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When Damages Aren’t Enough Alternative Remedies in Construction Cases

When Damages Aren’t Enough Alternative Remedies in Construction Cases. American Bar Association Forum on the Construction Industry 2013 Mid Winter Meeting. William G. Geisen Stites & Harbison , PLLC Denise Morris Hammond Wright, Fulford , Moorhead & Brown, P.A. Michael S. McNamara

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When Damages Aren’t Enough Alternative Remedies in Construction Cases

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  1. When Damages Aren’t Enough Alternative Remedies in Construction Cases American Bar Association Forum on the Construction Industry 2013 Mid Winter Meeting William G. Geisen Stites & Harbison, PLLC Denise Morris Hammond Wright, Fulford, Moorhead & Brown, P.A. Michael S. McNamara Pillsbury Winthrop Shaw Pittman, LLP

  2. Scenario #1

  3. . . . and the guilty

  4. David makes a deal with Goliath.

  5. Teaming AgreementThe bad news • “This Agreement does not create a partnership, joint venture or similar relationship between the parties.” • “[Goliath] may terminate this Agreement in whole or in part for its convenience with 90 days notice.” • “This Agreement is non-exclusive, and [Goliath] does not make any commitment for or guarantee any minimum or maximum amount of Purchase by [Goliath].”

  6. Teaming AgreementMore bad news – maybe “. . . neither party is liable to the other for (1) consequential, incidental, indirect, punitive or special damages, including commercial loss and lost profits . . .” Neither party is liable to the other for direct damages in excess of $1 million.

  7. Teaming AgreementMore bad news – but look again Except for each party’s breach of any requirements regarding Confidential Information . . . neither party is liable to the other for consequential, incidental, indirect, punitive or special damages . . .

  8. Teaming AgreementThe good news • “Confidential Information means all information shared by either party during the term of this Agreement.” • Each party will use Confidential Information only to exercise its rights and perform its obligations under this Agreement. • “[David] hereby grants [Goliath] a license to resell and distribute the Purchases”

  9. Scenario #2

  10. Superfund Site

  11. Pond Discharge

  12. Pipe Discharge

  13. Soils Remediation

  14. Clean(er) Pond

  15. What now?

  16. Superfund Project Timeline 1996- Industrial plant named Superfund Site.

  17. Superfund Project Timeline 1996- Industrial plant named Superfund Site. 1998- Consent Decree.

  18. Superfund Project Timeline 1996- Industrial plant named Superfund Site. 1998 - Consent Decree. 1999- Remediation Trust Fund Established. 2000 - Soils Remediation Completed.

  19. Superfund Project Timeline 1996- Industrial plant named Superfund Site. 1998 - Consent Decree. 1999 - Remediation Trust Fund Established. 2000 - Soils Remediation Completed. 2001- Superfund Site Leased to Third Party.

  20. Superfund Project Timeline 2002- New Industrial Operator on Site.

  21. Superfund Project Timeline 2002 - New Industrial Operator on Site. 2004 - Environmental Contractor hired to remediate groundwater and surface water.

  22. Superfund Project Timeline 2002 - New Industrial Operator on Site. 2004 - Environmental Contractor hired to remediate groundwater and surface water. 2006 - Additional contaminated discharges from site operations discovered.

  23. Scenario #3

  24. Same engineerSame contractorNew design The Proposed Fix

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