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Philadelphia Construction Law Blog

Author: Kevin G. Amadio, Esquire

Pennsylvania Superior Court Decided

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Construction Industry News on Oct 6, 2017.

On September 27, 2017, the Pennsylvania Superior Court decided that the Bilt-Rite case, which held that an architect could be liable to a contractor for negligent misrepresentation, applies to other professionals as well.  The Court therefore reversed a trial court decision in favor of an accountant, stating that: “We find the court applied a too narrow reading to Bilt-Rite in determining that the case only concerns disputes involving an architect/contractor scenario. Rather, we conclude Bilt-Rite can be applied to other factual scenarios where a party is providing professional information that is designed to be relied upon by a third party.”  The case may be found at this link: http://www.pacourts.us/assets/opinions/Superior/out/24161563.       

Scheduling Experts Have A Variety Of Methods Available

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Construction Industry News on Sep 28, 2017.

Scheduling experts have a variety of methods available to them for analyzing delays, but all methods are not equally reliable or persuasive, a point well illustrated by the April, 2017 decision of the United States Court of Federal Claims in K-Con Building Systems, Inc. v. United States, 131 Fed.Cl. 275 (2017).  That decision provides a detailed analysis of the competing opinions of the parties’ scheduling experts, and the court found that the scheduling analysis method employed by the defendant was more persuasive.  The court stated: “The parties present diametrically opposed descriptions of the critical path of performance—plaintiff submits that the critical path of performance should be based on an as-planned, forward-looking schedule, and defendant contends that the critical path of performance should be based on an as-built, backward-looking schedule. The court agrees with defendant that the proper way to determine what activities were on the critical path of performance in this case is to examine what actually occurred during contract performance. There are two reasons for this conclusion. First, a critical path schedule that relies solely on the schedule set forth in the contract specifications does not account for any subsequent changes to the schedule authorized by the contracting agency…. Second, the use of a contractually based critical path schedule does not reflect that plaintiff did not actually perform in accordance with the schedule set forth in the contract specifications.”

Bad Faith

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Bonding and Surety on Sep 28, 2017.

On September 28, 2017, the Supreme Court of Pennsylvania, in Rancosky v. Washington National Insurance Company, held that in order to recover in a bad faith action against an insurer under 42 Pa.C.S. §8371, the plaintiff must “present clear and convincing evidence (1) that the insurer did not have a reasonable basis for denying benefits under the policy and (2) that the insurer knew of or recklessly disregarded its lack of a reasonable basis.” Further, the Court held that proof of an insurance company’s motive of self-interest or ill-will is not a prerequisite to prevailing in a bad faith claim under Section 8371, observing that evidence of the insurer’s knowledge or recklessness as to its lack of a reasonable basis in denying policy benefits is sufficient.  

Clearwater Construction v. Northampton County

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Contract Bidding on Jul 12, 2017.

On July 10, 2017, in Clearwater Construction v. Northampton County, the Pennsylvania Commonwealth Court, in a case of first impression, ruled that a disappointed bidder  lacked standing to challenge a contract awarded under the Public Private Transportation Partnership Act (P3 Act), 74 Pa. C.S. §§ 9101-9124, holding that “Absent a statutory provision to the contrary, generally disappointed bidders lack standing to challenge the award of a government contract. Section 9109(n) of the P3 Act does not provide that statutory basis as its application is limited to a “development entity,” which by statutory definition is a party to the contract.”  The case may be found at this link: http://www.pacourts.us/assets/opinions/Commonwealth/out/1658CD16_7-10-17.pdf?cb=1  

2017 AIA Documents

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Construction Industry News on May 1, 2017.

The 2017 AIA Documents were released today.  Information about the new forms, and free downloadable comparisons of the 2017 and 2007 version’s text, are available here: https://www.aiacontracts.org/contract-doc-pages/67216-2017-document-release?tab=library&mkt_tok=eyJpIjoiWXpZeE56UTRNVEppWldNeCIsInQiOiJqUWtGb1FTSWpwellwaE40YVFZM2hISm5WbVdaVWxEZlJkS3pKUkRPSE1xMEMrbjlUQUFpbXF2RmNNb1lzbFNFMmZsUVlQODgrS2hXcWI4ZmpiUkIyUnJNeEZia2ppQ2xqaFpvNFI5RkFKN1FEaHM4SzNvRytcL05idWlTRGRtcEIifQ%3D%3D  

Design Professionals’ Contracts

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Construction Industry News on Apr 14, 2017.

Design professionals’ contracts often contain indemnity clauses, and such clauses can impose liability not covered by the design professional’s insurance.  This article provides useful advise about the risks of such clauses: http://www.structuremag.org/?p=10874

Current Code: Upgrade Required?

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Construction Defect on Apr 13, 2017.

When an existing building is damaged and needs repair, the question often arises as to whether the building must be upgraded to the current code standards.  This article explores and explains the code sections dealing with this issue:  http://www.structuremag.org/wp-content/uploads/2017/01/C-CodesStand-Martin-Feb17-1.pdf

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