Construction Risk

Construction Law and Risk Management Resource Center

This website by J. Kent Holland, principal of ConstructionRisk, LLC, is published as a free construction risk management resource. The top menu bar includes drop down menus with numerous articles, papers, and continuing education materials. The sidebar provides a Search box to research legal and risk management topics that have been discussed in our ConstructionRisk.com Report since 1999. The Topics covered include professional liability, indemnification clauses, duty to defend, standard of care, warranties, construction defects, site safety, payment provisions, design-build, construction management (CM) contracts, litigation lessons learned, and much more.

Design Professional Contracts: 1 Minute Construction Risk Management Video Series

Kent Holland created this series of short videos to provide risk management and contract drafting tips for design professional contracts. Each video is one to two minutes in length. At the conclusion of each video, the next one will start automatically. Or you can jump to a different clause of your choice.

ConstructionRisk Report – December 2021

Arbitration Award Affirmed Despite Objections that one of Arbitrators Failed to Disclose Relationship with Two of the Parties

Dec 21, 2021

In an interesting court decision enforcing an arbitration award, the Court of Appeals of Washington, D.C. affirmed a three person arbitration panel’s decision in favor of a contractor against a subcontractor and rejected the subcontractor’s argument that the decision was not issued by an impartial arbitrator because it was tainted by the fact that one of the arbitrators (an attorney) failed to...

Engineer has no Exemption from Liability under Statute Providing Insurance Companies Exemption from Liability

Dec 21, 2021

A summary judgment in favor of an engineer was reversed on appeal, with the court holding that an engineer that performed a post-loss insurance claim investigation was not protected by a state statute exempting liability for furnishing safety inspection or advisory services for insurance carriers. Here, a homeowner suffered property damage and made a claim to their insurance carrier who then...

Implied Warranty and Workmanship Claims Cannot be Waived by Homeowner

Dec 21, 2021

Arizona Court of Appeals held that where homeowner signed a contract that waived its right to make claims against the Builder for breach of implied warranty of workmanship, the waiver was unenforceable. Arizona common law precludes such waiver because it is deemed to be contrary to public policy. Although the courts generally enforce the freedom-of-contract –- that principle applies primarily...

Contract Drafting Tip: The Flow–Down Incorporation by Reference Clause

Dec 21, 2021

This article is written from the subcontractor’s perspective. When negotiating its subcontract, the subcontractor may be successful in obtaining reasonable clauses concerning standard of care, time for performance, indemnification, limited warranties and other significant risk allocation matters. But then, by agreeing to an incorporation by reference clause, the subcontractor agrees that the...

Indemnification – Negotiating a Reasonable Clause

Nov 8, 2021

Check out my 4 minute video showing how our firm redlines changes to an indemnification clause to allocate the risk more reasonably for the Indemintor. This is available on the Kent Holland YouTube Channel. This video addresses key risk allocation issues in a typical indemnification clause. We show how we would recommend redlining to revise an uninsurable indemnity clause under a professional...