While change orders are widely viewed as a mechanism to increase the contract price in a construction contract, sophisticated players understand that change orders can and should be used to manage claims....more
Although generally known as the “Texas Construction Anti-Indemnity Act,” the sweep of Subchapter C of Chapter 151 of the Texas Insurance Code (the “TCAIA”) is much broader than its name would seem to suggest.[1] ...more
The Texas legislature has passed House Bill 3485 that may limit owner-directed change orders for owner-directed work. The law takes effect September 1, 2023 for contracts entered into on or after September 1, 2023. The...more
9/1/2023
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With material cost volatility in the current market, the topic of price escalation clauses is more prevalent. Some material costs are up and other costs are now down. Traditional lump sum contract structures do not take into...more
Excluding consequential damages has become a regular part of negotiating engineering and construction contracts. A typical clause excludes recovery of indirect, exemplary, and consequential damages for both parties. Beyond...more
On February 17, 2022, the Court of Appeals in El Paso, Texas reversed a summary judgment in favor of a mineral lien subcontractor claimant because, at the time the lien was filed, nothing further was owed under the prime...more
Texas Senate Bill 219, which governs liability for construction defects due to flaws in design documents, goes into effect on September 1, 2021. With a few exceptions, the statute will effectively wipe out the Texas Supreme...more
The Texas legislature has sent to Governor Abbott a bill closing a huge loophole in the Texas statute requiring the award of attorneys’ fees to a successful plaintiff in most breach of contract actions. Texas courts...more
Change orders can quickly become a source of contention on construction projects and are often the subject of major disputes. As a result, it is important for stakeholders to carefully draft and negotiate the change order and...more
The Fifth Circuit applying Texas law recently weighed in on whether a subcontractor could recover more than the contract balance from the general contractor when (1) the work proved more onerous than anticipated at...more
In a case critical to Texas contract and partnership law, on January 31 the Texas Supreme Court confirmed that parties can negate the formation of a partnership through their contractual language. The Court affirmed an...more
Texas law has certain peculiarities which must be followed when a project is located in Texas. To avoid surprises and unanticipated liability on construction projects, the parties should modify contracts consistent with...more
Owners of construction projects are often surprised to learn that they are required to withhold 10% retainage on private construction projects in Texas. Failure to withhold 10% can result in liability up to that amount....more
In Nghiem v. Sajib1, the Texas Supreme Court resolved a dispute amongst the Texas Courts of Appeal regarding implied warranty claims…sort of. The court primarily held that a plaintiff is not required to bring a claim for...more
As described by my colleague Sean McChristian in Part 1 of this two-part blog series, planning for hurricane season in Texas is a critical part of mitigating risk in the construction industry. In addition to reviewing force...more
The Texas Supreme Court recently issued an opinion that could impact the next construction project where multiple parties complain about who breached (and who breached first) and whether the parties must continue performing...more
The Texas Supreme Court recently issued an important decision regarding the ability of general contractors to seek indemnity from manufacturers of defective products. In Centerpoint Builders GP, LLC v. Trussway, Ltd., the...more
A false notarized payment application signed by a Contractor and submitted to an Owner may make both the Contractor and the person who signed the false application personally liable for damages suffered by the Owner. ...more
The Texas Supreme Court recently issued an important decision regarding “no damages for delay” clauses in construction contracts. In Zachry Construction v. Port of Houston Authority, the Court found that the owner, the Port...more
Several cases have held that a homeowner cannot sue a subcontractor for defective work because the homeowner’s contract is with the general contractor and not the subcontractor. Those cases left it to the general contractor...more
On Friday, January 17, 2014, the Texas Supreme Court issued the long awaited and much anticipated Ewing Construction v. Amerisure Insurance opinion. You may have heard that the ruling was a big victory for contractors, but...more
Can a contractor sue the project’s designer for losses allegedly caused by errors in construction documents?
This question was presented in the Eby v. LAN/STV case, which is now before the Texas Supreme Court....more