I have discussed the need for attorney fee provisions in your construction contracts in prior posts here at Construction Law Musings, but thought it merited a restatement of the reasons for the inclusion of such fee provisions (and changing of such provisions when presented) here with the second of my construction contract basics posts.

Why would you want such a provision?  The answer is that without it, or a statute specifically allowing for such fees, a Virginia court will not award your attorney fees without such a provision.  Virginia, and a lot of other states, follow the so-called “American Rule” when it comes to attorney fees and costs.  In short, that rule states that the parties to litigation pay their own way unless they agree otherwise.  While it may seem unfair to make a successful litigant pay for the privilege of being right, that is the rule in Virginia.  Throw in the fact that Virginia courts strictly construe construction contracts and voila we have a situation where without a provision in the contract stating that one party or both will be able to collect attorney fees should that contractor or subcontractor prevail, a construction professional that gets sued (whether rightly or wrongly) will be left with a hefty attorney fees bill and no way to recoup those fees through the courts or any other method. Continue Reading