Kilpatrick Townsend & Stockton LLP updates

Timing is everything: how early retention of expert consultants can make or break construction claims
Kilpatrick Townsend & Stockton LLP
  • Construction
  • USA
  • 15 July 2019

Resolving construction disputes often involves unravelling complex issues and requires the analyses and opinions of expert witnesses in various industries relating to the project. Therefore, retaining an expert consultant as soon as litigation is imminent can be the difference between a party's pursuit or defence of construction litigation claims. To best utilise the leverage and advantages that non-testifying consultants offer, parties should retain legal counsel who are aware of the role that timing plays in expert retention.

Floating on assumption: navigating construction project float ownership
Kilpatrick Townsend & Stockton LLP
  • Construction
  • USA
  • 07 January 2019

Construction project schedules often generate disputes between project owners and contractors. These disputes commonly become the subject of claims that assign fault for delayed project completion to one party or another. When delays occur and float is available, each party may assume entitlement to the float on the project schedule and subsequent exemption from liability for damages relating to its delay; however, merely assuming float ownership can lead to unfavourable outcomes.

Is my bid binding?
Kilpatrick Townsend & Stockton LLP
  • Construction
  • USA
  • 13 August 2018

If a trade contractor submits a bid that a general contractor relies on to win a contract, questions may arise as to whether that bid is a contract and whether it is binding. Even if the bid does not meet the elements of a contract, it can still be binding. The courts apply the doctrine of promissory estoppel to hold parties to their bids in the absence of a contract. Differences in jurisdiction and in the facts of each case may affect the outcome, but when a bid is submitted it should be assumed to be binding.

It's just dirt, or is it? What you don't know on an excavation site can hurt you, or at least cost you money
Kilpatrick Townsend & Stockton LLP
  • Construction
  • USA
  • 16 July 2018

Underground utilities and pipelines pose potential problems for excavators and other contractors performing work below ground. Whether a business involves the construction of buildings primarily above ground or running pipes or cables below, there are issues to consider where a construction involves excavations. Ultimately, excavators must use care to avoid damaging marked lines and take all reasonable steps to protect underground facilities, pipelines and on-site people from harm.

New standard in Texas as to when an owner can assert a statutory employer defence?
Kilpatrick Townsend & Stockton LLP
  • Construction
  • USA
  • 25 June 2018

The 13th Court of Appeals in Edinburg, Texas recently issued an opinion that could eliminate the statutory employer protection for general contractors in certain circumstances if allowed to stand. The court held that in order to avail itself of the statutory employer defence, a general contractor must do something more than pass the onus of obtaining workers compensation coverage to its subcontractor. General contractors may need to rethink how they provide for workers' compensation coverage in future.

Five key takeaways from defence verdict in 15-year major league baseball stadium case
Kilpatrick Townsend & Stockton LLP
  • Construction
  • USA
  • 18 June 2018

Pennsylvania's intermediate appellate court has affirmed a defence verdict for the design and construction manager of a major league baseball stadium. The court issued its ruling following extensive discovery and motions practice, a six-week bench trial in 2010 and two defence verdicts. The case has a number of key takeaways for complex, multi-party cases.

Owner's participation in pre-trial litigation does not amount to a waiver of arbitration
Kilpatrick Townsend & Stockton LLP
  • Construction
  • USA
  • 28 May 2018

Proving waiver of a party's contractual right to arbitrate has often been a laborious obligation of the party bearing such burden. In the case between Legoland and Superior Builders, the court of appeals concluded that Legoland's actions in Superior's suit did not substantially invoke the judicial process; therefore, Superior failed to carry its heavy burden to show that Legoland had waived its contractual right to arbitrate. Accordingly, the court compelled the parties' dispute to arbitration pursuant to their arbitration agreement.

Choosing a damages methodology for certain construction claims
Kilpatrick Townsend & Stockton LLP
  • Construction
  • USA
  • 21 May 2018

Construction delay claims are regarded as being among the most difficult types of claim in the industry, due in large part to the difficulty in analysing the home office overhead costs associated with a specific project in conjunction with the percentage of the total amount of these costs for the company. It is important for a contractor to select a recognised methodology for calculating allocable home office overhead costs and ensure that all elements tied to such damages methodology are satisfied.

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