Construction Contract Basics: No Damages for Delay

Capri23auto @ PixabayAfter WAY too long a hiatus, I am back with another in my series of “Construction Contract Basics” posts.  In past posts, I’ve covered venue provisions, attorney fee provisions, and indemnity clauses.  In this post, I’ll share a few thoughts (or “musings”) on the topic of so-called “no damages for delay” clauses.  These clauses essentially state that a subcontractor’s only remedy for a delay caused by any factor beyond its control (including the fault of the general contractor), after proper notice to the owner or general contractor, is an extension of time to complete the work. Continue reading Construction Contract Basics: No Damages for Delay

Are Construction Contract Limitation of Liability Clauses on the Way Out in Virginia?

Remember BAE Systems and Fluor?  This post is the third here at Construction Law Musings relating to this case which is a seemingly never-ending source for content.  In the prior post discussing this case, the Court found that Va. Code 1-4.1:1 which bars waiver of a right to payment before work is performed did not apply because Fluor had provided work before execution of the contract or any change orders.

In the most recent opinion in this long-running litigation,  and after a motion to reconsider by Fluor that was granted, the Court re-examined this finding along with the contractual language found in the Limitation of Damages (LOD) clause and came to the opposite conclusion regarding certain change orders that remained unpaid by BAE. Continue reading Are Construction Contract Limitation of Liability Clauses on the Way Out in Virginia?

OSHA/VOSH Roundup

Originally posted 2015-08-03 09:00:14.

Image via Wikipedia

In an unusual flurry of occupational safety related activity, the Virginia courts decided two cases in the last week relating to either the review of occupational safety regulations themselves or their enforcement.

In Nat’l College of Business & Technology Inc. v. Davenport (.pdf), the Virginia Court of Appeals considered what constitutes a “serious” violation of the exposure to asbestos Virginia Occupational Safety & Health (VOSH) regulations.  The facts found by the Salem, Virginia Circuit Court were that employees of the petitioner college were exposed to asbestos insulation when they were required to enter a boiler room to retrieve paper files.  However, no evidence was presented regarding the length of time or level of exposure at the Circuit Court level. Despite the lack of evidence regarding the level or extent of exposure, the Circuit Court upheld the VOSH citation for exposure and the level of violation at a “serious” level with the attendant penalty.

The Virginia Court of Appeals disagreed with the second finding.  The appellate court determined that the lack of evidence regarding the level of exposure (whether length or extent) made the serious level violation an error.  The Court stated that merely presenting evidence that asbestos is a carcinogen is not enough given the number of carcinogenic materials in existence and then remanded the case back to Circuit Court to reconsider the penalty level.

In a second case, Steel Erectors Ass’n of America v OSHA (.pdf ), the petitioner, SEAA, challenged a 2010 directive from OSHA regarding the enforcement of 2001 safety standards regarding steel construction, claiming that the enforcement change was an illegal regulation.  The 4th Circuit Court of Appeals, in an exercise of discretion, determined that SEAA or one of its members would need to challenge any attempt at enforcement when OSHA tried to invoke its new policy.  What the 4th Circuit said SEAA could not do was to challenge the enforcement policy without any pending enforcement action.

What these two cases show, aside from the fact that, yes, the Courts will occasionally look at these types of cases, is that not all cases are cut and dried.  With the assistance of an experienced Virginia construction lawyer, a construction professional may be able to challenge an administrative enforcement action.  Also, the help of such an attorney can certainly help head off a failed challenge such as that by SEAA with its attendant expense and headaches.

As always, I welcome and encourage your comments below, please share your thoughts.  Also, please subscribe to keep up with the latest Construction Law Musings.

 

Thank You for 17 Years of Legal Elite in Construction Law

Thank you once again to those in the Virginia legal community who elected me to the Virginia Business Legal Elite in the Construction Law category for the 17th consecutive year. The 17 consecutive years of election to the Legal Elite in the Construction Category span my entire close to 14 years as a solo construction attorney.  The fact that you all have continued to elect “100%” of the lawyers at The Law Office of Christopher G. Hill, PC for the last 13 years is most gratifying and only confirms that my decision to “go solo” over 13 years ago was a good one.  To be included in this list of top construction attorneys is both humbling and gratifying.  For the complete list of the Virginia construction lawyers who were elected along with me, see the 2023 Virginia Business Legal Elite in Construction Law.

So without further ado, thank you to all of you who voted for me.  I truly appreciate your continued confidence and support of my construction law practice.  Your yearly votes always prod me to learn and continually improve to meet your expectations and keep my practice at this high level.  I also couldn’t do this without the great support from friends and family (not to mention clients), so my gratitude goes out to these great folks.

Thanks again,

Chris

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

Do We Really Want Courts Deciding if Our Construction Contracts are Fair?

Originally posted 2015-03-17 10:06:56.

Virginia General Assembly (Photo credit: Wikipedia)

As I posted recently, the Virginia General Assembly has passed, and I can see no reason why the governor won’t sign, a bill that would essentially invalidate preemptive contractual waivers of lien rights as they relate to subcontractors and material suppliers.  It does not apply to General Contractors, but it is a step in what many (including those attorneys that represent subcontractors and suppliers) believe is the right direction.

Of course, as soon as I posted last week,  my friend and colleague Scott Wolfe (@scottwolfejr) commented on that post and then gave his two cents worth at his Zlien blog.  The gist of the comments here at Musings and the post over at his blog was essentially that these contractual provisions were inherently unfair and therefore should be abolished because of both a relative disparity in leverage between the Owner or GC and the Subcontractor when it comes to negotiations and the fact that subcontractors often don’t read their contracts or discuss them with a construction attorney prior to signing them.  I hear this first of his arguments often when I am reviewing a contract after the fact and a client or potential client acts surprised that a provision will be enforced and the courts of the Commonwealth of Virginia will actually enforce them.  As to Scott’s second reason, I have always warned here at Musings that you should read your contracts carefully because they will be the law of your business relationship in the future.

Continue reading Do We Really Want Courts Deciding if Our Construction Contracts are Fair?

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