Construction projects, both big and small, pose a host of safety risks and challenges and, as a result, are subject to a number of regulations designed to limit the probability and severity of jobsite accidents. In my latest article for the Daily Journal of Commerce, I discuss common violations, some recent regulatory changes, best
Insurers Attempt to Avoid Coverage (Mis)using the Professional Services Endorsement
Parties spend significant time negotiating insurance provisions for protection in the event they face claims related to defective construction, but those protections can be rendered worthless if the wrong insurance forms are used. In my recent Daily Journal of Commerce article, I look at one particularly troublesome provision – the “professional services” endorsement – and
Think the ADA preempts contractual risk shifting? Not so fast, says the Ninth Circuit.
Rejecting an argument that the ADA preempts all contractual claims for indemnity and contribution, the Ninth Circuit recently upheld a public owner’s right to seek contribution for damages arising out of ADA violations caused by the designer and contractor of a transportation facility. See City of Los Angeles v. AECOM Services, Inc. (here).
Public Private Partnerships Provide an Opportunity to Leverage Private Sector Expertise and Financing for Public Benefit
Creative solutions will likely be required to bridge the gap between the cost of addressing growing infrastructure needs in the U.S., currently estimated at $4 trillion, and the amount of available public funding. One increasingly popular possibility involves supplementing public funds with private financing through agreements that allow for greater private sector participation in the
The Devil is in the Details: Contractual Additional Insured Requirements
Owners frequently require their contractors to name them as additional insureds. Owners and contractors often include requirements seeking to have the obligation to name them as additional insureds “flow down” to parties with whom they lack a direct contractual relationship (e.g., subconsultants, subcontractors, and suppliers). Despite the simplicity and appeal of this arrangement, contractual additional
Joint Venturers Must Venture Carefully
There are good reasons to partner with other designers or contractors–even competitors–on construction and design projects. Perhaps such a collaboration gives you access to new geographical or industry markets, or enables you to take on a project of broader scope. A joint venture arrangement is a straight-forward way to collaborate in such instances. However, there
Negotiating by a Thousand Texts: LOL? Think Again.
The law may be slow to evolve, but courts are beginning to embrace 21st century communication methods. The prospect of negotiating a deal by text message may seem like a laughing matter, but a Massachusetts court recently relied on parties’ email and text communications to determine the essential elements of an agreement for the
“Without Performance Specifications, Green Building Can LEED to Disputes
It’s been more than 20 years since the LEED standard was introduced, and green building has now become a significant percentage of new U.S. commercial real estate construction. The benefits of green building techniques and products have made LEED certification a hot commodity and changed the construction industry. But there are also risks involved if
“From, For, and Against”: What’s the Difference?
Indemnity provisions are often among the most negotiated and least understood provisions of commercial contracts, and construction contracts are no exception to this rule. Despite, and perhaps because of, the importance of these clauses, they have evolved into an almost impenetrable jumble of legal terminology.
This jumble of words is not, however, without meaning. Although
Think all Oregon construction defect claims are governed by the same 10-year statute of repose? Think again.
In Shell v. Schollander Companies, Inc., the Oregon Supreme Court affirmed a line of appellate decisions distinguishing between defect claims arising out of construction performed for an owner and defect claims arising out of an owner’s purchase of an existing structure. In Schollander, the homeowner sought recovery for defects in the construction of