Contract Negotiation Tip of the month: Prevailing Party Clauses

by Kent Holland | Apr 26, 2016 | Newsletter Article

Contract Negotiation Tip of the month:  Avoid including prevailing party clauses in contracts.  But if your contract must include one, be sure to define the term “prevailing party.” Many contracts include a clause in the disputes provision of the agreement...

Contractor that is Individual Member of LLC has no Personal Liability for Negligence as a “Professional”

by Kent Holland | Apr 25, 2016 | Newsletter Article

J. Kent Holland, J.D. ConstructionRisk, LLC An individual who is a licensed contractor is not deemed a “professional” that owes an independent duty of care outside of the contractual obligations of the limited liability company (LLC) that signed a contract with a...

Waiver of Subrogation Upheld to Bar Insurance Carrier Claim against Contractor

by Kent Holland | Apr 25, 2016 | Newsletter Article

J. Kent Holland, J.D. ConstructionRisk, LLC A tire company entered into a lease of land on which to construct a distribution facility. The lease agreement provided that the Owner would lease the land, and would construct the building, with a requirement that the...

Owner Allowed to Sue Design Subconsultant Despite Lack of Contractual Privity

by Kent Holland | Apr 25, 2016 | Newsletter Article

Gail S. Kelley, J.D., P.E. ConstructionRisk, LLC In an effort to revitalize a waterfront area along Lake Michigan, the City of Whiting, Indiana hired an engineering firm to design a lakefront park and marina. The Engineer, in turn, hired a Subconsultant to serve as...

Actual Malice Is Not Required For Claims of Tortious Interference With Contractual and Advantageous Relations

by Kent Holland | Apr 25, 2016 | Newsletter Article

Gail S. Kelley, J.D., P.E. ConstructionRisk, LLC The plaintiff in this case, Barr Incorporated, was the general contractor (GC) on a project in Berlin, Massachusetts. After being terminated from the project based on a certification from the Architect, the GC sued the...

90 Day Deadline for Filing Appeal to Civilian Board of Contract Appeals Strictly Enforced

by Kent Holland | Apr 21, 2016 | Newsletter Article

Contractor filed an appeal electronically (via email) at 4:35 p.m. Eastern Time on the 90th day following receipt of a contracting officer’s decision. The Board dismissed the appeal, concluding that it lacked jurisdiction because the appeal was filed five (5) minutes...