GOOD FAITH AND FAIR DEALING | How Do You Prove a Party Has Failed to Act Based Upon an Ulterior Motive? The duty of good faith and fair dealing comes with every contract. A breach of which is challenging to prove because it is relatively simple to fulfill. In 2017, a contractor agreed to mill […]
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NOT ANOTHER NOTICE STORY| This Defensive Argument Seems to be on the Rise AS I CONSIDERED the subject matter for this column, I found yet another example of courts strictly enforcing notice requirements. If you regularly read this column, you have seen similar scenarios and may wonder, “Why am I reading yet another story about […]
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ALL ACCORDING TO PLAN | Exact Measurements Go a Long Way In December 2013, a contractor agreed to replace four bridges for the Vermont Agency of Transportation (VTrans). Three bridges were completed on time. The fourth bridge involved the construction of a single-span steel girder bridge over the White River in Rochester, Vt. One abutment […]
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CONNECTING THE DOTS | Showing Causation in Contracting Cases is Critical In this asphalt case, the prime contractor agreed to perform a $13 million road project for the South Dakota Department of Transportation on U.S. Highway 83 in Lyman and Stanley Counties in South Dakota (near the State Capitol of Pierre). The prime subcontracted with […]
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LIQUIDATED DAMAGES | Penalties and What is Unenforceable Liquidated damages typically flow from delays, but they are not always solidly enforced. In June 2017, a contractor agreed to construct a new park and elementary school for a city. The project included demolition of an existing park. The city did not want the neighborhood to go […]
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WARRANTY PROVISIONS | Contracts must be interpreted thoroughly to avoid absurd results You are responsible for things within your control. Be careful if assuming responsibility without control. On a public works contract for a public owner in Washington, the contractor constructed and installed a pipeline to convey overflow wastewater toward a diversion structure and storage […]
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THE AGREED PRICE | This case stands as a warning about pay-if-paid clause History cannot be rewritten and a bad, but legal, bargain cannot (should not) be undone. Also in this story, a reminder to primes and higher-tier subs to confirm (when possible) flow down of key subcontract provisions. L&A Contracting Co. v. Louisiana DOT, […]
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CONFUSING WATERS | A Supreme Court ruling leaves room for ambiguity What happens when there may be a “significant nexus” between “adjacent” and/or “relatively permanent” “Waters of the United States” (WOTUS)? Answer: Confusion, uncertainty, ambiguity, great consternation, and litigation leading to an opinion by the highest court in the land. Continue reading…
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AUTHORITY DEFINED | The Law of Agency is Important to Understand For any project, this Russian proverb is helpful: Doveryay, no proveryay – Trust, but verify. In other words, get it in writing. In the case of Eagle Rock Timber, Inc. v. Teton County, Idaho, 531 P.3d 488 (Idaho Supreme Court, June 13, 2023), a […]
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DEFINING LABOR | How the Miller Act continues to shape the industry In the late 1700s, risks of nonpayment caused a shortage of construction workers, particularly in Washington, D.C. In 1791, Thomas Jefferson proposed a mechanic’s lien statute to solve the problem.  However, because a mechanic’s lien cannot attach to public property, the Heard Act […]
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Not bad power, but the ability of a decision-maker (e.g., court) to decide which side is right (or which is more correct). A judge’s power is not automatic. Every court must first decide if it has the power to decide the parties’ dispute – whether it has jurisdiction over the subject matter and the parties […]
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MEDIATION MELEE| An arbitration case can be costly Arbitration can be a bridge over troubled waters. In this crossing, the parties argued over a $90,000 damages award plus a $1.3 million award of attorney’s fees and costs. In this case, a prime and sub were contracted for construction of the new steel arch bridge on […]
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WRITTEN NOTICE | Beware that strict compliance of the contract might be required. When an owner replaced a contractor for significant safety violations, the owner sought to recover the costs for a replacement from the original contractor. A Texas jury found that the owner and the terminated contractor each breached the contract. Both sides were […]
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