the statute allows a challenge to the award or proposed award of a contract. In defending the action, the City of Harrisonburg argued that, because the Procurement Act waived some of the city’s sovereign immunity, it must be read strictly. The city further argued (somewhat ironically) that, because no award of the contract was given or even proposed, General Excavation could not bring suit because it would not be challenging the “proposed award or award” of a contract. Not surprisingly, the Rockingham County court held with the City and strictly construed the statute against General Excavation in finding that General Excavation did not have the standing necessary to bring suit under the statute. Read the full story...
Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Kahana Feld Partner Noelle Natoli Named President of Women Lawyers Association of Los Angeles

October 07, 2024 — Linda Carter - Kahana Feld
LOS ANGELES – Sep. 16, 2024 – Kahana Feld is pleased to announce that partner Noelle Natoli was recently installed as the 2024-25 president of the Women Lawyers Association of Los Angeles (WLALA). The mission of WLALA is to promote the full participation in the legal profession of women lawyers and judges from diverse perspectives and backgrounds, maintain the integrity of our legal system by advocating principles of fairness and equality, and improve the status of women by supporting their exercise of equal rights. Natoli is a partner based in Kahana Feld’s Los Angeles office and focuses her civil trial practice on the defense of both insurers and insureds primarily in the areas of elder abuse, transportation defense, and general liability. Her clients include individuals, family-owned businesses, and national corporations. Natoli also chairs the Diversity & Inclusion Committee for the Trucking Industry Defense Association and serves as a board member of the National Conference of Women’s Bar Associations. Read the full story...
Reprinted courtesy of Linda Carter, Kahana Feld
Ms. Carter may be contacted at lcarter@kahanafeld.com

Quick Note: Staying, Not Dismissing, Arbitrable Disputes Under Federal Arbitration Act

July 31, 2024 — David Adelstein - Florida Construction Legal Updates
As you hopefully know from posted articles, arbitration is a creature of contract. Stated differently, there must be a contractual basis to have a dispute resolved through binding arbitration. The Federal Arbitration Act (FAA) applies to transactions involving interstate commerce. Oftentimes, lawsuits are filed despite an arbitration provision in a contract because parties can, if they desire, waive their rights to have their dispute resolved through binding arbitration. In what should not be a shocker, the United States Supreme Court in Smith v. Spizzirri, 144 S.Ct. 1173, 1178 (2024), held that when a federal “district court finds that a lawsuit involves an arbitrable dispute, and a party requests a stay pending arbitration, section 3 of the FAA compels the court to stay the proceeding.” Dismissing the lawsuit should not be the option. Staying the lawsuit should. Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Rainwater Collecting on Rooftop is not Subject to Policy's Flood Sublimits

October 15, 2024 — Tred R. Eyerly - Insurance Law Hawaii
Responding to a certified question from the First Circuit, the Supreme Judicial Court of Massachusetts determined that rainwater collecting on the insureds' rooftop and causing interior damage was not "flood" as defined in the policy and subject to sublimits. Zurich Am. Ins. Co. v. Medical Properties Trust, Inc., 2024 Mass. LEXIS ___ (Mass. July 23, 2024). A severe thunderstorm caused heavy rain and strong winds which damaged a hospital. The hospital was owned by Medical Properties Trust, Inc. (MPT) and leased to Steward Health Care System LLC (Steward). Ground water accumulated and flooded the basement. Rainwater also accumulated on the hospital's parapet roofs and on the second-story courtyard, and eventually seeped through the parapet roofs and courtyard to the hospital's upper floors, causing damage to the building and property within. Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

It’s Not What You Were Thinking!

December 10, 2024 — Daniel Lund III - Lexology
At least it is not what the lower court was thinking… but the same result for a general contractor seeking to have its comprehensive general liability insurer pay the GC’s defense related to claims for physical damage on a construction project. In reviewing the Massachusetts federal district court’s ruling in favor of the insurer, the United States First Circuit Court of Appeals posited: “The principal question is whether a general contractor’s CGL insurance policy covers damage to a non-defective part of the contractor’s project resulting from a subcontractor’s defective work on a different part of that project.” The district court had held under Massachusetts law that the insurer had no duty to defend because the lawsuit “did not allege ‘property damage’ caused by an ‘ occurrence,’ as required for coverage” under the policy (a defense that was urged by the insurer). The Court of Appeals affirmed, “albeit for different reasons.” Read the full story...
Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

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