Breach of Construction Contracts

• Overview

Learn how to navigate the complexities of a breach of construction contracts.

Sometimes even the best laid plans go awry and the unexpected can happen on a construction project that could affect your bottom line. Payments may suddenly stop, there could be a major change in the conditions at the project, or your subcontractor may make a substantial mistake. Once that happens, you will need to move quickly to protect your rights and mitigate any potential losses. In this material, experienced construction litigation attorneys Mark B. Grzymala and Brandon Hummel will navigate you through this complex area of law. They will provide a brief overview of the most important risk allocation provisions contained in construction contracts and what types of breaches most often arise and under what circumstances. They will then focus on identifying the types of damages available in the event of a breach, when contract termination is appropriate, what proof is necessary to recover damages, and the likelihood of recovery under various contract breach theories. During the last part of the material, they will discuss best practices for drafting a construction contract to minimize risks and to maximize recovery.

Authors

Agenda

Overview

• Contract Requirements

• Form Contracts vs. Manuscript Contracts

• Breach Elements

Common Breaches

• Failure to Pay

• Defects

• Disagreement on Scope of Work

• Delays/Disruption/Acceleration

• Tort (Property Damage or Personal Injury)

• Warranty Claims

• Indemnity Claims

• Failure to Procure Insurance Claims

• Fraud

• Contract Termination

Damages

• Measuring and Quantifying Damages

• Compensatory

• Consequential

• Liquidated Damages and Penalties

• Proving the Damages and What's Recoverable

Drafting Considerations

• Limit Consequential Damages

• Waiver of Subrogation

• Payment and Project Schedules

• Indemnification

• Warranty

• Insurance and Bonding Requirements

• Attorney's Fees

• Dispute Resolution (Mediation, Arbitration, Litigation, Choice of Law)

Other Remedies

• Tort Claims Not Barred by the Economic Loss Doctrine

• Mechanics Liens

• Bond Claims

• Severin Doctrine (Subcontractor Pass Through Claims)