Construction

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Gerardo R. Barrios
 

Private and public construction projects involve a wide range of issues. Our attorneys work with every type of owner and decision-maker involved in the construction business: developers, contractors, subcontractors, suppliers, equipment lessors, design professionals, sureties, insurers and consulting and management firms.

Clients count on us to employ a creative, proactive and business-minded approach, and we assist with all phases of the project, from design and planning, to contract negotiation, preparation, bidding and review, construction, E&O defense, insurance coverage counseling and claims, surety/bond issues, litigation, and dispute avoidance and resolution.

Our construction attorneys also advise clients regarding numerous aspects of project completion and general business issues. Our representation includes land and major equipment acquisition, loan documentation and financing, labor relations, and regulatory and administrative reviews on behalf of clients involved in proceedings before OSHA, EPA and various state environmental agencies.

Our attorneys understand the intricacies of the construction industry. We have several attorneys who are themselves engineers, with educational backgrounds in aerospace, chemical, industrial, petroleum and business management engineering. Others have backgrounds designing and drafting HVAC, plumbing, mechanical and/or electrical systems for engineers on projects including health care facilities, commercial buildings (office towers), military facilities (missile silos), airports, prisons and retail stores. We also count among our members some of the only attorneys in our geographic region to have achieved Leadership in Energy and Environmental Design (LEED) AP status.

Baker Donelson's construction attorneys have participated in a wide range of construction matters and projects throughout the United States and in various international venues. Our attorneys have handled construction disputes at all levels of trial and appellate litigation, as well as through mediation, arbitration and other ADR techniques structured to resolve disputes efficiently for our clients. Additionally, our attorneys have earned a national reputation for excellence. Members of the Group are Fellows in the prestigious American College of Construction Lawyers, have been listed in Best Lawyers in America every year since 2003, have been selected for and serve on the American Arbitration Association's National Panel of Construction Arbitrators for Large and Complex Cases, and are registered design professionals.

Contract Negotiation and Project Representation

A well-drafted contract is often the best defense against litigation. Baker Donelson's construction attorneys have more than one hundred years' combined experience handling construction and development projects from idea inception through project completion. We call upon this experience in negotiation, working to craft a contract or agreement that reflects the needs and concerns of each particular client. As part of our comprehensive approach to client service, construction attorneys often work with other practice groups to develop tax and financing savings for our clients.

Baker Donelson's Construction attorneys analyze and advise on issues such as insurance requirements, indemnity provisions, liquidated damages, performance and schedule guarantees, and issues surrounding LEED projects. We also negotiate rights relating to unforeseen conditions, defective or non-conforming work, time extensions, progress and final payments, warranty and lien claims, additional compensation and project closeout.

Representative Experience

  • Represented a joint venture entity that constructed a $900 million automobile manufacturing facility in the Southeast. Assisted in all phases of project including contract negotiations with owner, subcontractors, vendors, suppliers, and local, state and federal agencies.
  • Retained by a worldwide energy services company and its power generation subsidiary to perform a risk and condition assessment of a suspended $241 million project involving the design and supply of boiler islands for a coal-fired thermal power plant located in Tanjung Jati B, Indonesia. Analyzed relevant contracts and documents to provide comprehensive advice to clients' management and counseled in decisions regarding the possible resumption of the project.
  • Represented a large steel producer in the closure of an existing mill and relocation of equipment, facilities and personnel to another site within Southeast. Assisted in all phases of project, including contract negotiations with subcontractors, suppliers, vendors and local, state and federal regulatory agencies.
  • Lead construction counsel for internationally-known snack food company in connection with the design and construction of its principal manufacturing facility.
  • Represented the owner in the procurement of property and construction of public/private golf course in Southeast.
  • Represented designer/builder of aquarium facility in Taiwan.
  • Represented the owners and developers in procurement of suitable sites and construction of light, medium and heavy commercial, retail, medical, industrial, recreational and luxury resort projects throughout the United States.

Dispute Resolution

We handle dispute resolution for clients in all tiers of the state and federal court systems, as well as before state and federal administrative agencies and contract appeals boards. Claims handled include:

  • Delay and disruption. 
  • Actual and constructive acceleration. 
  • Lost labor and equipment productivity. 
  • Incomplete or defective design. 
  • Warranty of specification suitability. 
  • Inadequate and uncoordinated project management.
  • Excessive changes (cardinal change). 
  • Impossibility and commercial impracticability. 
  • Differing site conditions. 
  • Slope and shoring failures and other soils-related problems. 
  • Denial of site access. 
  • Defective materials and equipment. 
  • Improper inspection. 
  • Failures of concrete and other structural elements. 
  • Safety violations. 
  • Rejection and repair of non-conforming work. 
  • Environmental hazards. 
  • Mechanic's liens, materialman's liens and bond claims. 
  • Payment and performance bonds (including federal Miller Act and state Little Miller Act bonds). 
  • Additional compensation and extensions of time. 
  • Relief from imposition of liquidated or actual damages. 
  • Default termination.

In certain cases, the costs of litigation outweigh the value of the claim, and clients rely on our in-depth experience in mediation and arbitration. A member of the Group currently serves on the American Arbitration Association's National Panel of Construction Arbitrators for Large and Complex Cases.

Representative Experience

  • Successfully defended the world's largest privately held construction company in a contract dispute involving claims by a subcontractor for costs and damages allegedly associated with the acceleration of the contract schedule of a lignite fired power plant located in Mississippi. After a four-day, three-part arbitration, the subcontractor's claim for $2.7 million in additional compensation (over the $6.3 million lump sum contract price) was summarily denied by the arbitrator.
  • Represented one of the world's largest privately held chemical companies in connection with a $37 million dispute arising from a major expansion of production facilities at its chemical manufacturing plant in the Gulf Coast.
  • Represented a leading global provider of comprehensive technology, engineering, procurement, construction, maintenance, fabrication, manufacturing, consulting, remediation and facilities management services in connection with a $55 million dispute arising from work performed and services provided for an estimated $900 million expansion of a petroleum refinery in Louisiana. The dispute included issues of delay/disruption, breach of contract, fabrication related claims, unpaid invoices, unfair trade practices and fraud. 
  • Represented a large aluminum and chemical manufacturer in connection with a $25 million dispute with a design, procurement and construction contractor and its professional liability insurer arising out of the reconstruction of the manufacturer’s Gulf Coast aluminum production facility, which had been destroyed in an explosion.
  • Represented a large industrial contractor in connection with a dispute arising out of the industrial contractor’s erection of a major recovery boiler on the West Coast.   
  • Represented a Gulf Coast pipeline contractor in an arbitration claim against the owners to recover $6 million in damages for extra work and for delay and disruption of its contract to construct a natural gas pipeline and associated facilities in New England, as well as defended the pipeline contractor against the owners' counterclaims of approximately $3 million. The claims and defenses involved almost every aspect of pipeline construction. In addition, the prosecution and defense required the contractor to overcome a differing site conditions clause, a "no damages for delay" clause, a notice provision, specific change orders and a liquidated damages clause. 
  • Represented prime contractor on earthwork contract for construction of the third parallel runway at Memphis International Airport in litigation for delay damages and cost overruns of more than $14 million as a result of undisclosed site conditions, changes in course and scope of work, and active interference. Favorable settlement following mediation.
  • Represented a professional architecture firm in a $10 million dispute regarding the construction of a baseball stadium in Louisiana. The dispute involved claims of delay, acceleration, lost profit, and design errors and omissions.
  • Represented the prime contractor on an earthwork contract as to the construction of the Nashville Superspeedway on claim of subcontractor for increased construction costs.
  • Represented a national general contractor in a dispute with a large national health care owner regarding the suspension and eventual resumption of projects in more than 20 states.
  • Represented the owner of a one-of-a-kind Midwest explosives facility which manufactured air bag igniters in a dispute with an EPC contractor over multi-million dollar cost overruns. The matter was resolved following a week-long mediation/summary trial.
  • Successfully defended a regional engineering firm against allegations of improper design of a sewer lift station and a public school, and purported negligent administration of the construction phase of a health clinic facility. All matters were either settled on favorable terms or dismissed.

Litigation

Experience has shown that dealing with the potential problem right away often results in a favorable resolution, and where appropriate, our attorneys frequently pursue alternative dispute resolution methods, including mediation. Many of our attorneys are licensed mediators, and we understand how to use mediation to its best advantage. When litigation is unavoidable, our trial attorneys are trained to listen first. We understand clients have different business and legal objectives, which range from righting a wrong to limiting financial exposure. We work with our clients to assess the issues and risks and then devise a litigation plan that will meet the client's objectives.

Our attorneys have represented clients against claims of construction cost overruns, differing site conditions, changes in project scope, construction defects, defects in plans and specifications, delay, acceleration, labor disruption and inefficiency, contract suspension, and contract termination, among others. We have vast experience in residential, commercial, industrial, church and public works projects, and have access to some of the best experts in the field. This breadth of knowledge allows us to avoid unnecessary roadblocks and to fashion creative solutions for both the insurer and the client.

Representative Experience

  • Won three-day construction case in Chancery Court in Nashville on behalf of a construction company on all claims being asserted, and successfully had the defendant's counterclaim dismissed with prejudice. Previous counsel representing the client had advised that the case could not be won.
  • Served as Tennessee counsel for more than 25 years to various national title insurance companies in the defense of mechanic's and materialmen's liens filed against insured properties.
  • Represented a general contractor in action against a subcontractor as to cause of the collapse of masonry walls and poor workmanship during the construction of a building to house a store for a national electronics retailer. Obtained jury verdict for general contract and subsequent award of attorney's fees from court.
  • Successfully upheld in Alabama Supreme Court the trial court's decision that granted a client's motion to compel arbitration and rejected the appellants' argument that the case did not involve interstate commerce.
  • Lead counsel in connection with the prosecution of a multimillion dollar claim to recover damages associated with the design and construction of a regional hospital and the proper installation, coordination and layout of highly specialized equipment
  • Represented a grading and paving subcontractor in arbitration action against a general contractor seeking balance of contract price withheld for alleged delay. Obtained award for full contract price, plus attorney fees under state prompt payment act.
  • Defended owner of a commercial facility in claim by a roofing contractor for work performed in connection with repairs made at a chemical fertilizer storage facility. Favorable settlement for owner.
  • Served as national defense counsel for contractors involved in construction defect litigation related to Exterior Insulation Finish Systems (EFIS), and as regional counsel for manufacturers of polybutylene pipe.

Professional Liability/Architects & Engineers

Professional liability claims against architects and engineers can create special problems for insurance carriers, and we have an impressive record in defending against E&O claims. These claims usually require specialized knowledge (i.e., of design, construction techniques, construction contracts, etc.) in order to evaluate them, and if not properly handled, they can result in massive liability. At the same time, professional liability claims are not just a matter of dollars and cents. The professional reputation of the architect or engineer is often on the line, too. We aim to limit exposure and resolve disputes in an efficient and cost-effective manner, often starting when a claim first comes to light.

One of our key strengths lies in our experience dealing with both insurers and their insureds. We understand the drivers on both sides of the relationship – the need to limit exposure, to be cost effective, and at the same time, to preserve professional reputation.

Representative Experience 

  • Defended individual engineers and their employer, a NASA contractor, in a False Claims Act investigation and qui tam lawsuit, resulting in a verdict that was 2% of the amount sought by the federal government.
  • Defended an architect in a claim related to the alleged improper design of an assisted living facility, resulting in a verdict that was a small fraction of plaintiff's demand.
  • Obtained a jury verdict on behalf of a geotechnical engineer in a lawsuit filed by the state concerning a defect in the running track at a state university.
  • Defended a structural engineer in a lawsuit filed by the state against both the architect and the engineer concerning the design of the Tennessee Performing Arts Center. Case settled.
  • Defended an architect in a lawsuit filed by the structural steel contractor concerning an entertainment arena in Nashville, Tennessee. Case settled.
  • Defended a mechanical/electrical/plumbing engineer against a mold claim made by the developer/owner of nursing homes across the Southeast. Case settled.
  • Obtained a jury verdict on behalf of an engineering firm against a wrongful death suit involving a trench collapse.
  • Defended a mechanical engineer in a lawsuit concerning the adequacy of an HVAC system installed in a multi-story office building. Case settled.
  • Defended through trial an architect on claims related to the improper design and construction administration of a historic structure conversion to condominiums. Virtually all claims were resolved in favor of the architect.
  • Defended an architect in connection with claims of improper design and project administration allegedly causing mold infestation in a large government office building.
  • Represented architectural and engineering firm in suit against former director and former employee for misappropriation of trade secrets, breach of fiduciary duty and interference with business relations. Judgment for plaintiff on liability, compensatory and punitive damages following eight-day bench trial; case settled on favorable terms prior to hearing on punitive damages.
  • Represented various owners, architects and contractors in the drafting and negotiation of contracts for projects ranging from residential renovations to large commercial projects, including hotels, industrial and energy-generating plants, casinos and hospitals, as well as provided counseling and guidance during projects for dispute avoidance and resolution pre-litigation.
  • Represented underwriters as insurer's counsel in connection with the City/County of Denver's claim in excess of $40 million against its architect on the Denver International Airport. Case resulted in verdict in favor of the insured/no money paid by underwriters.
  • Defended engineer in personal injury jury trial arising out of the collapse of a waterslide at a water park, seriously injuring several minors. Verdict against owners and operators of park, construction company and engineer on behalf of two plaintiffs was overturned on appeal. Case settled.
  • Defended an architect and general contractor against allegations in a lawsuit filed by a terminated architect that continued use of drawings to complete a hotel project infringed the terminated architect's copyright. The terminated architect had modified AIA contract to exclude implied license to use drawings if termination occurred. Case settled.