Industries: Construction

Litigation: Settlement Negotiation, Mediation, Arbitration & Trial

Our attorneys have handled construction matters before all tiers of the state and federal court system, and before state and federal administrative agencies and contract appeals boards. We also have participated in domestic and international construction arbitration proceedings of all types, including private and court-supervised, commercial and labor. While we have a long history of representing clients in arbitrations and mediations, several of our lawyers are active arbitrators and mediators through various alternative dispute resolution organizations.

We have significant experience with the issues that traditionally arise in construction disputes, including defects and claims for extra work, as well as delay and disruption issues. We use sophisticated scheduling techniques to monitor and evaluate field construction; and to prepare and defend clients against claims for additional compensation, extensions of time, relief from imposition of liquidated or actual damages, and default termination.

Our experience also includes calculating extended project costs and unallocated home-office overhead, utilizing the Eichleay and similar formulas. We have handled claims arising from incomplete or defective design (warranty of specification suitability), inadequate and uncoordinated project management, excessive changes (cardinal change), impossibility and commercial impracticability, differing site conditions, slope and shoring failures, and other soils-related problems.

Claims have also involved denial of site access, defective materials and equipment, improper inspection, failures of concrete and other structural elements, safety violations, rejection and repair of nonconforming work, inadequate crew-loading, environmental hazards, terminations for default and convenience, mechanics’ liens, stop notices, payment and performance bonds (including federal Miller Act and state Little Miller Act bonds), and post-completion warranty issues.

Representative Work

Energy

• Representation of a Fortune 500 utility in a multiparty, multimillion-dollar power plant construction arbitration for a two-on-one 550-MW combined cycle power plant in Ohio. The arbitration lasted 40 days before resolution, and included hundreds of thousands of pages of electronic and paper documents in discovery.
• Conducted a legal audit and investigation to identify the cause and culpability for more than $400 million in cost overruns on a natural gas pipeline project, and thereafter instituted suit against one of the contractors providing professional services for the construction.
• Representation of the subcontractor for mechanical erection of two 250-MW circulating fluidized bed boilers in Seward, Pa. The prime contractor terminated the subcontract for alleged non-performance, filed suit, and seeks in excess of $80 million in damages. The subcontractor counterclaimed for an amount in excess of $40 million, claiming the termination was wrongful, and that the prime contractor had otherwise breached its contract in various forms including inter alia actively interfering with project performance, failure to provide project access, and failure to meet obligations related to site storage and maintenance. We also represented the subcontractor in related mechanics’ lien claims filed against the project in the amount of $36 million. The case settled favorably to our client on the eve of trial.
• Representation of a large Midwest-based utility in a multimillion-dollar case in the Eastern District of Virginia's Rocket Docket. The case involved breach of contract and indemnification claims arising out of a horizontal drilling pipeline project. We worked closely with in-house counsel, management, employees in the field, and outside experts to secure a favorable settlement.

Government & Community

• Representation of the property owner in complex litigation involving claims for differing site conditions and delay. The representation concluded in a settlement of the contractor’s claim for pennies on the dollar, and established that the delay claims were caused by the contractor and not differing site conditions.
• Representation of a subcontractor in defense of a claim against multiple defendants for alleged defective work in two phases of construction of the New Orleans Convention Center. The matter was settled with little additional expense to the client related to minimal remedial work to be performed.
• Representation of a private nonprofit applied science and technology development company in litigation related to the construction of the Higher Education Applied Technology Center (HEAT Center) in Aberdeen, Md. The action involves claims related to change orders and construction performance.
• Representation of a municipality in a breach of construction contract action in state court involving a roof failure of an outdoor amphitheater.
• Representation of a hospital in connection with termination of its construction manager for a hospital addition and medical office building. The matter was mediated.
• Representation of a client as a qualified energy services contractor (ESCO) for a guaranteed energy performance rehabilitation of a school district. The matter was mediated.
• Defended several municipalities, and public water and sewer authorities in multimillion-dollar impact/delay claims.
• Prosecuted a major delay, impact and disruption claim arising from construction of a $5 million academic building.

Industrial

• Commenced an arbitration on behalf of our client for $15 million in unpaid contract amounts, and other damages related to engineering and other services provided for the construction of an oil refinery flue gas scrubber in California.
• Representation of the owner in defense of claims for unpaid contract amounts related to the rehabilitation of an automated overhead monorail system for a glass factory. Received an arbitration award reducing the claimed contract balance by half.
• Representation of an architectural firm that was hired to construct a mezzanine and TO complete other plant expansion at a manufacturing facility in Ankeny, Ind. When the mezzanine developed cracks, the architectural firm filed suit against our client and a subcontractor hired by our client for several million dollars for breach of contract, breach of warranty, and negligent design and construction. After extensive litigation, the case was settled for $50,000, even though the claim was for millions. Our client subsequently filed suit against a subcontractor for contribution and implied indemnity. This matter also resulted in a settlement favorable to our client.
• Representation of a subcontractor seeking recovery and unpaid contract balances of approximately $1 million for an intermodal terminal located in Port Elizabeth, N.J. The case was arbitrated before a three-member panel producing an award for our client in excess of $800,000.
• Defended a claim of owner and prosecuted claim of design/build general contractor against roofing subcontractor related to a cold storage facility.

Commercial/Residential

• Representation of a civil engineering firm in connection with a landslide compromising a detention pond in a residential development, causing an alleged several hundred thousand dollars or more of damage.
• Representation of a company in litigation arising out of a commercial development project in Newport News, Va., stemming from alleged change orders and back charges.
• Representation of a national supplier in mechanics' liens and suit to enforce them against the owners of two commercial buildings. The owners counterclaimed, alleging negligent installation and/or installation of defective wallboard causing mold to develop inside the project walls.
• Representation of the property owners in a multiday trial in which the contractor was terminated for refusing to correct dozens of construction defects and allowing water to infiltrate a multimillion-dollar home.
• Obtained specific performance on behalf of a major real estate developer in a case involving anticipatory breach of contract to purchase multiple condominium units.
• Representation of an insurance company in its dispute with the developer/builder of a large apartment complex.
• Representation of an African American parish church in litigation with general contractor.
• Counseled a lender in its claim for faulty construction against the development of a large office complex.

Infrastructure

• Served as lead counsel in this complex construction dispute arising from a $250 million expansion of the authority’s advanced wastewater treatment plant. The case involved allegations of delay, impact, disruption, subcontractor default, scope of work, and the enforceability of contract provisions. We handled a protracted mediation over almost one year, and the matter was resolved.
• Representation of a national contractor against a developer. A dispute arose over payment, performance and schedule. The contractor filed a mechanics’ lien case that was bonded off, then pursued the claim through discovery. Subpoenas and depositions of the developer's engineering firm and expert witnesses proved that the developer's engineering firm had misrepresented to the developer the progress reports and work completed after termination. The developer settled the matter shortly after deposition.
• Representation of a leader in the rehabilitation of underground pipelines in litigation involving claims of trade disparagement, interference with contractual relations, and other related theories corresponding with the local sewer and water authority concerning a competitor’s bid. The defendant counterclaimed for unfair competition. The case settled with payment to the defendant on its counterclaims.