Agreement for Specific Performance Precludes Actual Damages Claim

In settling an environmental contamination claim, the property owner agreed to accept a cash payment and the environmental company agreed to perform remediation work. The settlement documents provided that the owner’s remedy was in specific performance, to require the remediation company to do its work. Unhappy with the remediation, the owner instead declined to demand or require specific performance, had the property demolished, and then sought money damages. The trial judge turned the owner down, and the Massachusetts Appeals Court agreed.

The appellate court quoted an argument made by the defendants, that the owner “cannot create a condition which prevents specific performance, and then demand monetary damages in its place.” If the parties agreed that specific performance was the owner’s remedy, the owner would be held to that agreement. Even if the owner believed the remediation to have been performed improperly, taking action to frustrate the agreed remedy was not the way to get redress. (From the relatively short opinion, it is clear that the court viewed the owner as his own worst enemy.) The case is Abdella v. Hydro Envt’l Technologies, Inc., 2015 Mass. App. Unpub. LEXIS 484 (May 22, 2015). It has been published as a case not to be cited as binding precedent, but “only for its persuasive value.”

Subcontract Is Enforceable Even Though Too Low To Pay Prevailing Wage Rates

A subcontractor agreed to perform site clearing work for $5,000, and only later learned it was a public project requiring payment of prevailing wages. Instead of paying workers $13 and $14 per hour, the sub would have to pay $36 and $43 for a chainsaw operator and bucket truck operator, respectively. Was the sub entitled to more money, on the theory of an invalid contract, or alternatively in quantum meruit? A Massachusetts appellate court has said no.

The project paper trail left much to be desired. The original oral agreement, not disputed, was $5,000 to clear two sites. Only after starting work did the sub learn that he would have to pay prevailing wages. He sought an increased price, but nothing was agreed upon. He also sought money for extra work; again, there was no documentation and no agreement. It appears from the decision that the workers were paid properly and the $5,000 estimate was inadequate to cover the labor cost for the original scope. The trial court found the sub to be entitled to more money based on signed invoices, and under the theory of quantum meruit. But the appellate court reversed.

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A Sobering Reflection on the Dangers of Unsafe Construction

The San Jose Mercury News reports the manslaughter convictions of a construction company owner and project manager, who proceeded with unprotected excavation work in the face of a stop-work order from the local building inspector. According to the article, a construction worker was buried by “an unfortified 12-foot-tall dirt wall.” Prosecutors described the case as a “rare trial aimed at holding an employer criminally responsible for the death of an employee on the job.” One subcontractor reportedly walked off the site a few days prior to the accident, concerned for safety of its workers. Unfortunately for Raul Mercado, who had been working on the site for only a week, the contractor moved forward.

It is tragic any time a construction worker does not return home at the end of the day. Many players in the construction industry have gotten the message. National Safety Week earlier this month, complete with a website dedicated to that purpose, is emblematic of that philosophy. But the actions of a minority of contractors will continue to paint an unflattering picture until the safety message permeates through all sectors and all ranks of the industry.  Mr. Mercado and his family deserved better.

Arbitration Venue: Where the Parties Agreed, Despite State Law

The contract calls for arbitration in Indiana, applying the laws of Nebraska. But Nebraska has a law prohibiting parties from being compelled to arbitrate outside that state for an in-state project. In a GC/sub dust-up including lawsuits in both states, a U.S. District Court judge in Indiana has cited Supreme Court precedent in upholding the original contract venue clause.

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Delegation of Arbitrability to the Arbitrator – May Not Be Enforceable

Some arbitration clauses include a “delegation provision” where the parties grant to the arbitrator – instead of a court – the authority to determine validity and enforceability of the arbitration clause itself. A recent decision by the West Virginia Supreme Court of Appeals held a delegation provision that did not “clearly and unmistakably reflect an intention by the parties to assign to the arbitrator all questions about the enforceability of the arbitration clause” to be an improper delegation. As such, the court and not the arbitrator would determine enforceability of the arbitration clause. The clause in question included the following: “The arbitrator(s) shall determine all issues regarding the arbitrability of the dispute.”

This was a homeowner-contractor dispute. Unhappy with defects in their new house, the homeowners filed suit. The contractor moved to stay pending arbitration, and the homeowners responded that the arbitration clause was unconscionable and unenforceable. The contractor argued that it was for the arbitrator to decide those defenses, due to the delegation provision, and the court should defer. But the delegation argument was made only orally, as an apparent last-minute thought. The trial court refused to stay the case pending arbitration, adopting the homeowners’ position that the clause was procedurally and substantively unconscionable, and did not address the delegation issue. The case is Schumacher Homes of Circleville, Inc. v. Spencer, 2015 W.Va. LEXIS 562 (April 24, 2015).

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Liquidated Damages Liability After Convenience Termination

A contractor and public authority struggled through much of a pump station replacement project. During the work, the town agreed to extend the completion date by five months. Many change orders were presented and agreed to. The extended completion date came and went, and the town considered terminating the contract for cause but did not do so. More than two years after the extended completion date, the town terminated the contract for convenience. It later sought to impose liquidated damages, to offset against the contractor’s claim for payment made after termination. The contractor’s defense: the town cannot impose liquidated damages after a termination for convenience. But the Connecticut Supreme Court has held that the town can impose liquidated damages in that situation.

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Calculating Lost Labor Productivity: Is There a Better Way?

The calculation of lost labor productivity, also termed labor inefficiencies, is one of the most significant elements of damages in a construction dispute and one of the most controversial. If these damages are proven, the monetary value claim can be a considerable amount. This is far from surprising seeing as labor costs can make up to 30 to 50% of overall project costs and if these projects lose money, the unanticipated labor costs result from lesser unexpected productivity. Lost labor productivity has become controversial since owners and general contractors are skeptical of the methods in curating these calculations can be considered questionable, speculative, and illusory. The article will further define how lost labor productivity claims developed; the interplay of Daubert in the pursuit of, and defense against, such claims; and recent federal and state  case law addressing loss productivity.

The full article, written by Duane Morris partner Daniel E. Toomey and Duane Morris associate Joshua S. Marks, along with Dr. Tong Zhao, P.E. and J. Mark Dungan of Delta Consulting Group, Inc., is available on the Duane Morris LLP website, courtesy of The Construction Lawyer.


Non-Signatory Compels Arbitration by Signatory Party

Occasionally there are cases where one party to an arbitration agreement attempts to compel arbitration with a non-signatory party. The Massachusetts Supreme Judicial Court issued a decision on April 13, 2015, however, supporting the action of a non-signatory party to compel arbitration with parties who had signed the agreement, based on the theory of equitable estoppel.

The plaintiffs were System4 franchisees. They had entered into franchise agreements with NECCS, Inc., d/b/a System4 of Boston. Unhappy with the manner in which business had developed – or, more accurately, had allegedly not developed – they sued NECCS and System4 LLC, described as “regional ‘sub-franchisor’” and “master franchisor,” respectively. The plaintiffs claimed that NECCS misclassified them as independent contractors, when they were in reality employees. And that System4 participated in this misclassification. (There were other claims, but the misclassification claim was central to the argument about the scope of arbitration.) When System4, which had not signed any of the franchise agreements, attempted to compel arbitration, the plaintiffs argued that System4 was not signatory to the arbitration agreements and could not force that process. They also argued that statutory wage act claims were not subject to arbitration, based on a prior SJC decision holding that a release did not bar statutory wage claims unless the release specifically referenced such claims and/or the wage act.

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Duane Morris’ Construction Group Nominated for 2015 Chambers USA Award for Excellence

Duane Morris is pleased to announce that the firm’s Construction Group has once again been nominated for one of the prestigious Chambers USA Awards for Excellence. This is the fifth overall nomination for the group, which has been recognized among the top national practices by Chambers for the past several years. Duane Morris is one of only six firms to be finalists in the construction category this year.

The Awards for Excellence honor outstanding firms based on research conducted for Chambers USA 2015. These awards reflect a law firm’s preeminence in key practice areas, as well as notable achievements over a 12-month period, including outstanding work; impressive strategic growth; and excellence in client service.

The Chambers USA Awards for Excellence winners will be announced on Tuesday, May 19, 2015, at Cipriani 42nd Street in New York City.

AGC of America Calls for Transfer of VA Construction Management

AGC of America has issued a white paper calling for transfer of construction management duties currently exercised by the Office of Construction and Facilities Management at the U.S. Dept. of Veterans Affairs. In the paper, AGC notes that it has never before “called for the removal of a federal construction agency from managing its own construction program.” The paper references more than 20 GAO reports since 1981 citing major cost overruns on large VA projects. AGC offers to form a working group “to further articulate a thoughtful transition of the VA’s major construction program to the best qualified federal construction agency.” AGC’s own News & Views states that “not every AGC member agrees with this position.” Although not mentioned in the paper, the U.S. Army Corps of Engineers is the likely target recipient of this responsibility.