Articles on Construction Law

Illinois’ New Retainage Law By James Rohlfing Construction Law, October 2019 Effective August 20, 2019, Illinois law provides that a maximum of 10 percent retainage may be withheld from payments under private construction contracts and, after the contract is one-half complete, retainage must be reduced to 5 percent for the remainder of the contract.
Proper Payment Defense Against Mechanics Lien Claims in Illinois: Reliance on Sworn Statutory Statements By Paul Peterson Construction Law, October 2019 A discussion of some of the key cases construing the interplay between the proper payment defense and statutory sworn statements.
Retention Limitation: Another Wrinkle to the Illinois Contractor Prompt Payment Act By Paul Peterson Construction Law, October 2019 Public Act 101-0432 has added a retention limitation to the Illinois Contractor Prompt Payment Act effective for construction contracts entered into after August 20, 2019.
Court weighs in on constructive fraud in contractor lien dispute, summary judgment burdens – IL first district By James T. Rohlfing Construction Law, July 2019 The first district recently affirmed partial summary judgment for a restaurant tenant in a contractor’s mechanics lien claim in MEP Construction, LLC v. Truco MP, LLC.
No good deed: Court holds that financial contributions to construction project does not confer standing By Steven D. Mroczkowski Construction Law, July 2019 A summary of Goldfarb v. Bautista Concrete, Inc.
Sienna Court: Minton overruled and no implied warranty of habitability against subcontractors without contractual relationship By Steven D. Mroczkowski Real Estate Law, July 2019 In December 2018, the Supreme Court of Illinois decided the purchaser of a newly-constructed home may not assert a claim for breach of an implied warranty of habitability against a subcontractor that participated in the construction but with which the purchaser had no contractual relationship.
Sienna Court: Minton overruled and no implied warranty of habitability against subcontractors without contractual relationship By Steven D. Mroczkowski Construction Law, April 2019 In December 2018, the Supreme Court of Illinois decided the purchaser of a newly-constructed hom may not assert a claim for breach of an implied warranty of habitability against a subcontractor that participated in the construction but with which the purchaser had no contractual relationship.
Would broader use of P3s benefit subcontractors? By James T. Rohlfing Construction Law, April 2019 Public private partnerships—a method of involving private parties in some or all of the financing, design, construction, and operation of traditionally public building or infrastructure projects—are becoming increasingly popular.
Arbitration vs. litigation: Some thoughts on binding dispute resolution clauses in construction contracts By James Dash Construction Law, January 2019 Arbitration most often is faster than litigation in almost any court but, depending on how the neutral handles discovery and the hearing, it is not necessarily less expensive.
Effective use of the subcontractor’s sworn statement By Randolph E. Ruff Construction Law, January 2019 The subcontractor's sworn statement is one of most effective tools which contractors use to ensure that lower-tier subcontractors and suppliers receive adequate payment throughout the job.
Pass through and liquidating agreements for the construction industry By Margery Newman Construction Law, January 2019 The practical effect of a pass-through claim is the prevention of inefficiencies that result from the privity doctrine: Without a mechanism by which to avoid this doctrine, the subcontractor would have to sue the prime contractor, who in turn would have to sue the owner.
Constructing a bridge between the Home Repair and Remodeling Act and the Illinois Mechanics Lien Act By Adam B. Whiteman Construction Law, December 2018 A look at the significance of the Contractor’s Sworn Statement and the Home Repair and Remodeling Act.
Court affirms engineer’s limitation of liability By Werner Sabo Construction Law, December 2018 A federal court in Georgia recently held in U.S. Nitrogen v. Weatherly, Inc. that a limitation of liability provision in an engineer’s contract with the owner was effective and did not violate public policy.
Despite modern trend Ohio Supreme Court does not reconsider prior precedent, finds inadvertent defective work by subcontractor can never be a fortuitous “occurrence” By Clifford J. Shapiro Construction Law, December 2018 The Ohio Supreme Court ruled in Ohio Northern University v. Charles Construction Services Inc. that property damage caused by a subcontractor’s faulty workmanship can never be an accidental “occurrence” within the meaning of the commercial general liability insurance policy, and is therefore not covered.
Federal courts carve out their own rule for construction defect coverage in Illinois based on their own assessment of what triggers a duty to defend under commercial general liability policies By Geoffrey A. Bryce & Jennifer Cromheecke Insurance Law, December 2018 While Illinois trial and appellate courts overwhelmingly agree that the purpose of comprehensive general liability policies is to protect the insured from liability for injury or damage to persons or property and not to pay for costs associated with repairing or replacing the insured’s defective workmanship, federal courts are shifting to a less restrictive stance.
Renewable energy construction contracts: Some “caveat emptor” tips for farm owners and bidding contractors By Nathan Hinch Construction Law, December 2018 An overview of what to look for in renewable energy construction contracts.
Federal courts carve out their own rule for construction defect coverage in Illinois based on their own assessment of what triggers a duty to defend under commercial general liability policies By Geoffrey A. Bryce & Jennifer Cromheecke Construction Law, October 2018 While Illinois trial and appellate courts overwhelmingly agree that the purpose of comprehensive general liability policies is to protect the insured from liability for injury or damage to persons or property and not to pay for costs associated with repairing or replacing the insured’s defective workmanship, federal courts are shifting to a less restrictive stance.
Thank you for the opportunity to serve … By Jim Dash Construction Law, October 2018 A note from the Construction Law Section's past chair, Jim Dash.
Arbitration with nonsignatories to an agreement to arbitrate: The state of play in Illinois By Randall S. Rapp & John N. Rapp Construction Law, August 2018 Why and how a nonsignatory to an agreement to arbitrate can compel arbitration or be compelled to arbitrate in Illinois.
Construction legislative status report Construction Law, August 2018 On overview of bills affecting the construction and real estate industries that are awaiting Gov. Bruce Rauner's signature.
Extra-contractual remedies in Illinois By James M. Dash & Steven D. Mroczkowski Construction Law, February 2018 Even where no express contract exists, implied contracts can be created as a result of parties’ actions.
Preparing for the changes in the new AIA 2017 forms By Justin L. Weisberg Construction Law, February 2018 After a decade, the AIA released new design and construction contract forms in April 2017. Some of the more notable changes to the AIA construction contract documents are summarized here.
231 W. Scott - What is an attorney supposed to do? By Paul Peterson Construction Law, December 2017 The nightmare that is 231 W. Scott points out several areas that an owner and the owner's attorney should focus on when entering into a construction project.
Seventh Circuit finds duty to defend is triggered under Illinois law where subcontractor’s defective work causes damage to other parts of project By Clifford J. Shapiro Construction Law, December 2017 It remains to be seen whether or to what extent the courts in Illinois will follow the Westfield Insurance Company v. National Decorating Service, Inc. decision with respect to coverage under subcontractor policies in similar circumstances.
The financially distressed subcontractor on a government contract: What a prime contractor should do to protect the project and itself By Jay Bender Construction Law, October 2017 As federal regulations generally place the burden of compliance on prime contractors, a financially distressed subcontractor is a concern not only for the sub, but also for the prime contractor.
Insurance policy did not prevent association recovery from subcontractors for defective work By Justin L. Weisberg Construction Law, October 2017 On February 17, the First District Appellate Court issued an opinion regarding the Implied Warranty of Habitability in the case of Sienna Court Condominium Association v. Champion Aluminum Court et al.
Removable trade fixtures, large and small, are generally not lienable: Illinois court holds no mechanics lien rights in 500-foot-tall Wind Energy System By Steven D. Mroczkowski Construction Law, August 2017 In general, removable trade fixtures are considered personal property not subject to claims under the Illinois Mechanics Lien Act. As made clear by the recent case of AUI Construction Group, LLC v. Vaessen, this is true regardless of the size of the trade fixture.
2015 AAA Construction Industry Arbitration Rules: Fair, efficient & economical arbitrations? By Randall S. Rapp & John N. Rapp Construction Law, June 2017 While the 2015 Rules may not cause significant changes in all arbitrations, they ultimately provide arbitrators adept at managing their arbitrations with the power to provide fairer, more efficient, and more economical arbitration experiences. But the new Rules also add complexity and open the door to court-like discovery and procedures.
Living with the New AAA Construction Industry Arbitration Rules By Raymond A. Fylstra Construction Law, June 2017 While widely and justifiably hailed for modernizing arbitration procedures, the new Rules still leave large gaps and create difficult dilemmas for parties who have already agreed to arbitrate.
Some insurance industry help for defective construction claims By Geoff Bryce Insurance Law, June 2017 According to current case law, the standing rule in Illinois is that there is no comprehensive general liability insurance coverage for any construction defect claim where the claim is that only the building itself was damaged.

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