Originally posted 2012-07-02 09:00:23.
I have discussed the importance of every word in a construction contract on multiple occasions at Construction Law Musings. The United States District Court for the Western District of Virginia recently gave another reminder that one area that can act as a sword or shield in a contract is the language regarding provision of notice.
Continue reading Proper Notice Can “Accelerate” Your Recovery
Originally posted 2010-12-11 10:00:10.
In this case, the Plaintiff provided therapy services to residents of nursing homes. It sued for breach of a contract that included a standard arbitration clause stating that all disputes relating to the contract are to be resolved through arbitration. Subsequently, the parties reached a settlement agreement through e-mail negotiation. The agreement, again in e-mail form, stated the amounts to be paid to the plaintiff by the defendants and on what schedule. The settlement e-mail also stated that any dispute relating to the non-solicitation provisions of the contract would be resolved in the Western District of Virginia Federal Court. However, this final e-mail did not provide for any particular jurisdictional requirements for payment disputes and explicitly left any unchanged portions of the original contract in full force.
The defendants brought a motion to compel arbitration under the original contract. The Court denied this motion relating to the non-solicitation claims and granted it as to the payment dispute. The Court reasoned that the parties specifically waived arbitration as to the non-solicitation provisions but specifically left arbitration in force regarding all other contractual claims.
While this case is not one relating to a construction contract, it provides some good lessons for construction professionals and the construction lawyers who advise them.
1. E-mails resulting in changes to a contract, even through settlement negotiations, can waive contractual provisions.
2. Choose your words in such e-mails carefully, you may end up in two different venues like the defendants in this case if you are not careful to either keep arbitration in force for all claims or for none.
3. The power in point 1 of this list, when used carefully, can assure that the parties to a contract end up in the venue that they desire when seeking to enforce a negotiated settlement.
In short, be careful when crafting a non-judicial settlement of a contractual dispute to avoid litigation over what the settlement means. It is expensive enough to litigate any breach of terms of a settlement without having a court tell you what those provisions entail.
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Originally posted 2012-01-16 09:00:11.
I have discussed on several occasions the fact that construction contracts matter. The words in contracts matter and, in Virginia (as well as other states), most provisions, if not all will be enforced to the letter. Recently, the Western District of Virginia federal court ruled in a way that reminded me of another reason for a well-drafted contract.
In Rockingham Precast, Inc. v. American Infrastructure – Maryland, Inc. the Western District of Virginia Court considered a motion to transfer the venue to Maryland filed by American Infrastructure. The plaintiff, Rockingham Precast, a Virginia-based company sued in Virginia. American Infrastructure conceded that VA could be a proper forum for the lawsuit but argued that the form was much too inconvenient and costly for the party and non-party witnesses and that the cost made the forum an unfair place to try the case.
Continue reading Yet Another Reason That Your Contract Matters
Originally posted 2013-07-15 11:10:04.
As anyone who has practiced construction law for any period of time knows, Motions to Dismiss are a regular occurrence. These motions are made in an attempt to get a claim reviewed and rejected early in the process. Because these motions to dismiss can and do lead to the dismissal of what could have been properly proven claims, the initial complaint or, in Virginia, motion for judgment, has to be drafted with care.
Originally posted 2012-06-11 09:58:43.
Recently, there have been a few cases in construction that have grabbed the headlines (or at least those at this and some other blogs). The biggest stir seems to be from the Jacobs Engineering case discussed so ably by Matt Bouchard in last Friday’s Guest Post. However, while the “headlines” were grabbed by the U. S. Supreme Court’s decision not to review that case, the Virginia Court of Appeals handed down an instructive case regarding delay damages and actual costs.
In Commonwealth v. AMEC Civil LLC, the Court considered the above questions. The basic facts of the case involve a VDOT project that was delayed causing financial hardship to AMEC. Without going into the procedural history of the case (it is well laid out in the opinion and in the Virginia Lawyer’s Weekly summary of it), the case went to the Virginia Supreme Court and back and was appealed again after remand to the trial court.
Continue reading Construction Delay Damages Can Be Tough to Show
