Termination for Convenience Clause does not require Reason for Termination or Render Contract Illusory

by Kent Holland | Dec 23, 2015 | Newsletter Article

J. Kent Holland, J.D. Where a subcontractor sued the prime contractor for wrongfully issuing a termination for convenience, the trial court found in favor of the prime contractor, concluding that as a convenience termination a prime is not required to have a reason...

Only Jury (and not the trial judge) Can Use the Parties’ Course of Dealings to Determine the Meaning of an Ambiguous Contract

by Kent Holland | Dec 23, 2015 | Newsletter Article

J. Kent Holland, J.D. A trial court erred when it considered the course of dealings of the parties to determine the meaning of a design professional contract, and then issued a jury instruction advising the jury that the contract was not ambiguous. As a result, a $2...

Contractor’s Code Violation Does Not Create Negligence Cause of Action by Subsequent Homeowner

by Kent Holland | Dec 23, 2015 | Newsletter Article

J. Kent Holland, Esq. A subsequent (non-original) homeowner may not bring a negligence suit against a homebuilder for economic losses arising from latent construction defects when there has been no physical injury to persons or property. The builder’s violation of a...

Where Flow-Down Clause Limits Incorporation Of The Design-Build Prime Contract, Allocation of Liability In The Subcontract Will Govern

by Kent Holland | Dec 7, 2015 | Newsletter Article

Gail S. Kelley, P.E., J.D. ConstructionRisk, LLC In February 2002, the Inn of the Mountain Gods Resort and Casino in New Mexico (Owner) contracted with Centex/Worthgroup, LLC (Centex) for a design-build expansion and renovation project. Centex then subcontracted with...

CGL Policy Held to Cover Costs of Correcting SubContractor’s Defective Work Including the Work Itself

by Kent Holland | Dec 7, 2015 | Newsletter Article

Gail S. Kelley, P.E., J.D. ConstructionRisk, LLC After discovering various defects in their home, the homeowners filed suit against their builder. The builder’s insurance company declined to defend the action (“the underlying action”) on behalf of builder, alleging...

Indemnification Action Only Accrues for Statute of Limitation Purposes on Date Indemnitee Pays Judgment or Settlement

by Kent Holland | Dec 7, 2015 | Newsletter Article

Kent Holland, J.D. ConstructionRisk, LLC Where a subcontractor failed to honor its contractual indemnification obligations to defend and indemnify a swimming pool installation general contractor against claims arising out of the subcontractor’s work, the general...