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Construction Litigation

Practice Points

What you need to know in a quick-to-read format. Find all of the Construction Litigation Committee’s Practice Points in this archive.


Should I Skip an Opening/Joint Session in a Construction Mediation?
Brian R. Gaudet – March 30, 2021
Mediation is a dispute resolution process that involves people who have feelings, goals, and marching orders. It is not simply an emotionless calculator for determining a monetary settlement.

Try Med-Arb as an Alternative to the Typical Alternative Dispute Resolution
Brian R. Gaudet – March 30, 2021
An alternative to traditional alternative dispute resolution called med-arb, a combination of mediation and arbitration, should be strongly considered in small and uncomplicated cases.


Virtual Perspectives #4: Muting Audio and Video
By Brian Gaudet, Susan Pangborn, Burleigh Singleton – November 30, 2020
It is critical that the participating attorney as well as all witnesses and client representatives be hyper-focused on appropriate muting of audio and video when doing virtual events.

Virtual Perspectives #3: Background and Lighting
By Brian Gaudet, Susan Pangborn, Burleigh Singleton – November 30, 2020
Lawyers need to consider whether items appearing in the background could potentially affect how someone feels about the speaker.

Virtual Perspectives #2: Platform Assistant
By Brian Gaudet, Susan Pangborn, Burleigh Singleton – November 25, 2020
Try using an associate, paralegal, or other assistant to help the presenting lawyer with the virtual process.

Virtual Perspectives #1: Screen Real Estate
By Brian Gaudet, Susan Pangborn, Burleigh Singleton – November 25, 2020
How to maximize your odds when preparing for your first virtual mediation, hearing, deposition, or arbitration.

Support Historically Underutilized Businesses to Grow Your Construction Practice
Brian R. Gaudet – October 29, 2020
A unique feature of construction yields a potential source of clients.

Off the Radar Construction-Law Jobs
Brian R. Gaudet – October 28, 2020
Here are some ideas for new lawyers looking for construction-law related jobs.

Insured Loss/Roofing Cases
Brian R. Gaudet – February 25, 2020|
A recent case reminds us that roofing cases related to insured losses bear some additional consideration in advising our clients and litigating disputes.

Limitations on Contractors Advocating for their Client’s Insurance Coverage
Brian R. Gaudet – February 24, 2020
When contractors try to interpret policies, push for coverage, and opine on whether certain damage occurred from a covered loss, they can run into trouble.


Beware International Laws and Conventions
Brian R. Gaudet – May 22, 2019
Federal law enforcing arbitration clauses in international agreements pre-empts state laws purporting to invalidate them.


Proposed New Jersey Law Takes Aim at Mandatory Arbitration
By Jeanne Schubert Barnum – January 10, 2017
Under the law, no company that wants to do business with the state may include a provision in any of its contracts, not just those with the state, requiring mandatory arbitration of any legal dispute.


Fifth Circuit Considers Limits of the Spearin Doctrine
By Kenneth I. Levin and Jeffery R. Mullen – August 5, 2016
The court ponders allocation of risk of defective plans and specifications in reversing $1.29 million judgment entered in favor of contractor.


Washington Court Rules a Termination for Convenience Provision Is Not Illusory
By Paul R. Cressman Jr. – October 23, 2015
The decision in SAK & Associates, Inc. v. Ferguson Construction, Inc. distinguishes Washington law from some jurisdictions that interpret the implied covenant of good faith and fair dealing to impose a limitation on termination for convenience provisions.

Contractor’s Lien Rights Take Priority Based on First Date of Work
By Paul R. Cressman Jr. – October 22, 2015
A contractor who released its lien of record was allowed to re-record the lien and have priority over a lender based on contractor’s first date of work.

Lack of “Inexcusable Neglect” Allows Suit to Go Forward Despite Statue of Limitations
By Sean R. Calvert – July 17, 2015
Washington’s Court Rule 15(c) allows a plaintiff who mistakenly sues an incorrect defendant to amend a complaint and add the correct defendant.

Unlicensed Contractors Not Entitled to Statutory Protections
By Sean R. Calvert – July 17, 2015
The New Mexico Court of Appeals held that the strong public policy against unlicensed contractors not only prevents unlicensed contractors from using the court system to collect for work performed, but also denies them the benefit of statutory protections such as statutes of limitation.

Washington Court Strictly Enforces Default Provision; Material Breach Can Still Excuse Performance
By Paul R. Cressman Jr. – April 23, 2015
Recently, Division III of the Washington Court of Appeals strictly enforced a default provision requiring notice and the opportunity to cure, but found that the non-breaching party can still contend a material breach occurred that excused its performance.

Statute of Limitations Can Run from Termination of Services
By Paul R. Cressman Jr. – April 22, 2015
a Washington appeals court ruled that for the six-year time period specified in RCW 4.16.326(1)(g) to run from the termination of services, rather than substantial completion of construction, there must be some nexus between the construction work performed at the claimed termination of services date and the cause of action.

Washington State Courts Can Have Civil Jurisdiction over Tribal Courts
By Paul R. Cressman Jr. – April 22, 2015
Washington’s supreme court ruled that its state courts have jurisdiction over a civil case arising out of a contract in which a tribal corporation waived its sovereign immunity.

"No Damage for Delay" Not Enforceable to Preclude Breach of Contract by Owner
By Robert M. Pitkin – March 11, 2015
The Texas Supreme Court held that a homeowner could maintain a cause of action for negligence against a builder’s plumbing subcontractor.

Texas Supreme Court Rejects Contractor Action for Negligent Misrepresentation
By Robert M. Pitkin – March 11, 2015
The Texas Supreme Court recently carved out a construction contract exception to the tort of negligent misrepresentation that had been consistently applied in business transactions in Texas for some 50 years.

“Pay If Paid” Not Easily Waived
By R. Daniel Douglass and Walter L. Booth Jr. – March 3, 2015
A recent court decision announced that these clauses cannot be waived unless the evidence is so “clear and unmistakable” as to “exclude any other reasonable explanation”

Mechanic's Lien Claimants Entitled to Due Process Notice of Tax Foreclosure Sale
By Robert M. Pitkin – February 20, 2015
The Supreme Court of Missouri upheld a trial court’s decision.

Personal Liability for Submitting False Lien Waivers and Payment Applications
By Robert Pitkin – February 20, 2015
A Missouri appeals court decided that individual owners of a construction company were personally liable for fraudulent misrepresentations made on lien waivers and payment application

Oregon’s Anti-Indemnity Statute Prevents General Contractor’s Recovery of All Attorneys’ Fees from Subcontractor
By Sean Gay – January 23, 2015
The Oregon Court of Appeals ruled that Oregon’s anti-indemnity statute can void a subcontract’s indemnity provision under some circumstances.