When damages aren t enough alternative remedies in construction cases
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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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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

Pillsbury Winthrop Shaw Pittman, LLP


Scenario 1

Scenario #1


When damages aren t enough alternative remedies in construction cases

  • . . . and the guilty


David makes a deal with goliath

David makes a deal with Goliath.


Teaming agreement the bad news

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].”


Teaming agreement more bad news maybe

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.


Teaming agreement more bad news but look again

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 . . .


Teaming agreement the good news

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”


Scenario 2

Scenario #2


Superfund site

Superfund Site


Pond discharge

Pond Discharge


Pipe discharge

Pipe Discharge


Soils remediation

Soils Remediation


Clean er pond

Clean(er) Pond


What now

What now?


Superfund project timeline

Superfund Project Timeline

1996- Industrial plant named Superfund Site.


Superfund project timeline1

Superfund Project Timeline

1996- Industrial plant named Superfund Site.

1998- Consent Decree.


Superfund project timeline2

Superfund Project Timeline

1996- Industrial plant named Superfund Site.

1998 - Consent Decree.

1999- Remediation Trust Fund Established.

2000 - Soils Remediation Completed.


Superfund project timeline3

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.


Superfund project timeline4

Superfund Project Timeline

2002- New Industrial Operator on Site.


Superfund project timeline5

Superfund Project Timeline

2002 - New Industrial Operator on Site.

2004 - Environmental Contractor hired to

remediate groundwater and surface water.


Superfund project timeline6

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.


Scenario 3

Scenario #3


Same engineer same contractor new design

Same engineerSame contractorNew design

The Proposed Fix


Pros eliminate 50 million exposure live to see another day

Pros: Eliminate $50 million ExposureLive to see another day

Pros and Cons of New Design


When damages aren t enough alternative remedies in construction cases

  • Cons of New Design from same Engineer


Scenario 4

Scenario #4


Break

Break….


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