South Carolina Construction Lawyer


Joint Venture Endorsement Covers Design Liability for General Contractor in Virginia (4th Circuit)

The 4th Circuit, applying North Carolina law, recently concluded that an insurer had a duty to indemnify a policyholder for issues related to foundation design at a student housing project. Clancy & Theys was a general contractor and joint venture partner with another entity. To insure its liability as a partner or venturer in the joint venture, Clancy purchased a “Joint Venture Endorsement” to its Westchester Insurance policy to cover its liability as a partner in the Brasfield/Clancy Joint Venture. The underlying policy — a commercial general liability and professional liability policy — excluded coverage for joint venture liability, providing, “No person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations.” After construction was well under way, a portion of the building began to lean, damaging other portions of the building. After a plan fo..


Notice of Project Commencement

In the past, South Carolina mechanic’s lien law placed the prime contractor in a position akin to a lightning rod for various debt obligations owed by suppliers and subcontractors. Project subcontractors and suppliers to the GC could only collect on mechanics lien claims to the extent of the unpaid balance owed by the Owner to the GC. A third tier subcontractor or remote supplier’s claim was valid against the remaining funds, even if the GC had paid the second tier subcontractor in full. The payment defense applied only to the debt from the Owner to the GC and payment in full by the GC to the subcontractor did not matter. Now, general contractors and residential home builders have protection in South Carolina via stutory creation. The Notice of Project Commencement is a document filed by the GC, within 15 days of the start of work, which contains: (1) the name and address of the GC; (2) the name and address of the owner; (3) a general description of the improvement (project); and (4..


Damages for Emotional Distress in Construction Defect Cases?

Traditionally, courts have not allowed a claimant to recover damages for emotional distress in actions regarding construction defects. However, more and more courts are beginning to consider these damages if accompanied by extrinsic circumstances. Mississippi is appropriate to examine as Harper Whitwell PLLC is proud to call Oxford home. When a party intentionally conducts itself in a manner which evokes outrage or revulsion and such reaction is reasonably foreseeable, an award for damages for emotional distress is warranted. Cherry Bark Builders v. Wagner, 781 So. 2d 919, 923 (Miss. Ct. App. 2001). In this case, evidence was considered which showed the contractor knew the owner was upset throughout the duration of the improper construction. Further, the contractor lied to the owner, the owner had to wait months for relief, had to employ and attorney to deal with the settlement, and was faced with having to settle with less than she bargained for. See David W. Mockbee, Construction La..


Notice of Furnishing and Remote Claimants

A “remote” claimant can be defined as one contributing labor or materials to a construction project who does not have a direct contract with the general contractor. This is typically a sub of a sub or a material supplier who sells to a subcontractor. The key is the provider must not be in privvity with the GC or owner. In order to protect remote rights, a provider should “raise its hand” by sending notice to the general contractor by Certified Mail, Return Receipt Requested (see S.C. Code Ann. § 29-5-20). This should be done at the beginning of the project and on subsequent occasions assuming more materials or services are provided. Formal requirements are found in the statute.


OSHA delays implementation of Silica Regulations until 9/23

OSHA announced a 90 day delay for the launch of its silica guidelines and regulations. We first reported on the guidelines, which were many years in the making, back during February 2016. The delay appears to be administrative in nature and is not a departure from precedent. If you would like to discuss this, or any other legal matters, contact Clay Olson at 843-224-6676. Email clay@harperwhitwell.com


DELAY CLAUSES IN CONSTRUCTION CONTRACTS

Delays on construction projects cost money. Because delays are typically the result of several factors and actors, contractors need to address delays and the apportionment of damages in their contracts. No Damage for Delay Clauses These clauses are exactly as they sound. The enforceability of these varies from jurisdiction to jurisdiction. South Carolina has ruled “In many respects, SC policy does not favor punishing a party for a delay arising from negligence and unlucky circumstances. Generally, no-damage-for-delay provisions are valid and enforceable so long as they meet ordinary rules governing the validity of contracts.” U.S. for Use and Benefit of Williams Elec. Co., Inc. v. Metric Constructors, Inc., 325 S.C. 129, 132, 480 S.E.2d 447, 448 (1997). South Carolina recognizes several exceptions to this general rule, including “delay caused by fraud, misrepresentation, or other bad faith; active interference; delay which amounts to an abandonment of the contract; and gross negligen..


Consensusdocs and Public Projects

I have attached some information provided by Consensusdocs which is an excellent resource for contractors bidding on public projects. Link to Consensusdocs Guidelines Please contact Clay Olson if you would like to discuss public bidding and procurement in South Carolina. 843-224-6676 (m0bile) or email clay@harperwhitwell.com


Harleysville Decision Confirms Crossman, cautions insurance carriers

Brief Facts: Insurance carrier (Harleysville) insured a Developer which was sued under several names or “d/b/a” identities. Developer was sued for construction defects. Carrier defended the claims on behalf of the Developer under various reservations of rights. General verdicts were returned against the Developer entities for $4,500,000.00 in actual damages and $1,000,000 in punitive damages. Insurance carrier then filed a declaratory judgment action seeking a determination of what portion of the damages were allocated to covered damages. Key Holding: Reservation of Rights letters issued by carrier were not adequate under the circumstances and, therefore, declaratory relief was denied. Reservations were found to be non-specific recitations of the policy language. Because the reservations included non-specific, generic language, the insurance carrier could not contest coverage after the general verdict was issued. “(G)eneric denials of coverage coupled with furnishing the insured with ..


Pella Window Update in South Carolina MDL

A US District Court Judge recently barred testimony from three witnesses retained by Plaintiffs in the MDL action which seeks a finding that Pella Corp.’s Architect Series and Designer Series are defective. Specifically, Plaintiff’s experts are barred from entering testimony suggesting that “leakage paths” allow water to penetrate into vulnerable areas of the windows as a result of defective design. (See In re: Pella Corporation Architect and Designer Series Windows Marketing, Sales Practices and products Liability Litigation, MDL 2514, Case No. 14mn1, D. S.C.; 2016 U.S. Dist. LEXIS 171502). The expert testimony will be excluded for failing to consider “alternative theories” and or causes for the alleged problem. Wood Preservation Series and Leakage Paths The challenged experts had stated that the wood treatment used to protect wood and other areas of the windows is insufficient. During their site inspections, the experts viewed 477 windows, documented the interior and exterior cond..



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