Construction Law: Advanced Issues and Answers

Agenda / Content Covered

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1. Construction Contracts: Advanced Negotiation Techniques for the Top Sticking Points
   9:00 - 9:45, Jeremy P. Brummond
   1. Payment Clauses
   2. Pass-Through Clauses
   3. No Damage for Delay Clauses
   4. Performance and Timing Clauses
   5. Project Termination Clauses
   6. Liquidated Damages Clauses
2. Change Orders and Extra Work - Payment Issues Disentangled
   9:45 - 10:30, Jeremy P. Brummond
   1. Real vs. Perceived Changes
   2. Undocumented Oral Change Orders
   3. Changes Due to Defective Plans and Specifications
   4. Previously Unknown Site Conditions
   5. Additional, Unauthorized or Non-Conforming Work
   6. Change by Outside Forces: Market Shifts, Zoning Issues, etc.
   7. Change Order Impact Costs
3. Determining Responsibility and Remedy for Delays
   10:45 - 11:15, James F. Freeman III
   1. Excusable vs. Inexcusable Delays
   2. Compensable vs. Non-Compensable Delays
   3. Untangling Concurrent Delays
   4. Necessary Documentation
   5. Drafting a Recovery Schedule
   6. Applying a Waiver or "No Damage for Delay" Clause
4. Indemnification Disputes - What is the Scope and Meaning of the Contractual Clause?
   11:15 - 12:00, Lee B. Brumitt
   1. Types of Indemnity Clauses
   2. Detecting Illegal and Unenforceable Language
   3. How Courts Construe Indemnity Clauses
   4. Factoring in State Anti-Indemnification Statutes
   5. Determining Duty to Defend
5. Determining Who is Insured Under Commercial General Liability Policies
   1:00 - 1:45, Kenneth R. Goleaner
   1. The Certificate of Insurance
   2. The General Contractor as a Subcontractor's Additional Insured
   3. The General Contractor as an Additional Insured on the Duty to Defend
   4. The Most Common Additional Insured Endorsements
6. Coverage for Construction Defects Under CGL Policies
   1:45 - 2:30, Kenneth R. Goleaner
   1. Treating Defective Construction as an Occurrence
   2. Business Risk Exclusions and Subcontractor Exception Removal
   3. Avoiding the Known Risk Provision
   4. Voluntary Remediation and the "Legally Obligated" Requirement
   5. The Total Pollution Exclusion - How Total is it?
7. Negotiating Damages in Construction Disputes
   2:45 - 3:30, James F. Freeman III
   1. Distinguishing Direct and Consequential Damages
   2. Calculating Acceleration Damages
   3. Reducing Damages by Claiming Betterment
   4. Non-Monetary Remedies to a Construction Dispute
   5. Preserving Business Relationships While Negotiating Damages
8. Ethics for Construction Attorneys
   3:30 - 4:30, James F. Freeman III
   1. Client Authority
   2. Contractual Claims for Attorneys' Fees/Expenses
   3. Dealing With Unrepresented Persons
   4. Ethical Concerns as "Attorney for the Project"

Accreditation Details:

LEE B. BRUMITT is a director and shareholder with the law firm of Dysart Taylor Cotter McMonigle & Brumitt, P.C., where he has practiced law since 1984. His law practice focuses on construction law and litigation. Mr. Brumitt is a regular advocate for general contractors, subcontractors, suppliers and specialty contractors; and also represents owners and design professionals on public, commercial and residential projects. He reviews and advises on construction contracts, consults with contractors on legal issues arising during projects; and is involved in all varieties of construction claims, including, but not limited to, defect, contract performance, mechanic's lien, bond, retainage, prompt payment and change order claims. Mr. Brumitt earned his B.S. degree from Central Methodist College and his J.D. degree from Drake University.

JEREMY P. BRUMMOND is a member of Lewis Rice LLC where he practices in the litigation department. Though he represents clients in a variety of commercial litigation matters, he focuses on the areas of engineering and construction. Mr. Brummond has represented property owners, engineers, general contractors and specialty contractors. He has counseled such clients in contract negotiation and drafting; and has frequently represented such clients in construction-related litigation, including cases involving claimed construction defects, delay and impact claims, and mechanic's lien and payment bond claims. Mr. Brummond is licensed in Missouri and Illinois. He is a member of the American Bar Association (Forum on the Construction Industry) and the Bar Association of Metropolitan St. Louis's Construction Law Committee. Mr. Brummond earned his B.A. degree from Wartburg College and his J.D. degree, with honors, from the University of Missouri-Columbia School of Law.

JAMES F. FREEMAN III is an attorney with Swanson Bernard, LLC, where he practices in the areas of construction, land use, church, commercial litigation, business, contract, employment, probate litigation, appellate practice, transportation and corporate law. He is admitted to practice in Kansas, Missouri and before the U.S. Supreme Court, U.S. Court of Claims, U.S. Court of Appeals for the Eighth and Tenth Circuits and the U.S. District Court for the Districts of Missouri and Kansas. Mr. Freeman is a member of the Kansas City Metropolitan, Kansas and American bar associations, as well as The Missouri Bar. He earned his B.A. and J.D. degrees from the University of Missouri at Kansas City.

KENNETH R. GOLEANER is an attorney with Sanberg Phoenix & Von Gontard PC where he has been involved in a diversified practice, ranging from insurance coverage, appellate practice, first-party insurance claims, arson/fraud investigations and general insurance defense litigation. Mr. Goleaner is a member of the Missouri Organization of Defense Lawyers. He is admitted to practice in Missouri, and before the U.S. District Court for the Eastern District of Missouri, U.S. District Court for the Western District of Missouri and the U. S. Court of Appeals for the Eight Circuit. Mr. Goleaner earned his B.S. degree from Southwest Baptist University and his J.D. degree from the University of Missouri-Columbia.