The Federation of Defense and Corporate Counsel just released their Fall 2020 online edition of FDCC Insights. This is a scholarly journal comprised of relevant and cutting-edge articles directly impacting defense and corporate counsel and industry professionals. The Fall 2020 issue included two C | Y attorneys:
Not long ago, John Grayson represented a consortium of over 40 banks joined together to finance construction of a 32-story beachfront high-rise condominium project on the Texas Gulf Coast. After the building was topped-out and, according to the pay applications, was approximately 75% complete, the project was found to suffer severe structural problems stemming from abnormal differential settlement of the building’s core which had sunk 19 inches straight down. Major structural columns and beams had begun to crack, spall and crumble.
Typically in cases like this, threatening demand letters are exchanged and, eventually, a party files suit to collect on unpaid payment requests, foreclose on liens, alleges negligence, breach of contract or some other tort claim. While none of that is necessarily inappropriate, the typical course of action may not be the most efficient way to obtain relief for your client. We must be careful not to fall into the trap of thinking about, and handling, each case just like the one before. The point of this note is to encourage you to step back and creatively think of how to get your client where it needs to.
In just a few short months, much of the nation’s construction shifted from the critical path to a veritable mission impossible. The COVID-19 pandemic is impacting construction projects of all shapes and sizes in historically unprecedented and unanticipated ways. Public and private owners are postponing or canceling construction starts due to economic uncertainty and decreases in funding for public projects that rely on tax revenues.
Construction workforces already woefully deficient have been paralyzed by stay-at-home shutdown orders and quarantines of ill or exposed persons. Projects are slowed by new, unforeseen and cumbersome new safety protocols. Supply chains have been disrupted on a global scale. No construction project is immune from these widespread business interruptions. Contractors must now accept the mission – seeking to excuse contractual nonperformance either through force majeure provisions or common law defenses – a task that is not as impossible as it may seem.