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Legal - The Economic Loss Rule and construction defect litigation Part 3: Blurred lines, uncertainty, and recent legal developments

AUSTIN - This is the third article in a three-part series about the economic loss rule. As previously discussed, the rule sorts legal claims by distinguishing whether a party can recover under contract or in tort. Thus, how the rule draws the line between contract and tort claims is vital for those in the construction industry. Indeed, if the rule sets a broad scope for contract claims, parties who rely on the certainty provided by certain contra...

Created by : cwiatrekcn
08/30/2017 21:00:00 | Viewed: 0
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The Economic Loss Rule and construction defect litigation Part 2: What does the economic loss do?

AUSTIN - Last month’s article provided a brief overview of the economic loss rule. As discussed, the rule is a type of legal sorting machine: put in information regarding the type of claim or loss, and the rule will tell you whether you have a contract-based cause of action or a tort-based cause of action. While this sorting may not mean much, this article will explain why the rule can provide a powerful defense in a construction defect lawsuit...

Created by : rdoebblercn
07/27/2017 13:00:00 | Viewed: 0
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The Economic Loss Rule and construction defect litigation Part 1: What is the Economic Loss Rule?

AUSTIN - A. Introduction. Litigation is the last place anyone in the construction industry wants to be in. That is why owners, developers, contractors, and sub-contractors should draft their contracts with an eye toward the possible lawsuit. To that end, a contract’s terms (capping damages, excluding claims, specifying specific types of relief, etc.) represent a careful allocation of the parties’ risk—the “benefit of the bargain.” Parti...

Created by : Reesa Doebbler
06/29/2017 14:00:00 | Viewed: 0
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Legal - Making the most of early mediation

AUSTIN - Many dispute resolution clauses in construction contracts contain a requirement that the parties mediate prior to pursuing litigation or arbitration. Mediation, at its heart, is simply a facilitated negotiation, with the mediator helping all parties find consensus to resolve a dispute on their voluntarily agreed upon terms. A successful early mediation—before legal or arbitration proceedings have started—helps the parties save the ti...

Created by : cwright
04/27/2017 06:00:00 | Viewed: 0
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Legal – Is a wall Force Majeure?

HOUSTON – That is the strange question a client asked me recently in the midst of a protracted contract negotiation. At first, I was perplexed, and then I realized, after additional follow up questions, that he was referring to the proposed US-Mexico border wall. First, let me say that this is not a political article or opinion. My intent is to inform contractors on the potential impact on labor, and language in construction contracts that im...

Created by : cwright
03/29/2017 18:34:00 | Viewed: 0
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Legal – Sports’ world provides guidance for the construction project file

SAN ANTONIO – Sadly, football season is over. As we lament what our team’s season could have been and dream about what next year’s season will bring, we can apply two quotes from the sports’ world to the construction industry – specifically to the construction project file to support claims for changes: 1. “It starts with complete command of the fundamentals.” – Jesse Owens 2.“The best defense is a good offense.” – Vince L...

Created by : cwright
02/24/2017 17:40:00 | Viewed: 0
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Legal – Is your teaming agreement enforceable?

SAN ANTONIO – Contractors often seek strategic alliances with other contractors to complement their capabilities and increase their chances of winning a contract. In forming such alliances, it is important to use the type of agreement that best fits your needs to ensure it’s enforceable and not just an agreement to agree....

Created by : cwright
01/25/2017 22:00:00 | Viewed: 0
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Legal – Compliance with the Davis- Bacon Act: Not just prime contractor’s responsibility

SAN ANTONIO – You may think paperwork about payrolls is the general or prime contractor’s problem and that subcontractors just need to perform the work. If the Davis-Bacon Act (DBA) applies to the project, the work, regardless of who is performing it, is not done until the paperwork is complete....

Created by : cwright
12/29/2016 20:31:00 | Viewed: 0
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Legal – Forum-Selection and Choice-of-Law Provisions: Are they enforceable?

HOUSTON – Forum-selection and choice-of-law provisions are found in most construction contracts. You’re probably familiar with them; they generally stipulate the forum for any dispute resolution, and specify the law that will govern. These provisions are often utilized by larger construction companies that work across broad geographical areas to make dispute resolution more predictable, efficient, and/or advantageous. Though they might be ov...

Created by : cwright
11/28/2016 16:16:00 | Viewed: 0
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Legal – For convenience’ sake: The give-and-take of termination for convenience clauses

HOUSTON – “Termination for convenience,” you may see these words in your contracts or purchase orders, but what do they really mean? This clause can be okay for contractors, as long as they make sure it does not leave them high and dry. A termination for convenience clause is a provision in construction contracts that provides parties the right to terminate a contract with or without cause. Its purpose is to allow the terminating party to a...

Created by : cwright
10/25/2016 15:10:00 | Viewed: 0
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