Committee Chair Corner – Construction Law and Litigation Committee
Thomas V. McCarron
Semmes, Bowen & Semmes
tmccarron@semmes.com
Construction law covers such a wide range of complex topics, but for years the IADC Construction Law and Litigation Committee has been dedicated to educating and engaging defense lawyers on its wide array of timely topics. Our diverse Committee of lawyers represents property owners, construction managers, general contractors, subcontractors, architectural firms, structural engineers, designers, construction lenders, and many other “players” in the construction field. In order to best serve our members’ needs, as well as the IADC community of attorneys as a whole, we made it our goal to provide written updates on the latest developments in construction law, to dive into some of the more nuanced and technical aspects of representing clients in the construction setting, and to providing continuous networking and referral sources between our members, our clients, and experts.
It has been a pleasure to not only be a member of this Committee for the past 15 years, but to serve on its leadership in varying capacities from Vice Chair of Webinars to Committee Chair. While I also served as this Committee’s Chair in previous years (2006-2008), for the past two years, my intent was to focus our Committee’s efforts on some of the less frequently discussed aspects of construction law. Not only did our Committee leaders and members successfully accomplish that goal, but I am excited to see how our incoming Chair, Tom Buckley of the Hendrick Gardner firm in Raleigh, North Carolina, will build on that focus and momentum moving forward. Many thanks go out to our Vice Chairs, especially Pamela McGovern, our Vice Chair of Programs, who organized and also participated in a number of our programs over these last two years. Special thanks also go out to Ryan Harrison of the Paine Bickers firm, our Vice-Chair of Publications, and Adam O’Brien of the Wells Anderson firm out of Denver, Vice-Chair of Webinars.
Our first event this past year was a Webinar titled “The Role of a Surety in the Context of a Construction Project,” hosted on Wednesday, December 20, 2017. While most construction lawyers are familiar with varying levels of risk-balancing techniques like indemnification and liability waivers, not everyone is familiar with the ways in which sureties are used to finance, develop, and maintain construction projects or subsequent litigation. This Webinar provided all attendees with a detailed primer on the role of a surety in this context.
After celebrating the new year, the Construction Law and Litigation Committee attended the IADC Midyear Meeting in La Quinta, California on February 10, 2018. Over the span of the five-day conference, our Committee presented two separate and unique discussions.
The first program was held on Monday, February 12th in conjunction with the Corporate Counsel Committee, the In-House and Law Firm Management Committee, and the Product Liability Committee, and was titled, “Two Sides of the Same Coin: Perspectives of a New Inside Counsel.” Ms. Carin Brock, in-house counsel for Builders FirstSource, spoke alongside seasoned products liability and construction defects attorney (and Immediate Past Chair of our Committee) Charles E. Reynolds, II, about the different goals and perspectives of in-house and outside counsel. Ms. Brock spoke specifically to the challenges of switching from outside litigation defense to in-house counsel, including the different roles an in-house lawyer must play. The two speakers further discussed the importance of getting out into a client’s field in order to truly understand the nature of the work
The second program was held on Tuesday, February 13th and was titled, “Concurrent Delays: An Owner's Sword, Shield...or Land Mine?” The three speakers and moderator engaged in a lively discussion on the defense of “concurrent delay” claims, used mainly by owners as a means of avoiding extension-of-time liability and claims. This discussion not only provided its attendees with an overview of the different ways in which the term “concurrency” is used in the construction context, but also suggested some best practices for representing a client who has unwittingly become a victim to a “concurrent delay” claim.
Only two months after the Midyear Meeting our Vice Chair of Publications, Ryan L. Harrison, distributed for publication the April 2018 Construction Law and Litigation Committee Newsletter. This Newsletter included an article titled, “A Word to the Wise – The AIA Revised Contract Documents Could Lead to New and Unanticipated Risks,” written by Committee member George Talarico. This article provided a much needed and useful guide to the 2017 revisions to the AIA forms, including a detailed analysis on why the changes were likely to cause more than a facial or stylistic deviation in the meaning of contract terms.
Most recently, our Committee hosted the Webinar “WRAP Policies - Navigating Ethical Issues on Your Construction Files” on Wednesday, May 23, 2018. This Webinar tackled both the practical and ethical issues associated with representing more than one party under a WRAP insurance policy. As insurance companies are continually changing their methods to minimize costs and potential liability on construction sites, it has become increasingly essential for lawyers to adapt and maintain the same level of legal integrity. This talk included recommendations on when you can represent more than one party on a site, when you may have to withdraw from such representation, and how to properly report to the carrier without violating various confidentiality or trust rules.
The basic principles in construction law are not new, but they are constantly changing in response to new business-models, insurance products, and technology. To be an effective construction lawyer, you need to know a little bit of everything: contractual indemnity, personal injury, third-party privity, expansion joints, engineering costs, ADA regulations, architectural design, claim trends, surety law, and so much more. Our Committee is dedicated to helping its members gain this wealth of knowledge, all while keeping the topics of discussion fresh and interesting.
If you are interested in joining the Construction Committee as a member, or would like to try us out, please reach out to myself, tmccarron@semmes.com, or incoming Chair, Tom Buckley, TBuckley@hendrickgardner.com, and join us for one of our monthly calls or meetings.