The Critical Path - June 2006

Thursday, February 11, 2016 The Critical Path, December 2006   VOLUME 1 ISSUE 2  

-40+ years Experience

-Engineering, Architecture, & Construction Consulting Services

-Expert Witness Testimony

-Dispute Avoidance & Resolution

-Forensic Engineering

-Forensic Project Management (FPM®)

-Time Impact Analysis (TIA®)

-Capital Project Management Systems (CPMS®)

Topic List
From the Editor
From the Chair
State Case Notes
Federal Case Notes
Feature Articles
From the Editor

In this issue we have Federal case notes from the United States Court of Appeals, Second Circuit and Seventh Circuit, and from the Supreme Court for the State of Kansas.  We are featuring three articles, one of which was published in the Fall 2006 edition of In House Defense Quarterly, and the other was published in the October edition of the Virginia Bar monthly magazine.  Both authors graciously gave their permission for these articles to be reprinted.  We felt these two articles were worth a reprint to a wider readership.

From the Chair

by C. William Daniels, Jr.

Happy Holidays!!  We hope this edition of the Critical Path finds you, your family, and your firm healthy and looking forward to a prosperous 2007.  This edition of The Critical Path is another fine collection of articles compiled by our many fine authors and editorial staff.

State Case Notes
Breach of Contract does Not Constitute Violation of Texas Deceptive Trade Practices Act (DTPA)
by Julie S. Elmer

Mays v. Pierce, --S.W.3d--, 2006 WL 2729684 (Tex. App.-Hous. (14 Dist.) Sept. 26, 2006)

This case involves a mold remediation gone awry, and is part of the new wave of litigation against mold remediation contractors. 

In 2001, Connie Pierce contracted with Edward Mays d/b/a Pro-Tech to perform work on her home.  The contract described the scope of work as “mold and water remediation/restoration of contents and structure.”  Pro-Tech arranged for mold testing of Ms. Pierce’s home and told her after the results revealed toxic mold that she and her daughter should leave the house immediately.  Ms. Pierce followed this advice and moved into a motel without packing any of her belongings.

Federal Case Notes
Fall Federal Case Notes
by Catherine L. Schnaubelt

Murdock & Sons Construction, Inc. v. Goheen General Construction, Inc., 461 F.3d 837 (United States Court of Appeals for the Seventh Circuit August 17, 2006). 

The United States Court of Appeals for the Seventh Circuit recently affirmed a decision by the lower court that a subcontractor was not entitled to an extension of time to complete work under the terms of a contract.  The underlying lawsuit involved the subcontractor, Murdock & Sons, requesting a “claim of constructive acceleration,” which arises when the owner requires the contractor to adhere to the original performance deadline in the contract even though the contract provides the contractor with periods of excusable delay that entitle the contractor to a longer performance period.

Feature Articles
Tips for Defending the Masonry Contractor
by Robert R. Foos

Here in the Midwest a masonry contractor’s primary cause for concern is water infiltration resulting in allegations of toxic mold growth.  Anytime a brick veneer structure is alleged to have a water infiltration problem, the masonry contractor is sure to be a target because water first must infiltrate the brick veneer before it can do any damage inside the walls of the structure.  An attorney not experienced at handling masonry construction claims may not understand that water is going to get behind brick veneer regardless of how well the mason completes his job.  So, the real question becomes: “What happens to the water after it gets behind the brick?”

A Saga of Condos, Courts and Coverage
The Wisconsin Peregrinations of Construction Defect Litigation and the Economic Loss Doctrine
by Michael F. Aylward

Since the 1990s, the boom in new housing, especially in the West and Southwest, has given rise to a parallel surge in construction defect litigation.  With such claims has come a demand for insurance coverage that CGL carriers have resisted for the reason, among others, that claims for breach of contract based on an insured’s failure to perform as promised should not be an insurable “occurrence.”

Special Offer

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• General acceptance
• Reliability of foundation
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The Critcial Path, June 2006
June 9, 2006
Vol. 1 Issue 1
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