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#112:  Owners' Implied Warranty Rights Against Subcontractors

4/26/2022

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A few years back I blogged (#84) that owners generally lack “third party beneficiary” rights required in order to enforce subcontracts.  While some commercial subcontracts do extend the subcontractor’s express warranties to the owner, such provisions are rarely found in residential construction, where there is often no express warranty in the subcontract at all.  But what about the implied warranty of good workmanship (#4)?  Does it apply to subcontractors’ work as well?  Is it enforceable by the owner despite the lack of a contractual relationship between the two?
 
Until our Supreme Court weighs in, we can only make an educated guess here.  Lempke v. Dagenais, 130 N.H. 782, 789 (1988), held that in the residential context “the privity requirement should be abandoned in suits by subsequent purchasers against a builder or contractor for breach of an implied warranty of good workmanship for latent defects.”  Some of the Court’s expressed rationale for extending that warranty to remote purchasers – most notably, that implied warranties are not founded on contract but on public policy – would suggest that privity of contract is irrelevant to an owner’s implied warranty suit against a subcontractor.  But other factors mentioned in Lempke are specific to subsequent purchasers suing builder-vendors.
 
Some courts that allow subsequent purchaser suits for breach of implied warranty against the builder-vendor refuse to allow them against subcontractors.  See Moglia v. McNeil Co., Inc., 270 Neb. 241, 700 N.W.2d 608 (2005); Yanni v. Tucker Plumbing, Inc., 312 P.3d 1130 (Ariz.App. 2013).  Lempke itself relied heavily on an Illinois decision, Redarowicz v. Ohlendorf, which allowed a subsequent purchaser to sue the original builder for breach of implied warranty of habitability, finding that “[p]rivity of contract is not required,” id. at 183.  But Illinois has declined to abandon the privity requirement when it comes to suits against subcontractors.  Sienna Court Condominium Ass’n v. Champion Aluminum Corp., 129 N.E.3d 1112, 1121 (Ill. 2018) (“The purchaser of a newly constructed home may not pursue a claim for breach of an implied warranty of habitability against a subcontractor where there is no contractual relationship.”).

Other courts have allowed direct homeowner suits against subcontractors only if there is no recourse against the general contractor.  Raymond v. Rahme, 78 S.W.3d 552, 563 (Tex. App. 2002) (holding that because a property owner has recourse against the general contractor with whom he contracted, “there is no compelling public policy reason to impose an implied warranty against a subcontractor”); Minton v. The Richards Group of Chicago, 116 Ill. App.3d 852, 856, 452 N.E.2d 835 (1983) (“where the innocent purchaser has no recourse to the builder-vendor and has sustained loss due to the faulty and latent defect in their new home caused by the subcontractor, the warranty of habitability applies to such subcontractor.”).

Still other courts allow homeowners to bring negligence claims against subcontractors regardless of recourse against the builder-vendor.  See A.C. Excavating v. Yacht Club II Homeowners Association, Inc., 114 P.3d 862, 865 (Colo. 2005) (“subcontractors owe homeowners a duty of care, independent of any contractual obligations, to act without negligence in the construction of homes.”).  Even the economic loss rule, which ordinarily bars recovery in a negligence action of the costs or repair and replacement of defective work, “has no application to this case because the Association’s negligence claim is based on a recognized independent duty of care,” id.  (New Hampshire likewise recognizes the “independent duty” exception to the economic loss rule, but thus far only for parties in privity of contract.  Wyle v. Lees, 162 N.H. 406, 410 (2011).)
 
A clue as to which of the three approaches New Hampshire will favor may be found in Healy v. Telge, 139 N.H. 407 (1995), which dismissed a homeowner’s implied warranty claim against the seller who wasn’t also the builder, but allowed an implied warranty claim to proceed against the septic installer hired by that seller.  Strictly speaking, that installer wasn’t a “subcontractor.”  But Healy did permit a homeowner without recourse against the builder to sue the installer of just one component part of the house for breach of implied warranty, despite lack of privity.
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#111:  The "One Year" Warranty: Myth and Reality

3/26/2022

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A common misperception among commercial contractors, particularly those who use standard form contracts, is that their warranty obligations only last for a year.  While contracting parties are free to agree to limit warranties to a one-year duration by explicit language in their contracts, that is not the approach taken by most standard form contracts – except in one limited instance.
 
The AIA’s popular A201 (2017) General Conditions imposes several warranty obligations on the contractor.  The basic one is found in Section 3.5.1, warranting that “materials and equipment furnished under the Contract will be of good quality and new unless the Contract Documents require or permit otherwise,” and that “the Work will conform to the requirements of the Contract Documents and will be free from defects, except for those inherent in the quality of the Work the Contract Documents require or permit.”  Almost identical language is found in Section 3.8.1 of ConsensusDocs 200 – Standard Agreement and General Conditions Between Owner and Constructor.  These clauses include no time limits, so the general statute of limitations applies (in New Hampshire, three years from when the defect was or should have been discovered).
 
Then there is A201 Section 12.2.2.1, the so-called “call back” remedy (I hesitate to call it a “warranty” because it is a promise that the contractor will act, not that the construction will conform to some standard): “In addition to the Contractor’s obligations under Section 3.5, if, within one year after the date of Substantial Completion of the Work or designated portion thereof . . . any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of notice from the Owner to do so. . . During the one-year period for correction of Work, if the Owner fails to notify the Contractor and give the Contractor an opportunity to make the correction, the Owner waives the rights to require correction by the Contractor and to make a claim for breach of warranty.”  Section 3.9.1 of ConsensusDocs 200 contains a like provision.
 
Most of the case law and commentary discussing the relationship between these two sections focuses on the duration of the general warranty, concluding that it is independent of and not circumscribed by the one-year period found in the call back provision.  But scant attention has been paid to the scope of the waiver attending an Owner’s failure to notify and provide the Contractor with an opportunity to address known deficiencies.  Under the A201, such failure waives not only the Owner’s call back rights after the one-year period expires, but also the Owner’s right “to make a claim for breach of warranty.”  The last sentence of Section 3.9.1 of ConsensusDocs 200 is similar, providing that the Owner's failure to give notice and opportunity to cure defects discovered within the first year "waives the Constructor’s obligation to correct that Defective Work as well as the Owner’s right to claim a breach of the warranty with respect to that Defective Work.”
 
The effect of these form contracts is to limit a contractor’s warranty obligations to one year after substantial completion only when the Owner has discovered defective work during that year and failed to afford the contractor an opportunity to fix it – resulting in its deemed acceptance by the Owner.  Since only intentional relinquishment of known rights can result in a waiver, and because the underlying goal of encouraging contracting parties to resolve performance issues among themselves is only achievable if they know about those issues, the trigger for this waiver is actual discovery of the defective work during the first year, not whether the owner reasonably should have discovered it.
 
Not all form contracts include this waiver (the EJCDC’s C-700 – Standard General Conditions of the Construction Contract, for example, has a one-year call back remedy but omits any associated waiver language), and those that do can of course be modified.  But in my view, this particular waiver – a back door into a one-year warranty – strikes a fair balance.
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#110:  Who Owns The Float?

2/26/2022

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In large commercial projects it is common for contractors to present owners with a schedule for the work to be performed using the so-called “critical path method,” or CPM.  A CPM schedule identifies in logical sequence the tasks which must be performed in order to complete the project, assigning an estimated duration for each one.  A task on the critical path is “critical” whenever a delay in its performance will delay the project’s ultimate completion.  Thus, if unforeseeable causes or an owner’s conduct delays the performance of a critical path item, an extension of time, if not damages for delay, may be in order.

But not all scheduled tasks are “critical” in this sense.  Many can be performed at any time within a given period without affecting completion of the entire project – i.e., the time slot calendared for performing the task is larger than the amount of time it will actually take to perform it.  CPM schedules quantify this leeway by assigning these tasks early start/late start dates or early finish/late finish dates (it doesn’t matter which, since the result is the same either way).  “The time difference between the early start and late start or the early finish and late finish of each activity is ‘float,’ that is, the time that the start of the activity can be delayed without affecting the critical path and timely completion of the project.”  5 Bruner & O’Connor Construction Law § 15:8.  In other words, the float “represents the amount of scheduling discretion or flexibility that may be available for that activity before its total project duration will be adversely affected.” Id.

Of course, if the project is to get finished on time every task has to be completed by the specified project completion date.  An activity with zero float is necessarily on the critical path, i.e., any delay to completion of that activity will delay completion of the project.  Once a non-critical activity’s float is gone, bingo – it has just become a critical path item!  And this raises an interesting question: how to handle contractor claims for time extensions or delay damages when, through no fault of the contractor, a non-critical path activity is delayed such that all of its float is destroyed.

The answer depends on whether the contractor or the owner “owns the float.”  If float is available to absorb the impact of an unavoidable or owner-caused delay to a non-critical path item, owners argue that the contractor does not need an extension of time and has not suffered delay damages, while contractors argue that the float was their cushion which could have been used to speed up ultimate completion, and the delay deprived them of that earlier completion opportunity.  Once all of the float associated with the task is consumed and it ends up on the critical path, further delay is certainly grounds for extension (and perhaps damages).  If the owner owns the float, time extension (or owner liability) is only for the length of delay in excess of the float days.  If the contractor owns the float, time extension (or owner liability) may be for the entire length of the delay.

But here's the rub:  Even if the float is owned by the contractor, any loss of float that does not affect the critical path could entitle it to extra time or money only “if the contractor establishes that it could realistically complete the project early,” Weaver-Bailey Contractors, Inc. v. United States, 24 Cl. Ct. 576, 578 (1991).  Without that proof, loss of contractor-owned float that does not impact the critical path is legally irrelevant.  That should give some comfort to owners.  Nevertheless, I am seeing with increasing frequency contract provisions dictating that the owner owns the float, or that the float is consumable by whichever party first needs it – colloquially, that the project owns the float.

Since it is the owner who usually drafts commercial construction contracts, such clauses are driven by the perception (which I happen to share, although I can point to no court case explicitly so holding) that if the contract is silent, the contractor owns the float.
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#109:  Liability Insurers' Duty to Defend

1/30/2022

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When a contractor or subcontractor is sued for defective workmanship, one of his first thoughts is likely to be whether the damages are covered by his liability insurance.  As I have noted elsewhere (Blog # 37), the cost of repairing defective work itself (as opposed to the cost of addressing any resulting damage to other property) is rarely covered by the defendant’s insurance policy.  But if the plaintiff’s complaint also alleges some resulting property damage, however minor, the insurer is obliged to defend the lawsuit.

An insurer’s duty to defend is triggered by comparing the allegations of the plaintiff’s complaint with the policy’s coverages to see if there is any overlap.  Todd v. Vermont Mutual Insurance Co., 168 N.H. 754, 759 (2016) (“An insurer’s obligation to defend its insured is determined by whether ‘the cause of action against the insured alleges sufficient facts in the pleadings to bring it within the express terms of the policy.’”)(quotation omitted).  If there is overlap, the insurer must defend the lawsuit in its entirety, even though repair of the defective work itself is not a covered loss.  Titan Holdings Syndicate, Inc. v. City of Keene, 898 F.2d 265, 269 (1st Cir. 1990) (applying New Hampshire law) (“If some of the claims against the insured fall within the terms of coverage, and some without, the insured must still defend the entire claim (at least until it is apparent that no recovery under the covered theory can be had) . . .”)  Parsing of claims and theories, and furnishing a defense to only the covered ones, is not allowed.

But settling them is.  As long as the policy language reserves settlement authority to the insurer – which is typically the case – the insurer can settle with the plaintiff on just the covered claims.  At that point, is its duty to defend at an end, leaving the defendant to hire his own attorney to defend the non-covered claims going forward?

No New Hampshire court has yet tackled this question, but the Restatement of the Law of Liability Insurance (2018) § 18 takes a stand on it: “An insurer’s duty to defend a legal action terminates only upon the occurrence of one or more of the following events: . . . (3) Final adjudication or dismissal of parts of the action that eliminates any basis for coverage of any remaining parts of the action . . . (5) Partial settlement of the action, entered into with the consent of the insured, that eliminates any basis for coverage of any remaining parts of the action . . .”  Either one of these subsections might apply to our question, although subsection (5) is the more specific, addressing settlement directly.  At least one court, however, has interpreted subsection (3), which is silent on consent of the insured, to embrace dismissals by settlement.  Burka v. Garrison Property and Casualty Ins. Co., 521 F. Supp. 3d 97, 108 (D. Me. 2021) (“a duty to defend terminates upon final adjudication or settlement of the insurable part of the underlying lawsuit or settlement”).

The argument that the insured’s consent to a partial settlement should be required is in tension with the principle that the parties’ contract should determine their rights.  Some policies do contain “consent to settle” clauses, giving the insured a voice in the settlement decision but providing that such consent shall not be unreasonably withheld.  (Many professional liability policies have them.  Few commercial general liability policies do.)  But if the policy is silent on consent to settlement, implying such a right is problematic – particularly if the insured were to have unfettered discretion to withhold it, regardless of reasonableness.  Withholding consent to a partial settlement solely to keep the insurer on the hook for defense costs might well be deemed unreasonable.  And if the policy provides for reimbursement of an insurer’s defense costs incurred where there was no duty to defend, the contractor may end up paying anyway.

In the end, an insurer-provided defense for uncovered claims in a mixed covered-and-uncovered claim case is likely to survive to the end of the case only if the damages to other property are substantial as a percentage of the total.
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#108:  Replacement Contractor Issues

12/19/2021

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When a contractor abandons or is terminated from a construction project before substantial completion, one of the first tasks for the owner/developer (or for the contractor’s performance bond surety if such a bond exists) is to locate and hire a replacement contractor.  If the original contract went south due to defective workmanship issues, the newcomer will be tasked not only with finishing up uncompleted scope, but with correcting existing mistakes.  It is certainly possible, even wise, for the new contractor to disclaim any liability for his predecessor’s work, but at the end of the project teasing apart the respective responsibilities for any issues with the finished product can be challenging.

One of the certainties in life, right up there with death and taxes, is that the price tag for completion will exceed the original contractor’s unpaid contract balance.  Fearful of their own warranty liability, the time-honored approach of completion contractors has been to err on the side of correcting any work that may even marginally impact satisfactory completion of remaining work.  At the bid stage, even with the original plans and specs and any change orders or updated drawings in hand, the completion contractor won’t be able to spot every potential error in the existing work, and so will pad his bid – or insist on a cost-plus arrangement – to protect himself against unseen issues. Cha-ching!

Faced with this, the owner/developer must anticipate that litigation with the original contractor may ensue, and will want to preserve the evidence of how the project was left at the point of abandonment or termination.  Photographing and videotaping the stage of construction before the completion/correction process begins is always smart, but that snapshot-in-time sufferers from the same challenges that the completion contractor faces at bid time; all possible construction defects won’t be observable on Day 1.  It’s a good idea to keep the camera handy to document things when what was once latent becomes patent – and to insist that the completion contractor call out newly observed defects before proceeding with a fix.

If the original subcontractors can be wooed back to the job (or better yet, have already agreed to the assignment of their subcontracts to the owner in the event of the contractor’s termination), there may be a basis for correction of at least their deficient work without additional cost.  This assumes that the completion contractor is required to employ them – a provision that the owner (or performance bond surety) may wish to insist on, but that the completion contractor may resist (why break the huddle with a sub who dropped the ball when the prior QB threw it a pass?).

When the owner sues the original contractor for the difference between the cost of finishing the work and the unpaid balance due on the contract – the usual measure of damages in such cases, see McMullin v. Downing, 135 N.H. 675, 677-78 (1992) – the contractor will of course insist that the completion costs were excessive or unnecessary.  Who has the burden of proof on this issue?  Parem Contracting Corp. v. Welch Construction Co., Inc., 128 N.H. 254, 259 (1986), gives an answer in the analogous context of a terminated subcontractor [Parem] defending a counterclaim by a general contractor [Welch] for costs incurred to complete the sub’s work:

“Welch had the burden in the first instance of proving the extent and amount of its damages. [citation omitted]  It was required to show that the claimed expenditures were incurred solely in completing work that Parem had agreed to perform and obtaining materials that Parem had agreed to supply.  However, once the trial court found that the costs actually were incurred as alleged, it was not permitted to conclude that they ‘could have been avoided’ in the total absence of evidence to that effect.  Parem, not Welch, had the burden of going forward with evidence that all or part of the costs could have been avoided without undue risk or burden” [citations omitted].

This burden-shifting framework should apply equally to owners’ claims against terminated contractors.  Nevertheless, owners would do well to support their costs of completion/correction by documenting deficiencies in workmanship as best they can.
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#107:  "Prevailing Party" Attorneys' Fees Provisions

11/26/2021

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In 279 B.C. the Greek king Pyrrhus defeated the Romans at the Battle of Asculum but lost much of his army in the process.  He reportedly said “If we are victorious in one more battle with the Romans, we shall be utterly ruined!”  Thus was coined the phrase “Pyrrhic victory” – a win that inflicts such a cost on the victor that it amounts to defeat.  And any trial lawyer you ask can point to cases in which the cost of litigation resulted in a Pyrrhic victory for the client.
 
Contracting parties can and often do agree that in the event of litigation between them, the “prevailing party” will be paid his attorneys’ fees incurred in the fight.  On the assumption that any monetary judgment in the plaintiff’s favor, no matter how small, renders him the “prevailing party,” this type of fee-shifting provision is thought by some litigants to be a balm against the sting of Pyrrhus.  And sometimes it is.  A recent case from Tennessee affirmed an award of $201,255.50 in attorneys’ fees to a homeowner who sued for $12,400 and won a $6,800 jury verdict on a breach of contract claim.  G.T. Issa Construction, LLC v. Blalock, No. E2020-00853-COA-R3-CV (Tenn. App. Nov. 23, 2021).
 
The fly in the ointment, however, is the court’s power to determine the amount of attorneys’ fees that will be awarded.  A “win” that is grossly disproportionate to the attorneys’ fees incurred in achieving it can lead to an award of less than all of those fees.  In New Hampshire, attorneys’ fee awards take into account “the amount involved, the nature, novelty, and difficulty of the litigation, the attorney’s standing and the skill employed, the time devoted, the customary fees in the area, the extent to which the attorney prevailed, and the benefit thereby bestowed on his clients.”  Funtown USA, Inc. v. Town of Conway, 129 N.H. 352, 356 (1987).  The requirement to consider both the amount sought and the degree of success falls short of an explicit directive to compare the outcome of trial with the bill, but in practice that is often what happens.  I have seen several New Hampshire courts cut down an award of fees where outcome and bill are wildly disparate.  Pyrrhus lives!
 
Judicial reluctance to approve fee applications that dwarf the amount of a judgment or verdict is at its peak when the fee-shifting provision is contractual rather than statutory.  In the statutory setting, fee awards are designed “to encourage suits that are not likely to pay for themselves, but are nevertheless desirable because they vindicate important rights.”  Diaz v. Jiten Hotel Management, Inc., 741 F.3d 170, 178 (1st Cir. 2013) (affirming an attorneys’ fee award of $104,626.34 on a $7,650 verdict under a Massachusetts anti-discrimination statute).  But a suit for breach of a contract with a prevailing party fee-shifting provision implicates no public policy to encourage suits that would otherwise not be cost-effective.
 
One way that courts reduce attorneys’ fee awards below the amounts incurred is by disallowing fees spent pursuing claims or legal theories on which the plaintiff did not prevail.  LaMontagne Builders, Inc. v. Brooks, 154 N.H. 252, 261 (2006) (“Where a party prevails upon some claims and not others, and the successful and unsuccessful claims are analytically severable, any fee award should be reduced to exclude time spent on unsuccessful claims.”).  In the construction setting, however, that type of severability is rare; it will almost always turn out that “the evidence necessary to prove liability under one theory was also relevant to proving liability under the other theory,” id.  The prevalence of multiple claims in mine run construction disputes – breach of contract, unjust enrichment, negligence, Consumer Protection Act, etc. – will thus exacerbate the Pyrrhic problem. 
 
Because parties are masters of their own contracts, they can craft fee-shifting provisions as they see fit.  For example, a prevailing party fee-shifting clause might cap the plaintiff’s recoverable attorneys’ fees at the amount of the verdict or judgment, thereby maintaining a disincentive to sue over small disputes, while capping the defendant’s recovery at the amount of the claim, thereby incentivizing reasonable settlement offers.
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#106:  Construction Mortgage Priority and Direct Payments to Subs/Suppliers

10/30/2021

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A few years back I blogged (#44) on the relative priorities of construction mortgages and mechanic’s liens under RSA 447:12-a.  Regardless of who recorded first at the registry of deeds, that statute affords priority to mechanic’s liens except in two scenarios.  The one which concerns us here grants the mortgagee priority “to the extent that the mortgagee shall show that the proceeds of the mortgage loan were disbursed . . . toward payment of invoices from or claims due subcontractors and suppliers of materials or labor for the work on the mortgaged premises.” 
 
The statute does not explicitly state that such disbursements must go directly to subs and suppliers.  Is it enough that the payments went to a general contractor who then used the money to pay subs and suppliers?
 
Lewis v. Shawmut Bank, 139 N.H. 50 (1994), answers in the negative.  The Court interpreted the statute to require the mortgagee to “show that the disbursements . . . were made directly to subcontractors as payment . . . While the evidence in this case may well support a finding that more than $565,001 of disbursements is in some sense traceable to the payment of subcontractors, priority is afforded only to those disbursements traceable by either of the two methods described in the statute, i.e., disbursement checks payable to subcontractors, or disbursement checks payable to the mortgagor coupled with prior affidavits of payment. The record in this case contains no evidence that disbursements to G.M. were in response to affidavits attesting to payments made by G.M.; accordingly, the defendant has priority only for those disbursements made directly to subcontractors. The record, however, does not support a finding that any disbursements were made directly to subcontractors. We conclude that the plaintiff’s mechanic’s lien has priority.”  Id. at 54 (emphasis in original).
 
This result was perhaps foreshadowed by L.M. Sullivan Co. v. Essex Broadway Savings Bank, 117 N.H. 985, 990 (1977) (“[B]ecause defendant failed to prove that any other disbursements of its mortgage loan were made to those individuals specified in RSA 447:12-a . . . the remainder of defendant’s mortgage was subordinate to Sullivan’s mechanic’s lien.”) (emphasis added).
 
Further evidence of legislative intent to require direct payments is suggested by RSA 447:12-b, which obliges construction lenders to post their identity conspicuously at the job site and requires would-be lienors to “provide written notice to the institution providing the construction funds that such person is furnishing services, materials, supplies or other things.”  This statute is designed to give lenders a ready means to identify subs and suppliers, so that they can protect their mortgages from lien priority by either gathering lien waivers as a condition of disbursement, or making direct payments (by joint check or otherwise) to those not signing such lien waivers.
 
In the normal course of progress payments on a construction project, lenders do not pay subs and suppliers directly.  For reasons of efficiency – and to avoid injecting themselves into potential disputes between general contractors and subcontractors/suppliers – it is almost always left to the general contractor to make those latter payments.  Lewis has done nothing to change this routine practice.  Lenders typically take on the more cumbersome procedure of disbursing payments directly to subs and suppliers only when alerted to their claims of nonpayment.
 
Why should it matter whether subs and suppliers were paid by the mortgagee directly rather than through disbursements to the owner or general contractor which then made their way to those subs and suppliers?  It is not easy to spot the policy rationale – until we consider that payment to subs and suppliers from any source already protects lenders by reducing their exposure to liens.  Subs and suppliers perfect mechanic’s liens only for what remains unpaid.  Whether the paid portion of their labor or materials resulted from a GC’s check or an owner’s check is immaterial; the lender benefits either way.  But protection against liens for any unpaid portion – the only portion that matters – requires ensuring the subs’ or suppliers’ receipt of funds, and there is no way to ensure this other than by making disbursements directly.
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#105:  Nonmutual Arbitration Agreements

9/28/2021

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Many construction contracts and subcontracts provide for arbitration of disputes.  Some of them give just one of the parties an option to require arbitration.  Such unilateral arbitration clauses are viewed by some courts with disfavor.  See DiMercurio v. Sphere Drake Insurance, PLC, 202 F.3d 71, 81 (1st Cir. 2000) (“We adhere to our view that one-sided agreements to arbitrate are not favored.”).  Are they nevertheless enforceable in New Hampshire?
 
To be enforceable, contracts require “consideration,” a bargained-for exchange of value or promises of value on both sides.  A legal doctrine called “mutuality of obligation” – or in lay terms, if both sides are not bound, neither side is – comes into play here.   It is clear that “the equal obligation . . . to arbitrate disputes . . . is enough to ensure mutuality of obligation and thus constitute consideration,” Rosen v. Genesis Healthcare, LLC, No. 20-cv-1059-PB, 2021 WL 411540 (D.N.H. Feb. 5, 2021).  But when an equal obligation to arbitrate is absent, matters are less certain.
 
If the mutuality requirement is applied separately to the arbitration provision within a larger contract, chances are that a unilateral arbitration clause will not be enforced.  Such was the case in United States ex rel. Birckhead Electric, Inc. v. James W. Ancel, Inc., 2014 WL 2574529 (D. Md. June 5, 2014), a payment dispute between a subcontractor and contractor on a federal project.  The contractor sought to compel arbitration based on the following clause in the subcontract: “All disputes between the Contractor and Subcontractor, not involving the Owner’s act, omissions or responsibilities shall, at the Contractor’s sole option, be resolved by arbitration in accordance with the rules of the American Arbitration Association.”  The court sustained the subcontractor’s objection that unilateral arbitration clauses should not be enforced: “Because the arbitration provision in this case binds only one party, it is unenforceable.”
 
If, however, mutuality is gauged with respect to the contract as a whole rather than with respect to the arbitration clause viewed in isolation, the outcome will be different.  An example is United States ex rel. Harbor Construction Co. v. T.H.R. Enterprises, Inc., 311 F.Supp.3d 797 (E.D.Va. 2018), which construed the following subcontract clause: “At CONTRACTOR’s sole election, any and all disputes arising in any way or related in any way or manner to this Agreement may be decided by mediation, arbitration or other alternative dispute resolution proceedings as chosen by CONTRACTOR.”  The court ordered arbitration over the subcontractor’s objection: “[A]s long as the contract as a whole is supported by adequate consideration, an arbitration provision need not impose a mutual obligation to arbitrate in order to be valid.”  Id. at 803.
 
Neither case mentioned Rent-a-Center, West, Inc. v. Jackson, 561 U.S. 63, 70 (2010), which distinguished challenges to “the validity of an agreement to arbitrate” from challenges to “the contract as a whole” – and held that “only the first type of challenge is relevant to the court’s determination whether the arbitration agreement at issue is enforceable.”  This might suggest a focus for the mutuality inquiry solely on the arbitration provision.  But at least one court has concluded that Rent-a-Center “does not require that an arbitration clause be isolated and subjected to a mutuality test,” United States ex. rel. Maverick Construction Management Services, Inc. v. Consigli Construction Co., Inc., 873 F.Supp.2d 409, 415 (D.Me. 2012). 
 
While the New Hampshire Supreme Court has not announced which approach it favors, it has held in other contexts that mutuality of remedy is not a requirement of a valid contract.  Gulf Oil Corp. v. Rybicki, 102 N.H. 51, 54 (1959) (“If want of mutuality of obligation is the gist of their argument, it is no more acceptable. The lease is not invalid merely because the right to terminate it is conferred upon one party alone.”).  Because arbitration agreements do not specify the remedy for a breach of contract but only the forum in which the remedy will be determined, this precedent may not be conclusive.  But it does suggest that in New Hampshire mutuality of obligation is to be searched for in the contract as a whole, rather than in individual clauses.
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#104:  Proving Lost Productivity Claims

8/27/2021

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In construction, as in most businesses, efficiency is the key to profitability; the bigger the bang for a given buck, the greater the profit margin.  Bucks spent on labor will produce a big bang or a small one depending on working conditions.  At the bid stage contractors estimate the manhours needed to complete their contracts by anticipating what those conditions will be.  Many variables play into a labor productivity prediction: in what weather conditions will the work be performed? how much access is there to staging areas? what equipment must be used? is the sequence of construction logically dictated? how crowded will the job site be? and so on.  Adjusting for these factors is not simple.  [I’m reminded of Ambrose Bierce’s tongue-in-cheek syllogism: “Sixty men can do a piece of work sixty times as quickly as one man; one man can dig a post-hole in sixty seconds; therefore, sixty men can dig a post-hole in one second.”]

Few jobs ever go perfectly, and a contractor’s productivity can be adversely impacted when predicted conditions turn south.  If the adverse impact is due to another party’s breach of contract in imposing unanticipated conditions on a contractor, damages resulting from lost productivity may be recoverable.  How are such damages proved in court or in arbitration?

The preferred approach for isolating the impact of adverse conditions is called the “measured mile” method – a before-and-after analysis that establishes an unimpacted baseline against which to compare diminished actual performance.  A productivity rate (say, feet of pipe laid per day or volume of concrete poured per day) is measured on a project during an unimpacted period, and then compared to the productivity rate over a like period after the breach in an effort to isolate the effect of the breach.  If project conditions during the two periods are comparable except for the disruptive condition to be isolated, this type of analysis can be very convincing. 

Because it requires a comparison of impacted and unimpacted periods of work, “measured mile” methodology on a single project won’t be available if the entire work was impacted from Day One.  In such cases baseline productivity rates may be gauged by reference to the contractor’s historical performance on numerous jobs, or even by published studies showing industry-wide productivity averages.  Since conditions can vary job by job, such baselines are not as persuasive as the contractor’s actual performance on the project in question, but resorting to them may be the only option for creating a baseline if the entire project was impacted – or if the contractor failed to document productivity on the job prior to the onset of the adverse conditions for which damages are sought.  (Is it time for the paperwork lecture again?)

Other methodologies include the “total cost” and “modified total cost” methods.  The “total cost” method simply compares a contractor’s estimated costs and actual costs; strives to defend the reasonableness of the estimate (sometimes by comparison to other bids); and attributes all of the delta to the breach.  The “modified total cost” method takes this approach another step, and seeks to subtract out any identifiable cost overruns that are likely independent of the breach.  While the latter is preferable to the former, neither method matches the “measured mile” in persuasiveness.   One New Hampshire court has said that “[t]he total cost method is a ‘theory of last resort for use in those extraordinary circumstances where no other way to compute damages was feasible.” Axenics, Inc. v. Turner Construction Co., 2011 N.H. Super. LEXIS 6, at *39 (March 1, 2011).   (Yup, time for the paperwork lecture!)

Kudos go out to the American Society of Civil Engineers’ recently published Standard 71-21 – Identifying, Quantifying, and Proving Loss of Productivity, which presents a roadmap for how to collect productivity data and apply standard practices.  If you are looking for a primer on the key principles in identifying, presenting or defending against lost productivity claims, you could do worse than this 48-page guide.  It also contains an extensive bibliography of relevant literature, but my guess is that the book itself is destined to be cited by courts and boards as authoritative on the subject.
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#103:  Contracting Online

7/31/2021

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​The time-honored method for parties to signify their agreement to a contract – a signature on a piece of paper – has had to adapt to the digital age, and the law has adapted with it.  Electronic signatures were declared valid in New Hampshire in 2001 with the enactment of the Uniform Electronic Transactions Act, RSA 294-E.  In the fast paced world of e-commerce, however, parties often enter into contracts online with a single click of a mouse or tap on a smartphone screen.   This development has led courts to scrutinize the process in an effort to ensure that such actions truly manifest a party’s intent to be bound to contractual terms where the “fine print” is on a different webpage.
 
New Hampshire’s first foray into this quagmire seems to be Ford v. Netgear, Inc., Hillsborough-North No. 216-2019-CV-00704 (March 9, 2020).  The issue was whether an online purchaser of a WiFi system had agreed to arbitrate any disputes with the seller.  The Court concluded that he had, by clicking a box on the registration page directly below text which recited that doing so signified agreement to the seller’s terms and conditions (which happened to include an arbitration clause).  The terms and conditions were found on a separate page that the plaintiff insisted he never visited, although a prominent hyperlink to those terms would have taken him there had he bothered to click on it.  That was enough for the Court.  Could the seller’s website have declined registrations until the hyperlink was clicked?  Sure.  Was the seller required to set up its website that way in order to prove the purchaser’s assent?  No.
 
Some recent appellate decisions from other states have taken a less accommodating view.  In Kauders v. Uber Technologies, Inc., 486 Mass. 557, 159 N.E.3d 1033 (2021), the Court declined to enforce an arbitration clause in Uber’s online terms and conditions.  Its website alerted consumers that “By creating an Uber account, you agree to the Terms & Conditions and Privacy Policy,” which were viewable by clicking a hyperlink.  Finding the Uber registration “qualitatively different from a large business deal where sophisticated parties hire legal counsel to review the fine print,” id. at 575, the Court noted that “the interface did not require the user to scroll through the conditions or even select them. The user could fully register for the service and click ‘done’ without ever clicking the link to the terms and conditions.”  Id. at 576.  Moreover, “‘DONE’ is also different from, and less clear than, other affirmative language such as ‘I agree.’”  Id. at 580.
 
Similarly, Wollen v. Gulf Stream Restoration and Cleaning, LLC, 468 N.J. Super. 483, 259 A.3d 867 (2021), declined to enforce a contractor referral service’s arbitration provision in its terms and conditions reachable by a hyperlink from its search page.  According to the Court, the positioning of the hyperlink on the webpage “did not provide reasonable notice of HomeAdvisor’s terms and conditions to the reasonably prudent internet user.”  Id. at 878.  As was true of Kauders, “HomeAdvisor did not require plaintiff to open, scroll through, or acknowledge the terms and conditions by ‘clicking to accept’ or checking a box that she viewed them before clicking the View Matching Pros submit button.”  Id. at 879.
 
If you are “old school” and think that paperless contracting doesn’t apply to the construction industry, think again.  In recent years I have noticed more and more general contractors and supply houses whose subcontracts and credit applications are not only electronically signed, but incorporate by reference terms and general conditions that are accessible only on their websites.  Those websites should be designed so as to minimize claims of surprise and lack of assent.  While courts may well be more solicitous of online consumers’ potential confusion as compared to commercial users, it is safe to say that any online user is more likely to be bound to terms and conditions found on a different webpage than the one he clicks if those terms are accessible by a hyperlink which is (a) conspicuous, and (b) positioned on the webpage where viewers are likely to see it before they click to signify assent.
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#102:  The State of Residential Construction

6/30/2021

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Anyone buying or selling a home in New Hampshire recently can attest that the supply of available existing homes has never been tighter relative to demand, with the result that prices are at all-time highs.  A report by the New Hampshire Housing Finance Authority  indicates that MLS listings in May 2021 were down 23% from a year earlier, while the New Hampshire Association of Realtors reports that the median price of single family home in May 2021 hit a record high of $402,000 (25.7% higher than May 2020).

One would expect the shortage of inventory and high prices of existing homes to spark a boom in new residential construction.  There has certainly been a decent amount of such activity; the U.S. Census Bureau reports that in the first five months of 2021 a total of 1,933 new building permits were issued in New Hampshire, 80% of them for single family homes.  But skyrocketing lumber and material prices, coupled with a labor shortage in the construction field, have tempered the boom.

These drags won’t last, as market forces work out the blips.  An easing of tariffs on Canadian lumber would certainly help (over 80% of U.S. lumber imports come from Canada), but lumber prices are already on the way down.  The labor shortage created by COVID-19 should ease with the decline of the pandemic, nudged a bit by New Hampshire’s recent opt out of federal unemployment benefits, and by the use of Paycheck Protection Program (PPP) loan money, which is forgivable tax free to recipients who use at least 60% of it on payroll.  Wages may go up, but so will employment.

In the long term, I also see some positive incentives to residential construction as a result of tax and monetary policies:

On June 21 Governor Sununu signed into law HB-154, which enables municipalities to offer community revitalization tax incentives for the construction of low-income housing.  Until now the tax incentives were limited to construction/rehabilitation projects in downtown or town center areas. Effective in 2022, the new law allows the tax break for developers of affordable housing in designated “housing opportunity zones” anywhere in the municipality’s borders.  Tax assessment relief is now available to developers for ten years rather than the present five.

HB-2, the new biennial budget signed into law by Governor Sununu on June 25, gradually reduces the interest and dividends tax rate and eliminates the tax entirely by 2027.  The current rate under RSA 77:1 is 5%, levied on all interest and dividend income above $2,400 in any year.  For 2023 that rate will be 4%, declining to 3%, 2% and 1% in each of the next three years, and eliminated entirely for 2027 and beyond. This will make New Hampshire a truly “no income tax” state (did you think it already was?), and a more attractive place for the wealthy to live and retire – a shot in the arm for high end residential construction.

On the federal level, the $10,000 cap on deductions for state and local taxes (SALT) – which in New Hampshire is virtually entirely property taxes – is set to expire in 2025.  But it could happen sooner, as bipartisan support for repealing or at least increasing the cap is waxing.  That would inject a shot in the other arm for high end residential construction.

Perhaps the most important spur to residential construction is interest rates.  Inflation fears in recent months have led to predictions that the Fed would begin to raise interest rates this year.  The Fed Chairman’s testimony before Congress last week has now eased concerns that inflation alone might motivate a rate hike.  None of the prognosticators as of this writing are predicting much of a spike in rates.  As long as those rates stay low, housing affordability stays in the positive zone.

These are promising times for New Hampshire home builders.  But let the buyer beware.  Unscrupulous contractors who abscond with deposits are out there.  The Consumer Protection Bureau of the Attorney General’s Office reports on several who have been indicted on Class A felonies in recent months for doing exactly that. 
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#101:  Analyzing "Pay-when-Paid" and "Pay-if-Paid" Clauses

5/31/2021

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When a contractor and subcontractor agree that payments to the subcontractor will be conditioned on the contractor’s receipt of payment from the owner, enforcement of that condition requires unmistakable clarity of purpose to shift the risk of the owner’s nonpayment to the subcontractor.  Any ambiguity on the point will be resolved against the contractor.  Such was the ruling of the Cheshire County Superior Court in Denron Plumbing & HVAC, LLC v. MacMillin Company, LLC, No. 213-2019-CV-00221 (April 26, 2021), a case of first impression in New Hampshire.
 
MacMillin was the general contractor on an assisted living facility project in Keene for Prospect Woodward Home, and subcontracted the plumbing and mechanical portion of the project to Denron.  When the owner failed to pay MacMillin for reasons unrelated to Denron’s work, Denron sued MacMillin for its money after completing its subcontract work.  The parties’ subcontract contained this provision on progress payments: “Contractor shall pay Subcontractor 7 days after it receives from Owner a corresponding payment for Subcontractor’s Work . . .  A condition precedent to its payment obligations is Contractor’s actual receipt of the corresponding payment from Owner.”  As to final payment, the subcontract stated: “Contractor shall make final payment to Subcontractor within 7 days, or as otherwise required by the applicable law in the State of work after it receives final payment from Owner.”
 
The Court first distinguished two types of such provisions, labeled “pay-when-paid” and “pay-if-paid.”  A “pay-when-paid” clause is a timing mechanism, providing a set number of days after receipt of payment from the owner after which payment to the subcontractor falls due – but if the owner’s payment is delayed or never arrives, the obligation to pay the subcontractor is not extinguished; it is merely suspended for a reasonable length of time.  A “pay-if-paid” clause makes receipt of the owner payment a strict “condition precedent” to the subcontractor’s right to get paid – and if the owner never pays the contractor, the contractor has no obligation to pay the subcontractor.
 
The Denron court noted that other states deal with pay-if-paid clauses “in a variety of ways. Some void them; others require explicit language for their use; and still others enforce them strictly like any other contract provision.”  In deciding to adopt the middle approach, the Denron court relied heavily on New Hampshire precedent holding that “Conditions precedent are not favored in the law, and we will not construe contracts to include them unless required by the plain language of the agreement in question.”  It also noted that “subcontractors are often at the mercy of the general contractor during negotiations. With that in mind, the burden should be on the general contractor to display a clear intent.”
 
The court then examined the two subcontract clauses referenced above to determine whether they “clearly and unambiguously expressed an intent for Prospect-Woodward’s payment to MacMillin to serve as a condition precedent to Denron’s pay from MacMillin.”  It held that the first, governing progress payments, was a pay-if-paid provision while the second, governing final payment, was a pay-when-paid provision – thereby creating an ambiguity as to which one should trump the other.  It also noted that the prime contract, which conditioned the owner’s payment to MacMillin on submission of “an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied,” created a further ambiguity.  Juxtaposed with the subcontract’s pay-if-paid clause, a circularity issue arises: no payment is due from the owner to MacMillin until subcontractors are paid, and no payment is due from MacMillin to its subcontractors until the owner pays.
 
Based on these ambiguities, the Denron court deemed the parties' subcontract to be a pay-when-paid subcontract, and struck MacMillin’s pay-if-paid defense – leaving to another day whether a reasonable time had elapsed so as to make MacMillin’s payment to Denron presently due.  But the message is clear.  The risk of owner nonpayment falls on the general contractor unless the subcontract clearly and unambiguously requires the subcontractor to share it.
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#100:  Dealing With Rising Costs

4/29/2021

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It’s no secret to anyone involved in the construction industry that materials prices have been increasing by leaps and bounds recently.  Steel, copper, PVC, drywall, and particularly lumber prices are dramatically higher compared to a year ago.  And the trend continues to be up.

In the traditional “fixed price” or “lump sum” mode of contracting, a construction project must be delivered by the contractor for the agreed price, subject to whatever contract provisions may justify a price increase – and if increased materials costs are not one of them, the contractor bears all of the risk of those increases.  In the “cost-plus-a-fee” or “time and materials” mode of contracting, materials price increases are generally passed on to the owner – but even here, guaranteed maximum price (GMP) provisions often cap the contractor’s ability to pass on price increases to the owner.

As a hedge against price increases on projects expected to last many months, some contractors buy the bulk of their materials as early in the project as possible, a strategy that works if storage is available at relatively low cost, and the purchases are immediately reimbursable (the AIA’s popular A201-2017 General Conditions, for example, allow for payment for materials store off-site “[i]f approved in advance by the Owner”).  Another approach is to negotiate with subcontractors or suppliers to lock in prices for an extended period of time, thereby kicking the price increase risk downstream – but in the present volatile market, subs and suppliers are increasingly reluctant to hold their prices for long, typically not more than 60 or 90 days.  Any delay in the start of construction puts the contractor in a tough position here.

One way to share the risk is through a price escalation clause in the parties’ contract, allowing some or all of a cost increase to be shifted from contractor to owner (or from subcontractor to contractor).  Generally these clauses will have one of two triggers, either a delay or other event beyond the contractor’s control occurring during the project that pushes off the anticipated date of materials purchases, or a stated percentage increase in actual costs compared to some agreed benchmark.  Often the benchmark is indexed costs, for example the producer price index or “PPI” published by the Bureau of Labor Statistics.  Sometimes the benchmark is budgeted costs, i.e., the contractor’s actual buyout costs at bid time (or those of their subs if the subcontract prices are similarly allowed to fluctuate).  That choice is more common in cost-plus contracts as a mechanism to increase the GMP than it is in fixed-price contracts, where the contractor is often reluctant to share its budgeted costs with the owner, thereby revealing its margins.

Owners go along with price escalation clauses for the same reason they go along with differing site conditions clauses; they want to disincentivize contractors from padding their bids to cover themselves for unknown contingencies.  Uncle Sam was among the first to catch on, and for decades has authorized price adjustment clauses for fixed price contracts in the Federal Acquisition Regulations, 48 CFR § 16.203-1, as long as they are “based on increases or decreases in labor or material cost standards or indexes that are specifically identified in the contract.”

Whatever the chosen trigger, price escalation clauses are products of negotiation that can cabin the contractor’s ability to pass on price increases in various ways.  I have seen clauses with floors (e.g., price increases below 5% will be absorbed by the contractor) and/or ceilings (e.g., price increases up to a limit of 15% can be passed on to the owner).  I have seen clauses that adjust the contract price in both directions, affording the owner a price reduction if input costs decrease (probably a waste of ink in the present economic climate).  And almost always the change order process must be invoked, with its timing limitations and waiver possibilities.

While price escalation causes are more common in commercial than in residential construction contracts, the National Association of Home Builders has put out a sample addendum for residential contracts.  Worth a look.
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#99:  General Contractors' OSHA Liability for Subcontractors' Violations

3/28/2021

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For many years the Occupational Safety and Health Administration (OSHA) has implemented a Multi-Employer Citation Policy, under which more than one employer at a worksite – for example, a general contractor and a subcontractor – can be cited by OSHA for the same hazardous condition.  If an employer “has general supervisory authority over the worksite, including the power to correct safety and health violations,” it will be deemed a “controlling employer” who, depending on the circumstances, can be cited along with the employer that actually created the hazardous condition.   The requisite “[c]ontrol can be established by contract or, in the absence of explicit contractual provisions, by the exercise of control in practice.”
 
Almost every general contractor will meet this test.  In StormForce of Jacksonville, LLC, No. 19-0593, 2021 WL 2582530 (OSHRC March 8, 2021), a general contractor on a residential roofing contract entered into a subcontract that allocated safety responsibility to the installing sub and specified that the GC “cannot reasonably be expected to prevent, detect or abate violative conditions by reason of its limited role on the project.”   But in light of the GC’s dictation of the sub’s work hours, signage, communications with the owner and the like, and particularly because its site foreman’s duties included monitoring safety issues and contacting the sub’s management if any safety concerns are observed, the Occupational Safety and Health Review Commission – the administrative arm of the Department of Labor charged with hearing appeals of OSHA citations – concluded that “controlling employer” status was present.
 
The low bar for finding “controlling employer” status presents something of a dilemma for general contractors.  While “a controlling employer’s duty to exercise reasonable care ‘is less than what is required of an employer with respect to protecting its own employees,’” Suncor Energy (U.S.A.) Inc., No. 13-0900, 2019 WL 654129, at *4 (OSHRC Feb. 1, 2019), it must at least take “reasonable measures to ‘prevent or detect and abate the violations due to its supervisory authority and control over the worksite.’”  Id.  The very act of implementing such measures makes its “controlling employer” status virtually assured.  And if a GC eschews them completely in an ostrich-like effort to avoid becoming a “controlling employer,” but is nevertheless found to be one, its do-nothing approach will virtually guarantee its liability for subcontractor safety violations.
 
If a “controlling employer” knows of a safety violation and does nothing about it, liability will follow.  In StormForce, the OSHRC absolved the general contractor in part because there was no evidence that its foreman had witnessed the same lack of fall protection measures that led the OSHA inspector to cite the sub.  The more interesting aspect of the decision, however, concerned whether the GC should have known, i.e., the reasonableness of its measures to detect safety issues.  The OSHRC concluded that constant observation by the GC was not required, and that the occasional review of its sub’s performance would not necessarily have revealed the sub’s violations.
 
StormForce reinforces that it is the Secretary of Labor’s burden to prove controlling employers’ knowledge of violations and/or lack or reasonable safety review measures to catch them.  And the same is true of the “controlling employer” inquiry itself.   Earlier OSHRC precedent adopting a rebuttable presumption that a general contractor on a construction project is a “controlling employer” had passed muster in the courts, see R.P. Carbone Constr. Co. v. OSHRC, 166 F.3d 815, 818 (6th Cir.1998) (citing the OSHRC’s 1979 Haugan case for proposition that “[t]here is a presumption that a general contractor has sufficient control over its subcontractors to require them to comply with safety standards”) – but StormForce announced that this presumption would no longer be used: “We thus overrule Haugan to the extent that its formulation of a ‘rebuttable presumption’ is inconsistent with established precedent.”
 
Whether StormForce signals a pro-contractor shift at the OSHRC is debatable.  For now, general contractors and construction managers would be well served not to hand off all safety-related duties to subcontractors in the hope of avoiding “controlling employer” status.  The safer course from a liability perspective is also the safer course from an accident perspective: no matter what your subcontracts say, make some effort to monitor hazardous job conditions created by others.
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#98:  Good Faith Limits on Termination for Convenience

2/27/2021

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In an earlier blog (#62) I discussed the implied covenant of good faith and fair dealing that limits a contracting party’s exercise of the discretion afforded to it by the parties’ contract.  A recent New Hampshire Superior Court case applied the covenant to restrict a contractor’s right to terminate a subcontractor “for convenience” – the ultimate exercise of discretion – simply in order to try to obtain a better price.

Operating very much like “at will” employment contracts which permit the employer to fire an employee at any time as long as some specific public policy is not offended, "termination for convenience” provisions purport to allow one party to end a contract at whim, regardless of whether the terminated party has given any cause for the termination.  Such a provision was part of a commercial painting subcontract in Hate to Paint, LLC v. Ambrose Development, LLC, No. 218-2020-CV-0585 (Rockingham County, February 26, 2021).  The painting sub signed a contract to paint a multi-apartment housing project being constructed in Somersworth for a price of $500,000.  This clause was in the parties’ agreement:

TERMINATION FOR CONVENIENCE: The General Contractor may terminate the Contract for convenience upon three (3) days prior written notice. In the event of such termination, the Contractor shall be entitled to receive payment for labor and materials furnished through the date of termination. Contractor shall not be entitled to receive payment for any lost profits.
 
After the subcontract was signed but before the work started, the general contractor realized that a nearly identical project had been painted by the same sub at a lower per-unit price, and decided to invoke the termination clause, simultaneously inviting the sub to submit a new, lower bid.  Desperate for the work it had lined up and could not replace, the sub did bid against itself, but ultimately a lower-priced painter was hired anyway.  The jilted sub sued for breach of contract and breach of the Consumer Protection Act.

The Court began by citing prior Supreme Court precedent holding that the implied covenant of good faith and fair dealing could override an express allocation of discretion “when necessary to protect an agreement which otherwise would be rendered illusory and unenforceable.”  Because the defendant would not be obliged to perform at all if it terminated the deal prior to the onset of work, this destroyed the mutuality of obligation at the heart of any contract, rendering the contract illusory – and making the implied covenant of good faith applicable to the exercise of discretion found in the termination clause.
 
Next, the Court had to determine “whether terminating the contract to obtain a better price was a permissible use of Defendants’ discretion.”  Distinguishing the case before it from other cases where the terminating party had simply made a bidding error, the Court concluded that “Defendants breached the contract by invoking the termination for convenience clause in order to obtain a better bargain.”  Summary judgment was entered for the painting subcontractor on liability, leaving for another day the issue of damages.
 
Many termination for convenience clauses require the payment of reasonable overhead and profit on unperformed work to a party terminated for convenience.  (The AIA’s popular A201 General Conditions form had such a provision in its 2007 version; it was eliminated in the 2017 version in favor of a pre-negotiated termination fee.)  This acts as a powerful disincentive for upstream parties to continue to shop a contractor’s price around after the contract has been signed.  In Hate to Paint, lost profits after termination for convenience were specifically excluded.
 
One question unanswered by Hate to Paint is whether a contract may be terminated for convenience to obtain a better price after performance has begun and the terminating party has incurred some obligation to pay for work performed.  My guess is that post-commencement termination for convenience clauses will be enforced despite the covenant of good faith and fair dealing.  When only one of the contracting parties is bound to the contract, it is illusory.  After performance starts, arguably that is no longer the case.
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#97:  DOL's New Independent Contractor Regulation

1/23/2021

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In an effort to avoid the costs and risks associated with the employment relation, contractors and construction managers often prefer to hire workers as “independent contractors” rather than employees.  And occasionally, they misclassify workers as independent contractors when legally they are not – often with nasty consequences.  (Imagine a contractor who has long treated its workers as independent being ordered to pay them for hundreds of hours of overtime!)
 
It’s pretty easy to screw this up.  The tests for distinguishing one from the other are not uniform among the various state and federal statutes governing employment – the Fair Labor Standards Act (FLSA), which prescribes minimum wage and overtime rules for employees, uses one set of factors; IRS uses another; state workers compensation and unemployment insurance statutes use still different tests (including from each other!); and the common law, focused on traditional agency concepts, yet another.  Some of these tests are quite restrictive, making it difficult to classify a worker as an independent contractor.
 
On January 6, 2021, the U.S. Department of Labor announced a new rule for classifying workers as independent contractors rather than employees for purposes of the FSLA, thus replacing a patchwork of court and administrative opinions on the issue with a comprehensive – and minimally restrictive – test for independent contractor status.  Its overarching premise is that “an individual is an employee if he or she is dependent on an employer for work and is an independent contractor if he or she is, as a matter of economic reality, in business for him- or herself.”  The “economic reality” test announced by the new regulation (1) identifies and explains two core dependency factors: the nature and degree of the worker’s control over the work, and the worker’s opportunity for profit or loss based on initiative and/or investment; and (2)  identifies three other guideposts in the analysis: the amount of skill required for the work; the degree of permanence of the working relationship between the worker and the potential employer; and whether the work is part of an integrated unit of production.

The first core factor, the nature and degree of control over the work, weighs in favor of independent contractor status “to the extent the individual, as opposed to the potential employer, exercises substantial control over key aspects of the performance of the work, such as by setting his or her own schedule, by selecting his or her projects, and/or through the ability to work for others, which might include the potential employer's competitors.”

The second core factor, opportunity for profit or loss, weighs in favor of independent contractor status “to the extent the individual has an opportunity to earn profits or incur losses based on his or her exercise of initiative (such as managerial skill or business acumen or judgment) or management of his or her investment in or capital expenditure on, for example, helpers or equipment or material to further his or her work.”

This final rule expressly rejects the restrictive “ABC” test adopted by several states – including in New Hampshire for unemployment insurance purposes, as I have previously blogged (#3) – under which a worker must be (A) free from employer control, (B) perform work outside the employer’s business, and (C) be in business for himself/herself in order to be deemed an independent contractor.  Because only the Department of Labor’s interpretation of the FLSA is governed by the new rule, state laws are unaffected by it.  There is still no universal standard.

The new rule has an effective date of March 8, 2021, which gives the Biden administration some time to decide whether to keep it or scrap it.  Business interests like it.  Unions hate it.  Biden’s nominee for Labor Secretary, Boston mayor Marty Walsh, is a former union official and former leader of Boston’s Building and Construction Trades Council, so it is easy to predict where his sympathies lie.  Biden's campaign platform pledged to end misclassificaiton of employees (see Blog #94).  The rule is also vulnerable under the Congressional Review Act which allows simple majorities in both the House and Senate to repeal a new regulation within 60 days of its submission or publication.  We will know soon enough.
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#96:  Payment Bond Sureties and "Pay-if-Paid" Subcontracts

12/19/2020

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It is often said that a payment bond surety may assert all of the contractual defenses to payment enjoyed by its principal.  If the principal is a general contractor with a “pay-if-paid” clause in its subcontracts, must a subcontractor wait for the general contractor to be paid before it can collect on a payment bond?  I promised elaboration on this question in an earlier blog (#8).

For public works contracts where payment bonds are required by statute (RSA 447:16 et seq. for state and municipal projects, the Miller Act for federal projects), the answer appears to be “No.”  These statutes set the passage of time that the subcontractor is unpaid as the only precondition to payment under the bond, and courts reason that any other precondition would be inconsistent with the statutory scheme.  United States ex rel. Walton Technology v. Westar Engineering, 290 F.3d 1199, 1206 (9th Cir. 2002) (“Thus, the liability of a surety and its principal on a Miller Act payment bond is coextensive with the contractual liability of the principal only to the extent that it consistent with the rights and obligations created under the Miller Act.”).  No New Hampshire case has yet considered whether the same result obtains under state law, but the same logic applies.

What about payment bonds on private construction projects?  Outside of New Hampshire there is a split of authority on the question.  OBS Co. v. Pace Construction Corp., 558 So. 2d 404 (1990), construing Florida law, held that general contractor’s “pay-if-paid” defense was not available to a surety.  Wellington Power Corp. v. CNA Surety Corp., 217 W.Va. 33, 614 S.E.2d 680 (2005), construing West Virginia law, held that it was.  Several precedents can be found on both sides of the argument.

While New Hampshire’s Supreme Court has yet to take either side, it has held that when “a bond refers to and is conditioned on the performance of a specific agreement the latter’s terms become a part of the bond and the instruments should be read together as a whole. [citations omitted]  By its terms the bond insured the faithful performance of the contract . . . Thus the liability of the company as surety is coextensive with that of the principal . . .”  Paisner v. Renaud, 102 N.H. 27, 29 (1959).  This means one must examine the language of the bond in order to ascertain which “specific agreement” is incorporated into the bond, and thus which contract’s provisions are the measure of the surety’s exposure.

Many payment bonds in vogue today (the popular AIA A312 is an example) contain both indemnity obligations to the project owner and direct payment obligations to subcontractors and suppliers, but incorporate by reference only the prime contract between owner and general contractor.  That prime contract, of course, won’t contain “pay-if-paid” language, which is only found in subcontracts – and nothing in the bond’s description of payment obligations to subcontractors purports to incorporate their agreements.  Some courts have ruled against the surety on this basis.  See Paige International, Inc. v. XL Speciality Ins. Co., 267 F.Supp.3d 205, 215-16 (D.D.C. 2017), holding that the surety enjoys only the contractual defenses in its principal’s contract with the indemnitee, not those found in lower-tier subcontracts.

Incorporation of the terms of the prime contract may, depending on those terms, end up playing a decisive role.  Such was the situation in Maine Bonding & Casualty Company v. Foundation Constructors, Inc., 105 N.H. 470, 473 (1964), affirming a surety’s liability to pay subcontractor claims where the bond incorporated by reference a prime contract providing that “unless otherwise stipulated, the contractor shall provide and pay for all materials, labor, water, tools, equipment, light, heat and power necessary for the execution of the work.”  If the prime contract contains an unqualified directive that the contractor pay its subs and suppliers, that directive is likely to impose liability on the surety in an action under the bond, even if the claimant would strike out in an action under a "pay-if-paid" subcontract.
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#95:  Are Miller Act Claims Arbitrable?

11/30/2020

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The Miller Act, the federal statute providing for payment bonds on federal construction projects to protect unpaid subcontractors and suppliers, provides that suits on the payment bond “must be brought . . . in the United States District Court for any district in which the contract was to be performed and executed.”  40 U.S.C. § 3133(b)(3)(B).  The word “must” in the statute has been characterized by F.D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 125 (1974) as “merely a venue requirement” – a right to insist on where the lawsuit must be brought.  Because venue provisions can be waived, courts allow Miller Act claims to be litigated in a different court selected by the parties’ contract.  United States on behalf of Pittsburgh Tank & Tower, Inc. v. G. & C. Enterprises, Inc., 62 F.3d 35, 36 (1st Cir. 1995).

At the same time, courts have refused to enforce forum selection clauses that pick a state court rather than a federal court for resolving Miller Act claims, given the statute’s admonishment that the suit “must be brought . . . in the United States District Court . . .”  U.S. ex rel. B & D Mechanical Contractors, Inc. v. St. Paul Mercury Ins. Co., 70 F.3d 1115, 1117 (10th Cir. 1995) (“The parties’ selection of a state court forum is fatal to the clause’s enforceability. . . The Miller Act grants federal courts exclusive jurisdiction.”).

What if the parties’ contract calls for arbitration?  The Federal Arbitration Act instructs federal courts to enforce arbitration agreements according to their terms.  If a general contractor and subcontractor on a federal construction project have agreed to arbitrate any disputes, must the subcontractor’s payment bond claim under the Miller Act be arbitrated?

Twenty-one years ago, the answer was a rather clear Yes.   But in 1999, Congress amended the Miller Act to provide that  “A waiver of the right to bring a civil action on a payment bond required under this subchapter is void unless the waiver is (1) in writing; (2) signed by the person whose right is waived; and (3) executed after the person whose right is waived has furnished labor or material for use in the performance of the contract.” 40 U.S.C. § 3133(c).  An arbitration agreement is the quintessential “waiver of the right to bring a civil action,” and when contained in a signed subcontract it will necessarily be executed before labor or materials are furnished.

The legislative history of the amendment, H.R. Rep. No. 106-277 at *5 (1999), tells us: “This bill does not void subcontract provisions requiring arbitration or other alternative methods of resolving disputes. Such provisions would remain enforceable with a claimant’s Miller Act rights preserved by a timely suit that can be stayed pending the outcome of the subcontract dispute resolution procedure. The bill respects the freedom of the parties to the subcontract to specify means to resolve their disputes and the exclusive jurisdiction of the district court to decide issues arising under the Miller Act.”  This language can certainly be read as evidence of congressional intent that Miller Act claims not be arbitrable.

Keeping the Miller Act claim in court, but staying it pending arbitration of the breach of contract claim between the subcontractor and the general contractor, works well if the surety is bound by the outcome of the arbitration.  United States f/b/o Maverick Construction Management Services, Inc. v. Consigli Construction Co., Inc., 873 F.Supp.2d 409 (D.Me. 2012), a Miller Act and breach of contract case by a subcontractor on a project at the Portsmouth Naval Shipyard, is an example.  The surety, Federal Insurance Company, acknowledged “that its liability is coextensive with Consigli’s.  Maverick will not need to relitigate its claims against FIC following arbitration with Consigli.  It would be duplicative and risk inconsistent adjudications to allow Maverick to pursue its Miller Act claim against FIC in this Court simultaneously with its claims against Consigli in arbitration.”  Id. at 417-418.

If the surety has not agreed to be bound by the arbitration award, or if no claim is made against the general contractor at all, things get dicier.  I’ll address this scenario in a future blog.


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#94:  Trump, Biden and the Construction Industry

10/26/2020

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With Election Day just around the corner, here’s a quick review of how the candidates stack up on construction-related matters:

Infrastructure spending:  Trump has long promised significant infrastructure spending, but thus far his Administration has not produced a comprehensive infrastructure spending law, and no such program is formalized in any Plan he has released via campaign documents.  Although he has tweeted about a “big and bold” $2.0 trillion spending plan, his FY 2021 budget allocates only $75 billion for increasing surface transportation spending through a highway bill reauthorization, $190 billion for other infrastructure investments such as bridges and freight, and $9 billion for a capital fund for infrastructure investments.  The Biden Plan proposes a $2 trillion package for roads and bridges, public transit, the power sector, the automobile industry (including charging stations for electric vehicles),  and upgrading 4 million buildings and weatherizing 2 million homes over 4 years – all with a focus on energy efficiency and sustainability, with net-zero greenhouse gas emissions as the long term goal.

Minimum Wage:  During the October 22 Presidential debate, Biden supported raising the federal minimum wage to $15/hour.  Trump responded “I think it should be a state option. Alabama is different than New York.  New York is different from Vermont.  Every state is different.”  When pressed on the subject by the moderator, Trump said he would consider raising the federal minimum wage if given a second term, but gave no specifics.

Independent Contractor vs. Employee:  The U.S. Department of Labor is proposing a new rule that would make it easier to classify workers as independent contractors rather than employees for purposes of the Fair Labor Standards Act, which prescribes minimum wage and overtime rules for employees.  The rule would test whether a worker is in business for himself or herself (independent contractor) or is economically dependent on a putative employer for work (employee), by focusing on the nature and degree of the worker’s control over the work and the worker’s opportunity for profit or loss based on initiative and/or investment.  Biden pledges to stop the misclassification of workers as independent contractors, and favors implementing California’s “ABC” test  on a national level. 

Paid Leave: as part of his Build Back Better program,  Biden supports 12 weeks of paid leave if a worker or a family member has a serious health condition.  Trump has signed legislation giving federal workers paid leave as well as emergency legislation for paid leave for COVID-related absences (the latter will expire at the end of 2020), but he has advanced no current proposal for paid leave generally.

Funding Social Security: Biden proposes that the 12.4 percent payroll tax which funds Social Security – half of which is paid by employers and half paid by employees – be levied on the first $400,000 of income (currently the taxable maximum is $137,700, increasing annually at the rate of wage growth).  In an August 12 news conference Trump announced his intention to replace the Social Security payroll tax with revenues drawn from the general tax fund, almost all of which is furnished by income taxes.

Foreign Trade:  Trump’s tariffs on Chinese and other foreign imports have made not only consumer goods more expensive, but inputs as well, particularly steel and aluminum.  He has said that he will maintain tariffs in a second term.  Biden has hinted that his administration would eliminate them – but as they benefit organized labor, a key base for him, Biden will find it hard to scrap tariffs on steel and aluminum. Trump’s and Biden’s positions on Buy American are also similar.

Right to Work:  So-called “Right to Work” laws forbidding labor unions from charging dues or “agency fees” to non-members are in place in 27 states (not including New Hampshire). In February Trump promised to veto the “PRO Act” which would have preempted these laws – a promise that was instrumental in Trump’s endorsement by Associated Builders and Contractors. Meanwhile, Biden pledges  to “repeal the Taft-Hartley provisions that allow states to impose right to work laws.”

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#93:  Spoliation During Construction

9/5/2020

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Parties to a lawsuit, or who reasonably should anticipate future litigation, have a duty not to destroy evidence crucial to their opponents’ claims or defenses.  Intentionally destroying material evidence to the prejudice of an opponent – called “spoliation” – can result in imposition of sanctions by the court, ranging from adverse inferences to preclusion of expert testimony to outright dismissal of a case.  The duty to preserve material evidence extends not just to documents and records, but also to physical items (for instance, in a products liability case the defective product itself).
 
But what about a building under construction?  Must an owner whose contractor abandons or is terminated from a project await a lawsuit before implementing the repairs that will destroy the evidence of defective work?  Compared to suspending routine document destruction programs or storing an offending product, putting construction on hold to avoid altering or destroying deficient work (or dismantling temporary accessories like scaffolding, shoring or cribbing) may place an unreasonable financial burden on the owner.  Courts understand this, and make allowances for it.  Miller v. Lankow, 801 N.W.2d 120, 128 (Minn. 2011) (“A rule that too broadly forbids a custodial party from making repairs or remediating damage when such repair or remediation is necessary may be both unfair and impractical . . . [W]e conclude that the duty to preserve evidence must be tempered by allowing custodial parties to dispose of or remediate evidence when the situation reasonably requires it.”).
 
Fortunately, the duty to preserve relevant evidence may be satisfied by affording the adverse party an adequate opportunity to inspect it prior to destruction.  American Family Mutual Insurance Co. v. Golke, 768 N.W.2d 729, 737 (Wis. 2009) (“a party or potential litigant may discharge its duty by giving the other side notice of a potential claim and a full and fair opportunity to inspect relevant evidence”).  Indeed, upon being notified of a claimed defect that could lead to litigation, the party alleged to be responsible may have some duty to affirmatively seek an inspection.  Miller v. Lankow, 801 N.W.2d at 130-31 (“[W]hen a party has sufficient knowledge to protect its interests and nevertheless does nothing, it is inappropriate to sanction the custodial party.”);  Aktas v. JMC Development Co., Inc., 877 F.Supp.2d 1, 13 (N.D.N.Y. 2012) (“When a party fails to request an inspection of the evidence after being notified of its existence, spoliation sanctions are not appropriate.”).  In the residential setting, New Hampshire’s opportunity to repair statute, RSA 359-G:4, comes into play here.  If a homeowner gives the contemplated statutory notice of a claimed defect to the contractor, who then declines to exercise his statutory right to request inspection, a later spoliation defense premised on lack of opportunity to inspect will be a tough sell.
 
While some states impose sanctions even for negligent spoliation, in New Hampshire “the general rule [is] that an adverse inference — that the missing evidence would have been unfavorable — can be drawn only when the evidence was destroyed deliberately with a fraudulent intent.”  Murray v. Developmental Services of Sullivan County, 149 N.H. 264, 271 (2003).   Inferring a subjective purpose of the spoliator to deprive an opponent of evidence can be challenging in construction settings.  In a Massachusetts Superior Court case, 333 Massachusetts Avenue Limited Partnership v. The Architectural Team, Inc., No. 06-4630-BLS2 (December 7, 2010), the defendants sought sanctions for plaintiffs’ spoliation of allegedly leaking facades of a building, claiming that “both before and during the course of this litigation, remediated, repaired and altered the very components of the building facade and the Defendants’ work allegedly involved in the claimed leaks, without notifying the Defendants or preserving evidence as they are duty-bound to do.”  The Court denied the request, concluding that “plaintiffs’ intent was not spoliation of evidence, but rather addressing failing facade components as circumstances required.”
 
Even if an invited inspection is declined by the contractor, the wise owner will thoroughly photograph or video any potentially defective workmanship before it is altered – and if a lawsuit results, share that evidence with her opponent.  Chances are it will be useful, perhaps even necessary, in order to prove the owner’s case in court anyway.
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#92:  Lost Profits and Waivers of Consequential Damages

8/13/2020

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In the law of contracts, damages suffered by the nonbreaching party may be either “direct” (loss of the benefit of the bargain, measured by the cost of remedying the deficient performance) or “consequential” (other reasonably foreseeable harm caused by the breach).  Normally both types of damages, if adequately proven, are recoverable in a lawsuit by the nonbreaching party.  But many commercial construction contracts provide for mutual waivers of consequential damages in the event of a breach.  Typical is the AIA’s A201 General Conditions (2017) § 15.1.7:
 
The Contractor and Owner waive Claims against each other for consequential damages arising out of or relating to this Contract. This mutual waiver includes:
.1 damages incurred by the Owner for rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and
.2 damages incurred by the Contractor for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit, except anticipated profit arising directly from the Work.
 
The concluding phrase “except anticipated profit arising directly from the Work” enshrines a distinction that courts have often made between lost profits as direct damages and lost profits as consequential damages.  In Mentis Sciences, Inc. v. Pittsburgh Networks, LLC, 173 N.H. 584 (2020), a lawsuit against an IT service provider, the parties’ contract excluded liability for “any indirect, special, incidental, punitive or consequential damages, including but not limited to loss of data, business interruption, or loss of profits, arising out of the work performed . . . by the Service Provider,” id. at 587.  The New Hampshire Supreme Court concluded that the quoted language barred the plaintiff's claim for lost profits, noting that while "[l]ost profit damages may be direct or consequential depending on the circumstances . . . the claimed lost profit damages are not direct because the profits lost were not inherent in the contract, that is, the plaintiff did not stand to earn these profits as a direct result of its contract with the defendant."  Id. at 590..

The litmus test for distinguishing lost profits as direct damages from lost profits as consequential damages is “whether the lost profits flowed directly from the contract itself or were, instead, the result of a separate agreement with a nonparty,” Biotronik A.G. v Conor Medsystems Ireland, Ltd.,  22 N.Y.3d 799, 808, 11 N.E.3d 676 (2014).  A commercial owner's lost profits will always be of the latter type.  A contractor's might or might not be; its lost profits on the contract breached will qualify as direct damages, but lost profits on concurrent or future projects will not. 

Should you agree to a mutual waiver of consequential damages in your contract?  As between owner and contractor, the mutual waiver generally favors the contractor; an owner is more likely to suffer consequential damages from the contractor’s breach than vice versa.  While a waiver of consequential damages will preclude recovery for a contractor’s lost opportunity to perform other profitable work, that scenario normally arises only when its work is delayed by the owner – and if a “no damage for delay” clause is also in the contract, that ship will have already sailed.

A recent case suggests that consequential damages waivers can be undermined by provisions for capping damages – a common feature of engineering and architectural services contracts.  In Teatotaller, LLC v. Facebook, Inc., 173 N.H. 442 (2020), a lawsuit for wrongful deletion of an Instagram account causing the plaintiff to “lose business and customers,” the defendant’s contract stated that “we won’t be responsible . . . for any lost profits, revenues, information, or data, or consequential, special, indirect, exemplary, punitive, or incidental damages arising out of or related to [the Terms of Use], even if we know they are possible.  This includes when we delete your content, information, or account.”  Id. at 447.  The Supreme Court focused on the contract’s next sentence: “Our aggregate liability arising out of or relating to these Terms will not exceed the greater of $100 or the amount you have paid us in the past twelve months.”  Id. at 447-48.  The Court deemed damages “arising out of or relating to” the contract to be consequential, and concluded that the cap trumped the waiver.
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#91:  Liability Insurance for a Subcontractor's Defective Work

7/26/2020

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“May unintentionally faulty subcontractor work that damages an insured’s work product constitute an ‘accident’ under a commercial general liability insurance policy?”  With that opening sentence, the Michigan Supreme Court last month became the latest high court to give a “yes” answer, in Skanska USA Building Inc. v. M.A.P. Mechanical Contractors, Inc., 505 Mich. 368, 952 N.W.2d 402 (2020).
 
Skanska, the construction manager of a hospital renovation project, hired a heating and cooling subcontractor whose liability insurance policy named Skanska and the owner as insureds.  When the subcontractor installed the expansion joints in the steam boiler and related piping backwards, the heating system got damaged.  Skanska made a claim against the policy which, in typical fashion, indemnified the insured for liability on account of property damage “only if: (1) The . . . ‘property damage’ is caused by an ‘occurrence’ . . .”  The insurer responded predictably, pointing to the definition of “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions,” and denying that the faulty installation of the expansion joints qualified as an “accident” because it wasn’t fortuitous.  The Michigan Supreme Court disagreed, interpreting “accident” as broader than “fortuity.”
 
The court found support for its conclusion by referring to the policy’s exclusion of coverage for an insured’s own work product, but with an exception for work performed by a subcontractor on the insured’s behalf:  “If faulty workmanship by a subcontractor could never constitute an ‘accident’ and therefore never be an ‘occurrence’ triggering coverage in the first place, the subcontractor exception would be nugatory.”  The court rejected the argument that an exception to an exclusion cannot create coverage where none exists, pointing out that it was obliged to read the contract as a whole and give effect to all of its provisions if possible.
 
This observation about the subcontractor exception to a coverage exclusion as indicative of initial coverage for faulty workmanship is nothing new.  U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871, 880 (Fla. 2007) (“the subcontractor’s exception to the general exclusion for a contractor’s defective work becomes important only if there is coverage under the initial insuring provision.”); Lamar Homes, Inc. v. Mid-Continent Casualty Co., 242 S.W.3d 1, 12 (Tex. 2007) (“By incorporating the subcontractor exception into the ‘your-work’ exclusion, the insurance industry specifically contemplated coverage for property damage caused by a subcontractor’s defective performance.”); National Surety Corp. v. Westlake Investments, LLC, 880 N.W.2d 724, 740 (Iowa 2016) (“It would be illogical for an insurance policy to contain an exclusion negating coverage its insuring agreement did not actually provide or an exception to an exclusion restoring it.”).  But what makes Skanska interesting is that the court took pains to distance itself from an earlier Michigan decision, Hawkeye-Security Ins. Co. v. Vector Construction Co., 185 Mich.App. 369 (1990), which had expressly relied on a New Hampshire case holding that “[t]he fortuity implied by reference to accident or exposure is not what is commonly meant by a failure of workmanship.”  McAllister v Peerless Ins. Co., 124 N.H. 676, 680 (1984).  The court of appeals in Hawkeye “agree[d] with both the reasoning and the conclusion as expressed by the McAllister court,” 185 Mich.App. at 378.  But the Michigan Supreme Court in Skanska decided that “because Hawkeye interpreted a 1973 policy that did not cover damage caused by a subcontractor’s faulty workmanship, Hawkeye is not persuasive.”
 
Will New Hampshire reach the same conclusion?  McAllister’s comment that “[t]he fortuity implied by reference to accident or exposure is not what is commonly meant by a failure of workmanship,” was repeated as recently as Concord General Mutual Ins. Co. v. Green & Company Building and Development Corp., 160 N.H. 690, 693 (2010).  But no subcontractor’s workmanship caused the damages in either McAllister or Concord General.  If our Supreme Court hears a case involving similar policy language, and abides by its longstanding rule that “[w]e will not presume language in a policy to be mere surplus,” International Surplus Lines Ins. Co. v. Manufacturers & Merchants Mutual Ins. Co., 140 N.H. 15, 19 (1995), it just might follow Michigan’s lead and hold that faulty workmanship can be a covered occurrence.
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#90:  Government Contractor Immunity

6/30/2020

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A few years back I blogged (#24) on the Spearin doctrine, which holds that adherence to government-imposed design specifications absolves the contractor from contract liability to the government when the finished product fails to perform as intended.  Spearin does not address tort liability to third parties injured by defective designs.  But its rationale – that the party at fault ought to bear the responsibility when things go awry – arguably applies there as well.
 
In the federal arena, Uncle Sam can be sued only with Congressional consent, and the Federal Tort Claims Act has not waived sovereign immunity for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”  28 U.S.C. § 2680(a).  Governmental adoption of design specs is almost always a discretionary function, so suing the Government for negligent design won’t work.  But what about suing the contractor who implemented the faulty design?
 
In Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), a contractor who simply performed as the Government directed was held immune from suit.   The plaintiffs in Yearsley sued to recover damages for land that was washed away as the result of work done by a contractor in building dikes in the Missouri River under a contract with the United States Government.  The Supreme Court held that “if what was done was within the constitutional power of Congress, there is no liability on the part of the contractor for executing its will.”  Id. at 20-21.  The Court recently clarified that while government contractors do not “share the Government's unqualified immunity from liability and litigation,” under Yearsley they may sometimes “obtain certain immunity in connection with work which they do pursuant to their contractual undertakings with the United States.”  Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 166 (2016) (quoting Brady v. Roosevelt S.S. Co., 317 U.S. 575, 583 (1943)).
 
Courts have dubbed this “derivative sovereign immunity.”  The “driving purpose of derivative sovereign immunity ‘is to prevent the contractor from being held liable when the government is actually at fault but is otherwise immune from liability.’”  In re U.S. Office of Personnel Mgmt. Data Security Breach Litigation, 928 F.3d 42, 70 (D.C. Cir. 2019) (quoting In re World Trade Center Disaster Site Litigation, 456 F.Supp.2d 520, 560 (S.D.N.Y. 2006).  Apparently it applies not just on federal projects, but to any project on which federally-imposed designs are followed.  Campbell-Ewald Co., 577 U.S. at 167 n.7 (“Critical in Yearsley was not the involvement of public works, but the contractor’s performance in compliance with all federal directions.”).
 
Overlapping the “derivative sovereign immunity” defense is the so-called “government contractor defense” to liability for procurement of negligently designed equipment, articulated in Boyle v. United Technologies Corp., 487 U.S. 500, 512 (1988), which immunizes a federal government contractor from liability for design defects when “(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.”  Boyle has been extended by several lower federal courts beyond equipment procurement to service contracts in general – and a subsequent Supreme Court case suggests that the logic of Boyle applies to service contacts too.  Correctional Services Corp. v. Malesko, 534 U.S. 61, 74 n.6 (2001) (citing Boyle and noting that “[w]here the government has directed a contractor to do the very thing that is the subject of the claim, we have recognized this as a special circumstance where the contractor may assert a defense”).
 
Whether Yearsley immunity and/or Boyle immunity will apply by analogy to designs implemented at the behest of state or municipal governments is presently an open question in New Hampshire.  A number of other states have adopted these defenses – and since RSA 541-B:19, I(c) furnishes the State of New Hampshire with the same discretionary function immunity enjoyed by the United States, don’t be surprised if our state falls in line.
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#89:  COVID-19 as a “Hazardous Substance” Justifying Delay or Suspension

5/24/2020

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For everyone’s protection, construction contracts often contain provisions for suspending work when a hazardous substance is encountered at a job site, with companion clauses governing extensions of time and extra compensation.  The AIA’s popular A201 General Conditions (2017), for example, contains these provisions:

§ 10.3.1  If the Contractor encounters a hazardous material or substance not addressed in the Contract Documents and if reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance, including but not limited to asbestos or polychlorinated biphenyl (PCB), encountered on the site by the Contractor, the Contractor shall, upon recognizing the condition, immediately stop Work in the affected area and notify the Owner and Architect of the condition.

§ 10.3.2  Upon receipt of the Contractor’s notice, the Owner shall obtain the services of a licensed laboratory to verify the presence or absence of the material or substance reported by the Contractor and, in the event such material or substance is found to be present, to cause it to be rendered harmless. . . . When the material or substance has been rendered harmless, Work in the affected area shall resume upon written agreement of the Owner and Contractor.  By Change Order, the Contract Time shall be extended appropriately and the Contract Sum shall be increased by the amount of the Contractor’s reasonable additional costs of shutdown, delay, and start-up.

§ 10.3.4 The Owner shall not be responsible under this Section 10.3 for hazardous materials or substances the Contractor brings to the site unless such materials or substances are required by the Contract Documents.

Is COVID-19 a “hazardous material or substance” within the meaning of this language?  You won’t find it on EPA’s comprehensive list of hazardous substances.  An infectious disease transmitted by human hosts is certainly not the type of “substance” one would normally think of as included, although scientists tell us that the virus can survive on hard surfaces such as metal or plastic for several days.  The contractual provision for testing is also a poor fit; as a practical matter nobody is going to test the site for the presence of COVID-19 when it is cheaper and easier simply to disinfect.

Even if COVID-19 counts as a hazardous substance, the next question is whether “reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons.”  OSHA’s issuance of COVID-19 Guidance for the Construction Workforce tends to suggest that reasonable precautions will be adequate.

Then there is the difficulty of figuring out who introduced the virus into the site.  Under § 10.3.4, the Owner is not responsible if the Contractor’s workforce brought it to the project – and in cases of new construction where the Contractor had sole possession of the site, proving otherwise will be almost impossible.  Indeed, even raising the subject is risky business; if it turns out that the Contractor introduced the virus to the site, it would be liable under § 10.3.5 to “reimburse the Owner for the cost and expense the Owner incurs (1) for remediation of hazardous materials or substances the Contractor brings to the site.”

All things considered, premising a unilateral suspension of a project on the presence of the virus as a hazardous substance is a poor strategy.  The better course is to try for an extension of time under § 8.3.1:  “If the Contractor is delayed at any time in the commencement or progress of the Work . . . (3) by labor disputes, fire, unusual delay in deliveries, unavoidable casualties, adverse weather conditions documented in accordance with Section 15.1.6.2, or other causes beyond the Contractor’s control; . . . or (5) by other causes that the Contractor asserts, and the Architect determines, justify delay, then the Contract Time shall be extended for such reasonable time as the Architect may determine.”  With many construction workers nervous about returning to work in close quarters – and particularly if a few have tested positive on their crews – manpower issues as excuses for delay will commend themselves to the sensibilities of all but the most jaded Architects.
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#88:   Battle of the Forms: When Is There an Enforceable Contract?

4/26/2020

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When contracts and subcontracts are negotiated, it is common for written drafts and redrafts to circulate between the parties, sometimes with a letter of intent to enter into a contract thrown into the mix, and sometimes with competing forms being used – a proposal or bid on one side, an expansive formal contract on the other.  Occasionally this back-and-forth will produce disagreement on whether a contract was actually entered into, i.e., whether an offer has been accepted.  The problem arises because acceptance doesn’t necessarily have to be in writing – and conversely, a signed writing doesn’t necessarily prove acceptance.
           
In Skyrise Construction Group, Inc. v. Annex Construction, LLC, 956 F.3d 950 (7th Cir. 2020), a federal appeals court affirmed summary judgment for a general contractor against a subcontractor in a case where each party had signed the other’s form.  The general contractor Annex requested bids to frame a multi-unit housing project in Wisconsin, and Skyrise submitted a bid to supply the rough framing carpentry labor.  Annex sent back a Letter of Intent expressing its intention to “enter into a contract with Skyrise” for the work, and informing Skyrise that Annex would “work on getting you contract documents in the near future.”  Skyrise immediately blocked off the project duration on its calendar and stopped pursuing other work for that period.

A few weeks later Annex sent Skyrise a six-page “Agreement Between Contractor and Subcontractor,” containing the general parameters of the agreement, along with a fourteen-page Exhibit A labeled “Subcontract General Conditions” detailing subjects such as timing, payment terms, insurance, modifications, and dispute resolution. Skyrise dragged its feet in responding, and ultimately requested that Annex sign Skyrise’s own proposal while Skyrise reviewed the contract documents.  Annex did so, writing on the face of the document “Contract exhibit A.”  Eventually Skyrise signed and returned the Proposed Contract, marked with some handwritten edits to the payment terms.  Annex never signed that revised version.
 
Ultimately Annex decided to go with a different sub.  Annex’s lawyer sent Skyrise a letter advising that Annex “will not be accepting and countersigning the Agreement as marked-up by Subcontractor and is therefore null and void.”  956 F.3d at 955. Skyrise sued, asserting that a contract was formed either when Annex signed Skyrise’s original framing proposal, or when Skyrise signed and returned Annex’s proposed contract.
 
The court rejected both assertions.  It first reviewed the applicable Wisconsin law of contract formation: that there must be a “meeting of the minds” on the same material terms expressed by objective manifestations rather than subjective beliefs.  (New Hampshire law is the same.)  As to signing Skyrise’s proposal, the court said that by adding the words “Contract exhibit A” to it, Annex indicated that it “intended for it to become part of the final agreement, not a contract in and of itself” – and that Skyrise indicated a similar understanding by saying it was still reviewing the proposed contract.  Thus, no contract was created “because neither party manifested an objective intent to do so at that time.”  Id. at 957.  As to Skyrise signing and returning a marked-up version of the proposed contract, the court said that by striking out its payment terms Skyrise was proposing “a material change to the contract” which Annex never accepted.  Id.  Hence, no contract was formed.

Skyrise demonstrates that getting a signature on a form in the hope of locking in a contract before all material terms have been agreed upon may be wasted ink.  If both parties are not on the same page on all of the essential terms of the deal, signing other pages won’t help.

Interestingly, the court also rejected Skyrise’s insistence that Annex had verbally agreed to the change in payment terms, by pointing to language in the proposed contract stating that it superseded “all prior negotiations, representations or agreements, whether written or verbal.”  Apparently Skyrise was tagged with having agreed to that provision by the act of signing without crossing it out.  The court may have botched that one; any assumption that the parties had reached an agreement on everything not crossed out would seem to be at odds with the ultimate conclusion that there was no enforceable contract at all.
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