Construction Law: Advanced Issues and Answers

Agenda / Content Covered

All times are shown in Central time.

1. Construction Contracts: Advanced Negotiation Techniques for the Top Sticking Points
   9:00 - 9:45, Stephen D. Marso
   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, Stephen D. Marso
   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, Patrick Thornton
   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. Determining Who is Insured Under Commercial General Liability Policies
   11:15 - 11:45, Patrick Thornton
   
   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
5. Negotiating Damages in Construction Disputes
   11:45 - 12:30, Patrick Thornton
   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
6. Indemnification Disputes - What is the Scope and Meaning of the Contractual Clause?
   1:30 - 2:30, James F. Freeman III
   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
7. Coverage for Construction Defects Under CGL Policies
   2:45 - 3:30, James F. Freeman III
   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?
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"

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.

STEPHEN D MARSO is a member of the law firm of Whitfield & Eddy, P.L.C., in it's Des Moines, Iowa office. Mr. Marso’s primary areas of practice are construction law and litigation, and he is licensed to practice in the states of Iowa and Nebraska as well as several federal courts. Mr. Marso is an arbitrator on the American Arbitration Association’s roster of construction arbitrators and the author of various publications. He is a member of the Polk County, Iowa State, Nebraska State, and American bar associations, and is a member of several construction-industry organizations and associations. Mr. Marso earned his undergraduate degree, magna cum laude, from Hope College and his J.D. degree, with high distinction, from the University of Iowa College of Law.

PATRICK THORNTON is an attorney at Lewis Rice LLC. His practices primarily in the areas of construction and environmental law, medical malpractice, and commercial litigation. Mr. Thornton prosecutes and defends matters involving insurance coverage disputes, mechanic's liens, eminent domain and condemnation, breaches of contract, and numerous tort theories. He represents clients of many sizes, including individuals, small businesses, limited partnerships, homeowners associations, municipalities, and large private companies. A member of The Missouri Bar and Illinois State Bar Association, he has litigated cases in the federal and state courts of both states as well as the Eighth Circuit Court of Appeals. Mr. Thornton earned his B.A degree, cum laude, from the University of Notre Dame and his J.D. degree, cum laude, from Washington University in St. Louis School of Law.