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 2014-06-10 15:38:08.
I have discussed how hard it is in the Commonwealth of Virginia to make out a claim for fraud when a construction contract is involved. On limited exception is where a claim for “fraud in the inducement” is involved. Essentially, such a claim states that one party was hoodwinked into entering the contract in the first place. Because of the initial fraud (for instance misrepresenting the class or existence of a contractor’s license), the courts may bypass the terms of the contract and allow a claim for fraud to go forward.
Continue reading Even Fraud in the Inducement is Tough in Construction
Originally posted 2014-10-13 09:15:01.
I have discussed both payment bond claims under the Miller Act and alternate dispute resolution (ADR) here at Construction Law Musings on many an occasion. A question that is sometimes open is what to do when there is contractually mandated arbitration for claims “relating to the contract or the work.”
While here in Virginia, as in most places, the courts will almost automatically send any breach of contract case with such a clause to arbitration, a question exists whether the claim against the bond held by a surety that is not a party to the contract is subject to being referred. Well, in a recent opinion the District Court for the Eastern District of Virginia in Norfolk weighed in on this question where there was no opposition or objection to a motion to stay pending arbitration.
Continue reading Is Arbitration Okay Under the Miller Act? It Is if You Don’t Object
Originally posted 2017-12-01 12:30:43.
The title of this post may seem obvious. Of course you need to name the right people. “Why even write about this?” you may ask yourself. The answer to this question is that the list of all of the parties necessary to a successful lawsuit may not be so obvious.
One example is the case of a Virginia mechanic’s lien lawsuit. The obvious parties would be the contractor or subcontractor that owes the money and the owner of the property. However, you can’t stop there. The trustees to any deed of trust and the bank or other party that may hold a note on the property are necessary parties as well. Failure to name one of these necessary parties can lead to dismissal of your suit. This is why I always recommend a title search prior to any mechanic’s lien memorandum being recorded and an update prior to suit.
Continue reading In Any Construction Lawsuit, Be Sure to Name the Right People
Remember the one about differing site conditions? (just kidding, that was never a joke). However, any site contractor knows that these differing conditions can be the bane of its existence. Recently, the Danville, Virginia Division of the Federal District Court for the Western District of Virginia weighed in on the differing site conditions debate.
In the case of Haymes Brothers Inc. v. RTI Int’l Metals Inc. the Court interpreted a clause in a contract allowing for an “equitable adjustment” to the contract price in the event that the soils were of a different “type” than those known to the subcontractor at the time of its bid.
The basic facts are these. Haymes Brothers bid for site work and later found boulders and other conditions in the soil that significantly increased its costs to perform the excavation and site work. Of course, Haymes asked for an equitable adjustment to its original contract price, and RTI, of course, denied the request. The excavation work cost Haymes over a million dollars more than its original bid and so, Haymes sued.
Continue reading Sometimes Adjustments are in Fact Equitable- A Story of Differing Site Conditions
