Contract Interpretation

Posture Away, You May Still Get Your WayThe Sixth Circuit recently reversed a decision from an Ohio federal court related to whether a party waived its arbitration rights through posturing correspondence written prior to the filing of litigation or arbitration. In Borror Property Management, LLC v. Oro Karric North, LLC (No. 2:19-cv-04375), the Sixth Circuit upheld the defendant’s contractual right to arbitration

Federal Prompt Pay Act Does Not Afford Subcontractors Right to Sue General ContractorOn October 15, 2020, in EMTA Insaat Taahhut ve Ticaret A.S. v. Cosmopolitan Incorporated, a federal district court held that the federal Prompt Pay Act (PPA) (31 U.S.C. §§ 3901, et al.) does not create a private right of action for a subcontractor against a general contractor.  The dispute arose from a project for

Policy Clauses, Exclusions and Endorsements: Language MattersThe Ninth Circuit Court of Appeals just reminded policyholders that while coverage exclusions are to be read narrowly, they must also be read comprehensively.

In Engineered Structures, Inc. v. Travelers Property Casualty Company of America, Engineered Structures, Inc. (ESI) obtained a builders’ risk insurance policy from Travelers Property Casualty Company of America (Travelers) to

Absent Timely Revocation, Government Acceptance Is ConclusiveIn a recent decision, the Armed Services Board of Contract Appeals issued a summary judgment ruling in a case involving government claims relating to the contractor’s supply of thermal sight systems for armored vehicles. The government contended that some of the sights were defective while others were delivered late.

As to the allegedly defective

Subcontractor Certification of Pass-Through Claim — Defective but CorrectableIn June, the Armed Services Board of Contract Appeals (ASBCA) addressed whether it had jurisdiction where a subcontractor pass-through claim was certified under the Contract Disputes Act (CDA) by the subcontractor’s president, not the prime contractor’s representative. In its motion to dismiss, the government argued that under the CDA, only the prime contractor could certify

Contract, Project, and Arbitration in Florida? State Has Personal Jurisdiction Over Action to Enforce Arbitration AwardOn June 24, 2020, in Sayers Constr., LLC v. Timberline Constr., Inc., et al., a Florida District Court of Appeal affirmed a trial court’s denial of a contractor’s motion to dismiss. The contractor moved to dismiss for lack of personal jurisdiction in a dispute with a subcontractor over confirmation of an arbitration award. The

New York is Pro-Choice on Forum Selection ClausesIn Somerset Fine Home Building, Inc. v. Simplex Industries, Inc., the Appellate Division of the Second Department in New York upheld a dismissal based on the plaintiff’s breach of the parties’ forum selection clause. Somerset Fine Home Building entered into a sales contract with a modular home supplier for the purchase of a

Prior Material Breach May Excuse Performance, but the Factfinder Must Agree It Was a Material BreachIn most jurisdictions, a party may be excused from any future performance under a contract by the prior material breach of the other party. A “prior material breach” is typically defined as conduct that deprives the injured party of the benefit that it reasonably could have anticipated from the breaching party’s full performance. This excuse

Walking the Tightrope: Liquidation Agreement “Traps for the Unwary”When crafting a liquidation or “pass-through” agreement for a subcontractor claim against the government, the key provision from the prime contractor’s perspective is a release from any liability for the subcontractor’s claim with the exception of amounts recovered from the government related to that claim. If the release language is too broad, however, the agreement

Does Your Construction Contract Involve Interstate Commerce? If So, Expect Your Arbitration Agreement to Be EnforcedWhether an arbitration agreement is enforceable is a frequently litigated matter in construction disputes. Federal policy strongly favors arbitration. Typically, the Federal Arbitration Act (FAA) will preempt any contrary state law that might otherwise void an arbitration provision. On June 10, 2020, the South Carolina Court of Appeals reaffirmed this view when it overturned a