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Since the onset of the COVID-19 pandemic and the massive social and economic consequences it has wrought, owners and contractors alike have taken a harder look at their contracts.  Do the contracts have force majeure, waiver of consequential damages, or no damages for delay clauses?  Are the clauses written broadly enough to encompass the pandemic and its aftershocks?  It is safe to say that contracts negotiated pre-2020 look a lot different from those prepared after the pandemic was declared. One provision not regularly included in pre-pandemic construction contracts, but now standard in n

What makes a worker an employee versus an independent contractor?  How you classify an individual may change, depending on whether proposed revisions to the Fair Labor Standards Act (FLSA) by the Department of Labor are accepted and enacted. The proposed revisions were posted on the Federal Register’s website on October 13, 2022 and will be available for public comment until November 28, 2022. The proposal seeks to broaden the factors used to determine whether a worker is an employee, allowing more workers to be classified as employees who would then be entitled to the minimum wage and over

Is a failure to procure the right type of insurance for a construction contract a material breach of contract?  If so, what are the damages arising from that breach and are they actual or consequential?  A recent opinion from the Houston Court of Appeals answers these important questions. In Totalenergies Petrochemicals & Refining USA, Inc., v. Kinder Morgan Petcoke, LP, et al., an employee of Kinder Morgan Petcoke (Kinder Morgan), Gary Counts, died at a refinery owned by Totalenergies Petrochemicals & Refining (Total).  Counts’ estate filed suit against Kinder Morgan, Total and s

Recently, in a case in Alabama, an insurance company was able to deny coverage because the builder did not timely report the claim.  In American Builders Insurance Company v. Riverwood Construction, LLC., the issue was whether Riverwood Construction, the contractor and policyholder/insured, had to timely report lawsuits to its insurance carrier. Riverwood was sued in two residential cases in Alabama in 2017 and immediately hired an attorney to defend the case. But, Riverwood apparently failed to send notice of these lawsuits to its insurance carrier, American Builders, until 2019.  Once it

When is an arbitration clause illusory and, therefore, unenforceable? The Texas Supreme Court recently decided this issue in an employment context in In re Whataburger Restaurants LLC. In February 2013 Yvonne Cardwell sued her employer, Whataburger Restaurants LLC, claiming she had been injured while working at a Whataburger restaurant in El Paso, Texas. At the time she was hired, Cardwell signed an acknowledgement that she was as at-will employee and agreed to the policies in the 51-page Employee Handbook.  The Handbook included a provision requiring all workplace injury claims to be submitt

What happens when a clause in a construction purchase order conflicts with a similar, but not identical clause in a quote made part of the order?  The Houston Court of Appeals recently addressed this issue in the context of dueling arbitration clauses, voiding both of them. In Links Constr., LLC v. United Structures of America, Inc., the University of North Texas hired Links Construction, LLC (“Links”) to oversee construction of an indoor practice facility. Links subcontracted with United Structures of America (“United”) to design and provide materials for the roof using an executed P

Texas public policy has long favored freedom of contract. By in large, Texas courts will uphold what the parties bargained for in the contract. Of course, the parties negotiating the contract are in the best position to allocate risk as they see fit. However, there are several Texas statutes that cannot be waived or otherwise altered, thereby overriding, to some extent, the parties’ freedom of contract. A few notable examples of such “statutory overrides” impacting the construction industry are discussed below. Shortening the Statute of Limitations Under Texas Civil Practice and Remedies