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, Steele B. Windle III
   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, Steele B. Windle III
   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 - 11:30, Tyler Moffatt
   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?
   11:30 - 12:15, Tyler Moffatt
   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
   1:15 - 2:15, Deborah J. Bowers
   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
   2:15 - 3:15, Deborah J. Bowers
   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. Ethics
   3:30 - 4:30, Scott K. Tippett
   1. Avoiding Conflicts of Interest
   2. Attorney Fees
   3. Obligations to Clients
   4. Rules of Professional Conduct
   5. Upholding Client Confidentiality

DEBORAH J. BOWERS is a partner with Pinto Coates Kyre & Bowers, PLLC, where she has concentrated her practice on construction litigation and insurance coverage matters. She is a certified superior court mediator. Ms. Bowers is a member of the North Carolina Bar Association (chair, Insurance Law Section, 2018-2019). She has served on the Board of Directors for the North Carolina Association of Defense Attorneys, as well as having chaired the construction law practice group for that organization. Ms. Bowers has been named as a North Carolina Super Lawyer in the field of insurance law. She earned her B.A. degree from the University of Texas and her J.D. degree, cum laude, from the University of Houston, Bates College of Law.

TYLER MOFFATT is a partner with Moffatt & Moffatt, PLLC, in Boone, North Carolina, where he focuses his practice on working with small and medium size businesses in many industries. Mr. Moffatt's work with these businesses includes formation, organization and restructuring, real estate and business transactional, labor/employment, litigation, and intellectual property. He devotes substantial time to providing pro-bono services to small businesses both through his firm as well as through multiple small business assistance programs such as small business accelerator and incubator programs. Mr. Moffatt is licensed to practice law in the state courts of North Carolina and Tennessee and before the U.S. District Federal Court, U.S. Circuit Court of Appeal and U.S. Tax Court. In addition to practicing, he also teaches business law as an adjunct professor at Appalachian State University and Lees McRae College. Mr. Moffat earned his B.A. degree from North Carolina State University and his J.D. degree from Elon University School of Law.

SCOTT K. TIPPETT is an attorney with Hagan Barrett, PLLC, where he focuses his practice on wealth law and provides an integrated approach to estate planning and administration, asset protection planning, business law, and tax matters. He counsels individuals, families, and small to medium-sized businesses on a full range of business, tax, asset protection, and estate planning matters; from drafting business agreements for closely-held companies, to the transfer of a family business from one generation to the next, to estate and tax planning for high and ultra high net worth individuals. Mr. Tippett is accredited by the Office of General Counsel of the Veterans Administration to represent veterans seeking VA benefits. He earned his B.A. degree, cum laude, from Duke University and his J.D. degree from the University of North Carolina at Chapel Hill.

STEELE B. WINDLE III is an attorney in the law firm of Smith Terry Johnson & Windle where his practice is concentrated in construction law. Mr. Windle represents a wide variety of clients comprised of owners, developers, general contractors, subcontractors, and suppliers. He guides clients through every stage of a construction project and serves as proactive counsel when advising clients on how to prevent or resolve problems, as well as prosecuting and defending disputes involving extra work, delay, acceleration, construction defects and related disputes over insurance coverage. Mr. Windle frequently writes articles on construction law, construction contracting and lectures on construction law related topics. He received his B.S. degree from the University of Virginia and his J.D. degree from Wake Forest University. Mr. Windle is a member of the Construction Law Section of the North Carolina Bar Association and a member of the Construction Forum of the American Bar Association. He is a certified arbitrator and is on the panel of construction arbitrators of the American Arbitration Association. Mr. Windle has been designated as a Super Lawyer and as a Best Lawyer in America for many years. He is also an invited fellow of the Construction Lawyers Society of America.