"News and Information for Construction Defect and Claims Professionals"
CONSTRUCTION DEFECT JOURNAL - ISSUE 242749 - FRIDAY, JANUARY 3, 2025
Ambiguous provisions may lead to additional litigation over their interpretation—specifically, whether one party has truly “prevailed.”
When disputes on a construction project escalate to litigation, general contractors may find themselves entangled in a costly and time-consuming legal battle. One important concept to understand is contractual fee-shifting under a “prevailing party” provision, which can significantly impact damages recovered in litigation. The general rule, known as the “American Rule,” requires each party to pay its own legal costs, including attorney’s fees, expert witness expenses, and other court-related costs. This differs from other legal systems where the losing party typically pays the winning party’s fees. One exception to the American Rule is contractual fee-shifting, specifically through “prevailing party” provisions, which allows for the award of attorney’s fees and costs when explicitly provided for in a contract.
This article explores this exception to the American Rule, delves into the challenges posed by prevailing party provisions, and shares tips to consider for drafting these clauses to improve clarity and minimize uncertainty in the face of litigation.
Ms. Kicklighter may be contacted at ckicklighter@joneswalker.com
Reprinted courtesy of Caitlin Kicklighter, Jones Walker LLP
Odedeyi argued that the damage was covered under the contractor's policy and they were liable for the judgment.
Mr. Eyerly may be contacted at te@hawaiilawyer.com
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Glas believes that jurors have changed in the last twenty years, with modern jurors being more reluctant than ever to be seen as a lawyer’s puppet.
Mr. Mackin may be contacted at dmackin@cozen.com
Reprinted courtesy of Douglas J. Mackin, Cozen O’Connor
The rule has enjoyed support from both industry and labor.
Mr. Schaefer may be contacted at jschaefer@rc.com
Reprinted courtesy of Jonathan H. Schaefer, Robinson+Cole
Arbitrators, as well as the parties which arbitrate before them, understand that the form of an arbitration award may be as simple as “calling balls and strikes” to as complicated as a fully “reasoned” award.
Mr. Lund may be contacted at daniel.lund@phelps.com
Reprinted courtesy of Daniel Lund III, Phelps
In the first asbestos matter to go to trial in Rhode Island in close to 40 years, Plaintiffs requested nearly $25 million in compensatory damages for the death of Mrs. Bonito from her alleged exposure to asbestos through the work clothes of her husband.
Reprinted courtesy of Lewis Brisbois
General Construction Investigation - Licensed General Building Contractor CA, AZ, UT, FL
Certified Professional Estimator (ASPE) American Society of Professional Estimators
Extensive testimony experience attendant to numerous commercial and residential construction defect and claims related expert witness designations
(800) 482-1822
www.berthowe.com
Denis explores how AI tools are already enhancing design and supply chains and shares his vision for AI’s eventual integration across every facet of the industry.
Mr. Serkin may be contacted at dserkin@pecklaw.com
Reprinted courtesy of Denis Serkin, Peckar & Abramson, P.C.
Share your firm’s publications, events, CLEs, seminars, and articles relevant to construction defect and claims matters. Enhance your firm's visibility and promote your expertise by reaching our highly targeted audience of decision-makers, including construction attorneys, builders, owners, and claims professionals.
The 18 consecutive years of election to the Legal Elite in the Construction Category span Mr. Hill's nearly 15 years as a solo construction attorney.
Mr. Hill may be contacted at chrisghill@constructionlawva.com
Reprinted courtesy of The Law Office of Christopher G. Hill
The US District Court for the Western District of Louisiana ruled that Amazon could be liable for manufacturer-seller liability under the Louisiana Products Liability Act for a defective product sold by a third-party seller.
Mr. Ciamaichelo may be contacted at ciamaichelom@whiteandwilliams.com
Reprinted courtesy of Michael Ciamaichelo, White and Williams LLP
David manages every phase of litigation, from arguing motions for summary judgment to negotiating settlements.
Ms. Carter may be contacted at lcarter@kahanafeld.com
Reprinted courtesy of Linda Carter, Kahana Feld
The 30,000-seat Major League baseball stadium planned for the Strip in Las Vegas is expected to break ground in the second quarter of next year.
Reprinted courtesy of Doug Puppel, ENR
The new tower, 1000M, and ongoing work to restore the city’s famed Thompson Center showcase the lasting influence of Helmut Jahn on the Chicago cityscape.
Reprinted courtesy of Mark Byrnes, Bloomberg
This shows how their backgrounds in manufacturing, design, and technology led them to tackle inefficiencies in the construction industry.
Mr. Heiskanen may be contacted at aec-business@aepartners.fi
Reprinted courtesy of Aarni Heiskanen, AEC Business
California Architectural Registration Board Supplemental Examination Commissioner
(800) 482-1822
www.berthowe.com
Reprinted courtesy of Michael Sasso, Bloomberg
Mr. Ichniowski may be contacted at ichniowskit@enr.com
Reprinted courtesy of Tom Ichniowski, ENR
Weekly Construction Defect and Claims News - Direct to Your Inbox
Bert L.. Howe & Associates, Inc., provides construction-related expert witness investigation and trial support services to the nation's most recognized publicly traded builders, commercial general liability carriers, law firms, and construction practice groups. To schedule a no-cost consultation with a construction or design expert possessing the credentials, licensures, and qualifications best suited to your matter, please contact us at 800.482.1822
Certified Professional Estimator (ASPE) American Society of Professional Estimators
Licensed General Contractor (778968), State of California, Licensed General Contractor (072729), State of Nevada
Fire Loss Reconstruction Cost Estimating Expert
(800) 482-1822
www.berthowe.com