ALI-ABA Audio Seminar
Construction Industry Controversies: Analyzing and Preventing Contract
Provision Disputes
August 26, 2009
Telephone Seminar/Audio Webcast
TABLE OF CONTENTS
Page
AGENDA
ix
FACULTY PARTICIPANTS
xi
FACULTY BIOGRAPHIES
xiii
STUDY MATERIALS
1.
Construction Industry Controversies: Analyzing and Preventing Contract
Provision Disputes
By John G. Cameron, Jr.
1
2.
The Recent Progeny of Spearin--When Is an Express Warranty Implied
By Lynn R. Axelroth
105
3.
There Must Be Some Way Out of Here: The Top Ten Issues in
Negotiating AIA Form Contracts; A201 General Conditions of the
Contract for Construction
By Lynn R. Axelroth
119
4.
A Focus on Issues for Owners and Lenders
By Lynn R. Axelroth
137
5.
An In-Depth Look at the A201 “Mutual” Waiver of Consequential
Damages
By Lynn R. Axelroth
153
6.
Risk Management--Cutting Edge Insurance Solutions
By Mark S. DePillis
Submitted by Lynn R. Axelroth
177
7.
Consequential Damages Covered Under Builders' Risk and Professional
Liability Insurance
By Mark S. DePillis
Submitted by Lynn R. Axelroth
187
8.
Paul M. Lurie's Talking Topics
By Paul Lurie
197
9.
Excerpts from THE Construction Contracts Book: How to Find Common
Ground in Negotiating Design and Construction Clauses
Edited by Daniel S. Brennan, Jennifer A. Nielsen, and Michael J. Hanahan
Submitted by Paul M. Lurie
199
Differing Site Conditions
200
Delays/Time Extensions
203
Dispute Resolution—Consequential Damages
205
ALI-ABA Audio Seminar
Construction Industry Controversies:
Analyzing and Preventing Contract Provision Disputes
Wednesday, August 26, 2009
Telephone Seminar/Audio Webcast
PROGRAM
(All Times Eastern Daylight)
1:00 pm Construction Industry Controversies: Analyzing and Preventing Contract Provision Disputes
--Panel Discussion
2:15 pm Audience Questions 2:30 pm Adjournment
ALI-ABA Audio Seminar
Construction Industry Controversies:
Analyzing and Preventing Contract Provision Disputes
Wednesday, August 26, 2009
Live Telephone/Audio Webcast
PLANNING CHAIR
John G. Cameron, Jr., Esquire
Dickinson Wright PLLC Suite 1000
200 Ottawa Avenue, NW Grand Rapids, MI 49503-2427
FACULTY
Lynn R. Axelroth, Esquire Paul M. Lurie, Esquire
Partner Construction Law Group
Ballard Spahr Andrews & Ingersoll, LLP Schiff Hardin LLP 1735 Market Street, 51st Floor 6600 Sears Tower Philadelphia, PA 19103-7599 Chicago, IL 60606
Josh M. Leavitt, Esquire
Partner K&L Gates
Suite 3100 70 West Madison Street Chicago, IL 60602-4207
FACULTY BIOGRAPHIES Planning Chair
John G. Cameron, Jr., Esquire Dickinson Wright PLLC
Grand Rapids, MI
Mr. Cameron represents architects, contractors, subcontractors, owners, landlords, tenants, developers and lenders in connection with all aspects of the real estate development practice. His practice has a particular emphasis on construction and real estate law, including land titles, mineral rights, conservation and protective easements, shopping center development,
condominiums, apartments and residential subdivisions, office building development and rental, property acquisition, property tax matters, commercial leases, construction contract preparation and negotiation, financing devices, condemnation, zoning, and other land use matters. Mr. Cameron is a frequent lecturer for CLE organizations, including ALI-ABA, for which he is the author of A Practitioner’s Guide to Construction Law (2000). Other published works of his include several chapters in
Michigan ICLE books, Michigan Real Estate Forms with Practice Commentary (LexisNexis, 1988), and Michigan Real Property Law: Principles and Commentary. Elected to the American College of Real Estate Lawyers, Mr. Cameron is a member of the American Law Institute and is a member of the ALI-ABA Real Estate Advisory Panel. He has been named one of the Best
Lawyers in America in both real estate law and construction law since 1996 and a Michigan Top Super Lawyer. He received his law degree from Wayne State University.
Faculty
Lynn R. Axelroth, Esquire
Ballard Spahr Andrews & Ingersoll, LLP Philadelphia, PA
A partner in Ballard Spahr's Philadelphia office, Ms. Axelroth's practice includes representing corporate, institutional, individual and public owners, developers, public/private joint venturers, lenders, and members of the design and construction industry in all aspects of complex real estate development, cutting edge contracts, workouts and financing, and alternative dispute resolution. Ms. Axelroth chaired Ballard Spahr's Construction Law Practice Group and was the first chair and founding member of the Division of Owners and Lenders of the ABA Forum on the Construction Industry (FCI). She is an elected Fellow of the American College of Real Estate Lawyers and the American College of Construction Lawyers, where she serves on the Board of Governors. Ms. Axelroth speaks and writes extensively on matters relating to real estate, construction and public/private transactions, and among many other publications, has
authored chapters in Fundamentals of Construction Law (FCI) and Inside the Minds: Legal Strategies for the Construction Industry (Aspatore). This year Ms. Axelroth was honored by the Philadelphia Chapter of Commercial Real Estate Women as one of five women having the most
Mr. Lurie has been business and legal counsel for major owners, developers, design and construction firms for more than 40 years. His experience includes providing counsel and advocacy for contract negotiation and dispute avoidance and resolution. His ability to get deals done and disputes resolved stems from his broad knowledge of the business of real estate, design and construction and from his many years of
experience as a construction arbitrator and mediator. A graduate of the University of Michigan (B.A., 1962; J.D., 1965), Mr. Lurie is the recipient of numerous awards and has spoken and written on a variety of construction in law topics for several CLE and other legal organizations. According to the 2008 edition of Who's Who Legal: Illinois, he has "helped define the construction Bar in Illinois" and was repeatedly identified by peers as a "dean of the Bar." Mr. Lurie is a
certified mediator with the International Mediation Institute, and is a member of the American Arbitration Association and the American Society of Civil Engineers, among many associations. He is also a member of Schiff Hardin's Construction Industry Ownership Transition Team. Josh M. Leavitt, Esquire
K&L Gates Chicago, IL
A partner at K&L Gates, Mr. Leavitt is litigates, arbitrates and mediates a wide variety of construction and real estate claims. With almost 25 years of commercial litigation experience, he has litigated a wide variety of construction and real estate claims, most typically involving issues relating to defective design and construction, scheduling, delay, disruption, interference, out of sequence work, mechanics' lien, wrongful termination, extra work, change orders, fraud, construction lending, and commercial lease disputes. Mr. Leavitt has authored numerous articles for publications including the Journal of the American College of
Construction Lawyers. He has lectured on construction delay and disruption claims, liability of design professionals and contractors, electronic discovery, mediation and arbitration strategies, construction defects, negotiating and drafting contracts, and changes to industry form contracts. An elected
member of the Society of Illinois Construction Attorneys, Mr. Leavitt has been referenced annually (since 2007) in the Illinois construction law section of Chambers' USA America's Leading Lawyers for Business, and was named in the 2009 Best Lawyers in America in construction law. He earned his B.A. from Yale University and his J.D. from New York University School of Law.
