25 Nov · Mon 2013
Dealing With Out-of-State Vendors – Where Can You Be Sued?
20 Nov · Wed 2013
Lien Equals Security Interest, but Lien Does Not Equal Proof of Amount Due
A lien claimant has learned the hard way that proof of the amount due must be established at trial, and one cannot simply rely on the existence of the lien claim to prove what is due. Absent the necessary proof, the lien will be dismissed.[Read More]
07 Nov · Thu 2013
Prevailing Party Clauses – Draft With Care
06 Nov · Wed 2013
"Negligent Entrustment" of Construction Equipment
01 Nov · Fri 2013
Duane Morris Named Law Firm of the Year for Construction Law by U.S. News-Best Lawyers for the Second-Consecutive Year
Only one law firm is recognized as the 2014 Law Firm of the Year per practice group. According to U.S. News Best Lawyers, Duane Morris received this designation for Construction Law due to its impressive overall performance.
For the full story, please click here.
30 Oct · Wed 2013
Department of Buildings Expands Online Filings and Approvals
18 Oct · Fri 2013
Overlooked Obtaining an Additional Insured Endorsement? You Might be Saved by the Automatic Additional Insured Endorsement – or Might Not.
Many CGL policies typically include an endorsement that contains a clause providing for automatic additional insured status without a project specific schedule listing names of additional insureds. (See, for example, form CG 2033 0704, "Additional Insured-Owners, Lessees or Contractors – Automatic Status When Required in Construction Agreement With You"). By this endorsement the "Who is An Insured" provision is amended "to include as an additional insured any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy." That can be a fail-safe mechanism when upstream contracting parties neglect to obtain necessary written endorsements naming specific parties. However, it only goes so far.
In a recent decision  , a court concluded this endorsement means exactly what it says when a construction manager and owner sought additional insured status from a general contractor's plumbing subcontractor. The construction manager and owner relied on the automatic additional insured endorsement as there was no specific naming endorsement reflecting those parties as additional insureds. The court found it was undisputed that there was no written agreement between the subcontractor and the construction manager or owner. Thus, there was no coverage for them. Even considering arguments that the subcontract incorporated by reference the general contractor's contract with the construction manager, which required the general contractor – and thus arguably the subcontractor - to name the owner and construction manager as additional insureds, those organizations simply did not qualify under the terms of the endorsement (viz. "when you and such person or organization have agreed in writing"). It is the terms of the policy that controls the insurers obligation, not the terms of the contract. Only the general contractor had a written agreement with the subcontractor and thus qualified, and the coverage clams by the others were accordingly dismissed.
Getting a specific naming endorsement - and one without the limiting language of the automatic clause noted above – is the only way to proceed. The contract terms themselves will not suffice, nor will a certificate of insurance, as we all know.
As an alternate, the Insurance Services Office has recently published a series of modified additional insured endorsement forms including a new one, CG 2038 0413, which adds the following to A. Section II – Who is an Insured: "any other person or organization you are required to add as an additional insured under the contract or agreement described in Paragraph I above."
That should address that problem. Not solved, however, is the problem with that form’s - as well as its alternate CG 2033 0413 - exclusive application to on-going operations with no coverage to additional insureds for completed operations of the named insured.
 Turner Construction Co. v. The Harleysville Worchester Insurance Co., 2013 N.Y. Misc. LEXIS 4183, 2013 N.Y. Slip Op 32209(U), Supreme Court, New York County, September 13, 2013.
 The endorsement is quoted by the court but not identified by form number but likely was the 0704 edition of CG 2033 because the policy was issued for 2007
15 Oct · Tue 2013
Mississippi's Stop Notice Law Ruled Unconstitutional
08 Oct · Tue 2013
Enforcing Arbitration Rights: Too Little + Too Late = Too Bad
26 Sep · Thu 2013
Should Your Indemnity Survive Termination or Completion of the Contract?
A recent appellate decision confirms that an indemnity in a construction equipment installment sales contract did not continue once final payment was made. Thus, claims arising about one year later were not subject to the terms of the indemnity. This reinforces the concept that parties should carefully consider whether it is appropriate to state that an indemnity will continue beyond the duration of the contract (or not).[Read More]
09 Sep · Mon 2013
Conditions Precedent to Dispute Resolution: A Help or a Hindrance?
The AIA A201 General Conditions posit the architect’s decision on a claim as a condition precedent to arbitration of that claim. A recent New York appellate decision demonstrates why this clause, employed as a roadblock many years after the dispute arose, should be modified by the AIA. In 2013, a party has been told by the appellate court that it must submit its 2005 dispute to the architect before it can proceed to arbitration. Common sense has flown out the window![Read More]
04 Sep · Wed 2013
A Cautionary Insurance Tale for Project Owners
The contractor’s excavator digging the foundation for a new building undermines the abutting building, which collapses, and a worker is injured. In the subsequent lawsuits, one by the abutter and one by the injured worker, the project owner tenders the defense to its GL carrier. The carrier eventually gets a court decision, that there is no coverage due to the subsurface soil movement exclusion. In the circumstances of a clear accident, and clear personal injury and damage to property, is this correct? Yes.[Read More]
28 Aug · Wed 2013
CMAR Project Delivery for Public Works Projects in California: Benefits and Risks Under Current Statutory Structure
Based in part on the significant national expansion of public works projects in the middle of the 20th century, the country’s method of procuring infrastructure has historically relied on a single project delivery system, design-bid-build (DBB). Over roughly the last few decades, however, various federal and state entities have revived or created several alternative forms of project delivery systems for public works projects, including design-build (DB), public-private partnerships (PPP or P3), integrated project delivery (IPD), design-build-operate-maintain (DBOM), build-operate-transfer (BOT), lease/leaseback, and, as relevant to this article, construction management at-risk (CMAR). (CMAR is also referred to by several other names and acronyms, including, most commonly, construction manager/general contractor or CM/GC.)
22 Aug · Thu 2013
Duane Morris Construction Partner Frederick Cohen Recognized as a Best Lawyers' "Lawyer of the Year" for 2014
Duane Morris is pleased to announce that Duane Morris partner Frederick Cohen has been selected by Best Lawyers as a "Lawyer of the Year" in New York City Litigation - Construction law for 2014. Only one lawyer in each practice area and city is given this honor. Lawyers are selected based on high marks received during the extensive peer-review assessments conducted by Best Lawyers each year.[Read More]
15 Aug · Thu 2013
Fallout in the State Courts from Supreme Court Arbitration Decisions