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

by Kent Holland | Dec 21, 2021 | Newsletter Article

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...

Insurance Carrier could not assert the Contractual Liability Exclusion to Deny Coverage for Breach of Contract Claim that arose out of Negligence

by Kent Holland | Nov 23, 2021 | Newsletter Article

The contractual liability exclusion in a professional liability policy is often used by carriers to deny coverage for liability of the Insured design professional (DP) that arises out of the indemnification article of a contract.  For example, if the DP agrees to...

A Demand Letter to an Insured Architect and Others was not Deemed to be “Claim” that had to be Reported to the Professional Insurance Carrier

by Kent Holland | Nov 23, 2021 | Newsletter Article

Insurance carrier denied coverage under an insured’s professional liability policy because the carrier believed the design professional failed to timely file the claim when it first knew of it, based on a demand letter sent by the project owner to a number of...

Parties Waived their Contractual Rights to Arbitrate

by Kent Holland | Nov 23, 2021 | Newsletter Article

A contract between a homeowner and contractor set forth dispute resolution procedures calling for any dispute to be submitted to an Independent Decision Maker within twenty-one days of the occurrence of the event giving rise to the claim.  Receipt of an IDM decision...

Default Termination was Improper and was Converted to Termination for Convenience

by Kent Holland | Nov 8, 2021 | Newsletter Article

Where a city default terminated its construction contractor that was building the nation’s first arterial roadway with pervious concrete, the contractor filed suit against the city challenging the default, and asking the court to turn it into a convenience...

Liquidated Damages Are Restricted When Contractor Completed Major Two Phases of Three- Phase Government Project

by Kent Holland | Nov 8, 2021 | Newsletter Article

Federal Government Assessed liquidated damages (LDs) against Design-Build contractor who failed to timely complete the final phase of a three-phase contract.  Armed Services Board of Contract Appeals held that the government failed to property apportion the daily LD...