VOLUME 2   ISSUE 48   NOVEMBER 29, 2013


By Bruce Jervis


Commercial contracts, including construction contracts, frequently contain “fee shifting” clauses. If a party is forced to take legal action to enforce its rights under the contract and prevails in that action, the other party must pay the first party’s reasonable attorney fees. This is a contractual modification of the so-called “American rule,” where each party to a dispute pays its own attorney fees.


When these contract clauses are reciprocal, they are fair enough. Sometimes, however, they are unilateral. One party can recover its attorney fees from the other, but the second party has no such right. Unilateral fee-shifting clauses are patently unbalanced and unfair. They are generally imposed by a party with superior financial leverage in the transaction. ... Read more.


Featured in this Week’s Construction Claims Advisor:

  • Sub Not Responsible for Delay – Recovers Retainage, Extras and Attorney Fees
  • Expert’s Referenced Document Admitted at Trial
  • Government Allowed Tactical Conversion to Termination for Convenience


By Steve Rizer


With Thanksgiving approaching, Navigant Construction Forum Executive Director James Zack appropriately offered owners attending WPL Publishing’s recent “Trends in Construction Claims and Disputes” webinar a cornucopia of fruitful advice, such as this nourishing suggestion: “You need to get competent legal advice when considering adding new contract language.”


Zack reported that he and fellow speaker Stephen Pitaniello, a managing director with Navigant Consulting’s Global Construction Practice, have seen situations “where owners find a clause or they hear about a clause used by an owner in another state or something [and say], ‘Man, this is really great! It’ll solve a lot of my problems!’ and they just throw it into the contract” -- a strategy that can cause some unpalatable problems. ... Read more.


By Steve Rizer


Expect documentation times to take longer than normal when pursuing certain credits through version four of the Leadership in Energy and Environmental Design (LEED v4) rating system, which the U.S. Green Building Council (USGBC) rolled out in Philadelphia last week.


When trying to achieve certification through LEED v4, “one of the challenges is that some of the documentation is going to take more time on some of the credits because they’re new credits and people are unfamiliar with the credits,” Lynn Simon, LEED Fellow and senior vice president of Thornton Tomasetti, told reporters during the new version’s official launch. “On the other hand, there are some credits that take less time to document because they’ve been streamlined” in LEED v4. ... Read more.


By Steve Rizer


November 2013 Download Library Addition
As new webinar recordings are made available to the ConstructionPro Network free member Download Library on a monthly basis, ConstructionPro Week will provide a brief summary of each event for the benefit of its readership. Here is the summary for the November 2013 addition:


“I’ve always heard that arbitration panels just tend to ‘split the baby.’ Is that your experience?” This is one of the questions that Navigant Construction Forum Executive Director James Zack fielded during the “Q&A” segment of “Trends in International Construction Arbitration,” a 90-minute webinar for which a recording recently was added to the ConstructionPro Network (ConstructionProNet.com) Download Library -- free of charge for members.


In answering this question, Zack told the webinar audience that in 42 years as a claims consultant, he only has been involved in “maybe one or two cases” in which he saw a 50-50 split. And in one such case, “I did not end up believing they just split the money. I think the issues that were found for and against my client happened to be priced out in such a way that they came out 50-50.” ... Read more.





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