Construction
Contract Indemnity and Duty to Defend vs. Insurance Duty to Defend
June 10th, 2016
A New Hampshire court has issued a thoughtful decision on the duty to defend arising from an indemnity obligation in a design contract. The court distinguished between the duty to defend often invoked for insurance coverage, from a duty to defend exp…
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It’s Not About Football, But . . . Arbitrator’s Decision Vacated, then Upheld, on Issue Not in Original Reference
May 25th, 2016
Football fans on either side of Deflategate will see the corollaries here. Over a span of years, a drywall company made several attempts to withdraw from the contractors’ association that bargains with particular unions. The company ended up in arb…
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Inadvertent Contractor Prequalification Can Be Overridden by Public Authority
May 17th, 2016
A Massachusetts trial court has held that a public authority, which inadvertently prequalified an electrical contractor who did not have the proper license, can override its own prequalification decision and reject a bid from the contractor. The cont…
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Lost Profit Claim is Constrained by Low Bid Setting
May 11th, 2016
A contractor was the lowest bidder on a public project, and the second-low bidder was only $11,705 higher. A consultant later discovered that some of the bid quantities that it provided to the contractor (pre-bid) were mistaken. The contractor, who s…
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What are the Contract Damages when Construction Creates No Benefit or Improvement?
April 28th, 2016
From the Iowa Court of Appeal comes an interesting question and decision. If the construction project is not properly performed, and creates no benefit or improvement for the owner, what is the measure of the owner’s damages? The answer: the amount…
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Categories: Construction
The Contract Isn’t Signed, a Few Issues Remain, the Work is Done; Now What?
April 25th, 2016
Lawyers hate this question. A contractor and subcontractor, having gone back and forth on a few contract terms while the sub is performing work, reach the end of the project – or at least the end of the sub’s work – without an agreed contract f…
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Four-Year UCC Statute of Limitations Does Not Cut off Remedy against Product Manufacturer’s 10-Year Warranty
April 12th, 2016
When a manufacturer provides a 10-year warranty on its product, that warranty is not cut off by the four-year statute of limitations in the Uniform Commercial Code, per the Delaware Supreme Court. Even when the manufacturer limits the scope of its wa…
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Categories: Construction
Federal Court Rebukes US Dept. of Labor – Private Project on Publicly-Leased Land is Not Subject to Davis-Bacon Wage Rates
April 7th, 2016
Referring to the “novelty of the U.S. Department of Labor’s interpretation,” a federal Court of Appeal has held that construction of the CityCenterDC private development project is not subject to Davis-Bacon wage rates, even though the land…
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Withholding Less Retainage ≠ Release of Retainage; No Prompt Pay Act Violation
March 31st, 2016
Sometimes a construction contract allows for the amount of retainage being withheld by the owner to reduce, once the project is more than half complete. For instance, retainage that starts at 10% may reduce, at the halfway mark, to 5% being withheld…
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Contractor Claim Not Dismissed under Contract Disputes Act for Failure of Timely Notice
March 23rd, 2016
Almost two years into a multi-year design-build contract, the government questioned the basis of design of the piles for a ship repair wharf. The contractor stopped work while the design issue was resolved with the government. The work stoppage led t…
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About Stan Martin
Stan Martin holds a law degree and an undergraduate degree in architecture. He has been involved with the construction industry for more than 45 years, working in construction prior to law school and beginning his construction law practice. During his career, he has been actively involved with the Associated General Contractors of Massachusetts, the Boston Society of Architects, the American Arbitration Association, and the Massachusetts Building Congress.