Archive:January 2014

AAA Issues Optional Appellate Arbitration Rules
Recent Article Offers Help in Navigating Forensic Schedule Analysis
Texas Supreme Court Holds “Contractual Liability” Exclusion Inapplicable

AAA Issues Optional Appellate Arbitration Rules

By J. P. Duffy, K&L Gates, New York

A significant set of new rules were issued by the American Arbitration Association (AAA) which will afford parties the ability to appeal arbitral awards to specialized appellate tribunals. The new Optional Appellate Arbitration Rules, which could apply to arbitrations concerning construction matters, are noteworthy for arbitrations as they offer an arbitral structure — outside of judicial enforcement regimes — for reviewing awards alleged to suffer from serious factual or legal defects. To learn more about the new rules, click here.

This article was originally published in the International Law Office Arbitration Newsletter on January 30, 2014.

Recent Article Offers Help in Navigating Forensic Schedule Analysis

By Ryan D. DeMotte, K&L Gates, Pittsburgh

For construction attorneys looking for guidance in navigating the often confusing world of forensic schedule analysis ("FSA"), Patrick Kelly’s and William Franczek’s article in the Fall 2013 edition of The Construction Lawyer, "Clearing the Smoke: Forensic Schedule Analysis Method Selection for Construction Attorneys" provides a useful overview. The article describes the controversies over the legitimacy of FSA, and then evaluates the pros and cons of the various FSA methods and discusses the factors that analysts and attorneys should consider in selecting an FSA method for a particular case.

The authors point out that FSA methods go by a number of different names, and they helpfully provide a four-family classification of the main methods: (1) as-planned vs. as-built, (2) contemporaneous period analysis, (3) retrospective time impact analysis, and (4) collapsed as-built.

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Texas Supreme Court Holds “Contractual Liability” Exclusion Inapplicable

By: Roberta D. Anderson, K&L Gates, Pittsburgh

In a highly anticipated decision issued on January 17, the Texas Supreme Court held that the standard commercial general liability (CGL) “contractual liability” exclusion does not void coverage for claims alleging that a contractor failed to construct a project in a “good and workmanlike manner” as required by the construction contract in Ewing Construction Company, Inc. v. Amerisure Insurance Company.

Had the Court answered “yes” to the Fifth Circuit’s certified question, there would have been a radical expansion of the standard contractual liability exclusion that would have been unsupported by — indeed, would have been contrary to — the court’s 2010 decision in Gilbert.  The implications to the construction industry may have been severe.  Coverage for a wide range of construction defects and other mistakes would have effectively disappeared under Texas law.  Many contractors would have faced the concern of potential uninsured liability resulting from the contract work.  And many consumers would have been left without realistic compensation for construction mistakes.

Fortunately, the Court correctly answered “no.”

To read the full alert, click here.

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