Coloradorsquos New Anti-Indemnity Statute MereSplash or Next Wave

Coloradorsquos New Anti-Indemnity Statute1

Forum NominatingCommittee1

Message fromthe Chair-Elect2

Downstream Allocationof Concurrent DelayDamages 5

Editorrsquos Message6

Forum Gives Back toIndustry7

The Construction LawyerSeeks a New AssociateEditor7

By Terry J GalganskyThe Weitz Company LLC

Another state has acted decisively toeliminate certain contractual risk transfersthat have been available to most partiesinvolved in the statersquos construction industryndash namely indemnity and additional insuredstatus This time itrsquos Colorado Itslegislation makes no mistake aboutColoradorsquos path forward It is unambiguousIt is all about public safety It happened inApril 2007 when Coloradorsquos governor BillRitter signed into law Senate Bill 07-087which became Colorado Rev Stat sect 12-21-1115 (6) (Statute)[1] This Statute affectsnearly all construction agreements involvingreal property in Colorado that are executedon or after July 1 2007

Before addressing this Statute in greaterdetail it is relevant to discuss the backdropand recent trends of existing anti-indemnitystatutes throughout the United States As ofthis writing forty-four states have enactedsome kind of anti-indemnity statute[2] Butin the last five years there have been somesignificant signs of constriction in the breathof any construction-related indemnity orinsurance to effectuate broad contractualrisk transfer Such examples includeCaliforniarsquos 2006 addition of Civil Code sect27828[3] Kansas and Kentuckyrsquos eliminationof any indemnity for sole or partial fault ofthe indemnitee in 2004 and 2005respectively[4] and most relevant for thisdiscussion Montana New Mexico andOregonrsquos recognition that neither anindemnity nor additional insured coveragewill be allowed to protect another from itsown actions via legislation in 2003 for the

UNDER CONSTRUCTIONT h e n e w s l e t t e r o f t h e A B A F o r u m o n t h e C o n s t r u c t I o n I n d u s t r y

December 2007

Appointment of theNominating Committee

The following people have beenappointed to serve on the NominatingCommittee and to select and submit tothe membership the nominees for thepositions of Chair-Elect and fourGoverning Committee Members at Large

CHAIRRobert J MacPhersonThelen Reid Brown Raysman amp Steiner LLP900 Third AvenueNew York New York 10022

MEMBERSDeborah S Ballati D Robert BeaumontC Allen Gibson Anne GorhamLarry D Harris Danny G Shaw

Nominations for Chair-Elect andGoverning Committee Members-at-Largeshould be sent to the Chair of theCommittee Robbie MacPherson byJanuary 12 2008 The election will beheld during the business meeting of theForumrsquos Annual Meeting in April 2008Nominations may be made by thirdpersons and by self-nomination Allnominations or expressions of interest inbeing considered as a nominee should

Continued on Page 6

first two states and statutory confirmationvia case law by an opinion issued by theOregon Supreme Court in 2005[5]

Continued on Page 4

introduce them to the various rolesindividuals and companies play inconstruction process In addition toproject team meetings there are teamactivities such as job site visits andcollege nights where educationalopportunities are explored Theprogram concludes with a presentationnight where each team presents itsproject to the other teams theirfamilies teachers and mentors

ACE was started in New York City in1994 and now has a presence in overeighty cities Since its start morethan 30000 students many from lowincome families have been mentoredin the program At an ACE event Iattended this spring several studentswho had started in the program whilein high school were introduced as thenewest mentors They had graduatedwith degrees in architectureconstruction management orengineering started their careers inthe industry and were as one saidready to give back to a program thathad given them their start

Education has always been at the coreof the Forumrsquos mission A recentprogram and several planned in thefuture will examine what could proveto be major changes in the way theconstruction industry operates OnOctober 16 the Forum held what Ibelieve to be first program exploringthe recently released ConsensusDOCSOver 150 people participated in ateleconference that examined theconcepts that went into thedevelopment of documents proponentsclaim have the potential to replace theAIA documents as the industry standardAt our Fall meeting to be held at theFairmont Hotel in Chicago onSeptember 11 and 12 2008 we willreview the ConsensusDOCS in detailAttorneys and industry representativeswho were involved in the development

Continued on Page 3

Vol 10 No 1 ndash December 2007

Newsletter EditorJeffrey R Cruz

383 Madison AvenueNew York NY 10179

212-272-5509jcruz3bearcom

Associate EditorMorgan Holcomb

229 Nineteenth Avenue SouthMinneapolis MN 55455

612-625-3533holc0026umnedu

2007-2008OFFICERS AND GOVERNING COMMITTEE

CHAIRMichael D Tarullo

614-462-2304mtarulloszdcom

CHAIR-ELECTRobert J MacPherson

212-895-2113rmacphersonthelencom

IMMEDIATE PAST CHAIRTy D Laurie312-368-2140

tylauriedlapipercom

GOVERNING COMMITTEE MEMBERSL Frank Elmore864-255-9500

frankelmoreelmorewallcom

Anne E Gorham859-226-2308

agorhamstitescom

L Tyrone Holt303-225-8500

tyholtholtllccom

Anthony L Meagher410-580-4214

anthonymeagherdlapipercom

Jennifer D Nielsen630-575-0020

jnielsenlymannielsencom

Patrick OrsquoConnor612-766-7413

poconnorfaegrecom

Carina Y Ohara713-235-4889

cyoharabechtelcom

A Elizabeth Patrick404-437-6731

lpatrickpatricklawgroupcom

James S Schenck IV919-789-9242

jschenckcgspllccom

John I Spangler III404-881-7146

jspangleralstoncom

Michael S Zetlin212-682-6800

mzetlinzdlawcom

Under Construction is published by the American Bar Association Forum onthe Construction Industry 321 N Clark Street Chicago IL 60610 Requestsfor permission to reprint and manuscripts submitted for consideration shouldbe sent to the attention of the Editor Jeffrey R Cruz Address correctionsshould be sent to the ABA Service Center at the address above

The opinions expressed in the articles presented in Under Construction arethose of the authors and shall not be construed to represent the policies ofthe American Bar Association or the Forum on the Construction IndustryCopyright copy 2007 American Bar Association

Cold BeerAmmoLive Bait

Robbie MacPhersonChair-Elect

2

By Robert J MacPhersonThelen Reid Brown Raysman ampSteiner LLP

The cold beer was usually CarlingBlack Label Utica Club or GeneseeThe bait was usually worms I donrsquotthink I ever bought any ammo fromthe little store in North Creek NewYork with that sign out front (If I didthey were 22s to shoot the beer cansand bottles)

The Forum has a sign out front thatsays ldquoLawyers Serving theConstruction Industry ThroughEducation and Leadershiprdquo ndash not ascatchy as that sign in North Creekbut it does capture the essence ofthe Forum Leadership throughexample is the most effective kindEducators understand they must bewell educated before they can helpothers learn The Forum is doing agood job at both leading andeducating

The Forum took a big step along theLeadership road this year when itbecame a National Sponsor of theACE Mentor Program

ACE is a program that focuses on highschool students to increase theawareness of career opportunities inarchitecture construction andengineering through mentoring ACEalso provides scholarshipopportunities ACE is made up ofconstruction industry professionalseducators and others includinglawyers many of whom who serve asmentors Students and mentors aregrouped into teams and assigned amock project to build as a way to

CHAIRELECT

MESSAGE FROM THE

are helping ACE do at the high schoollevel

Finally some words of thanksfarewell and welcome Alana Sullivanthe Forumrsquos Manager responsible forcoordinating all of our activitiesincluding the Governing Committeethe Divisions and program logisticsfor the past five years has left theABA for a job in the private sectorAlana was an integral part of theForumrsquos success and we wish her allthe best And we welcome ShannonHarrity our new Manager Shannonhas been with the ABA for three yearsassisting several committees of theLabor and Employment Section withtheir programs and we very muchlook forward to working with her

PS North Creek is in the AdirondackMountains in upstate New York It isan incredibly beautiful part of thecountry and I heartily recommend youvisit it And donrsquot forget to pick upyour empties

well as the AIArsquos Digital RightsDocument We will hear about thelessons learned and those that shouldhave been but were not since 1997when the AIA documents were lastrevised Practical advice will be givenon how to apply those lessons innegotiations and litigation

Our regional program in November2008 will be based on THEConstruction Contracts Book whichwill be updated to address theConsensusDOCS and the new AIAdocuments

Many Forum members teachconstruction law and more and morelaw schools are adding constructionlaw to their curriculums To serve thatgrowing need the Forum will bepublishing a construction law textbook which should be available forclasses in 2008 or early 2009 Exposinglaw students to construction law willhelp us attract the talent we willneed to serve our clients and theindustry in the future something we

3 Under Construction

False Claims in Construction Contracts Federal State and LocalCharles M Sink and Krista L Pages Editors

This book examines what is often a bet-the-company area of construction law In the last two decades the federalgovernment and whistleblowers have prosecuted billions of dollars in claims brought under the False Claims Act with asubstantial number arising from construction projects There are many ways that construction projects can fall underthe False Claims Act including making one or more false payment applications or filing a false statement which is justpart of a request for compensation The civil penalties are severe statutory penalties plus treble the amount ofdamages sustained by the government because of the fraud

False Claims in Construction Contracts is an essential deskbook forcivil and criminal litigators as well as transactional counselors ofcontractors subcontractors suppliers designers project andconstruction managers and owners It provides a complete groundingin a complex area of federal and state law It begins with a brief historyand overview of the act focusing on the sweeping changes made in the1986 overhaul A subsequent chapter details the issues involved in a privatecitizen bringing a qui tam action under the False Claims Act The balance ofFalse Claims in Construction Contracts focuses on all aspects ofconstruction-related claims under the FCA including discussion of thelandmark Daewoo case bid rigging and collusive bids damages andpenalties retaliation claims and criminal prosecution of FCA defendantsThe final chapter offers a state-by-state summary of state false claims liability

2008 354 pages 7 x 10 paperback ISBN 1-59031-925-3Regular Price $17995Forum on the Construction Industry Member Price $14995Government Price $13900 (Available by calling the ABA Service Center at 1-800-285-2221)Product Code 5570211

Cold Beer Ammo LiveBaitContinued from Page 2

of the documents and those who willbe studying and using them over thenext year will road test theConsensusDOCS and give us theirreviews The program will also featureforums in which the Forumrsquos Divisionswill look at these documents fromtheir own unique perspectives

In the more immediate future theForum will turn its attention to the2007 edition of the AIA documentsthe industry standard for at least theforeseeable future In a programbeing held twice the first time onJanuary 31 2008 in New York City andthen repeated on February 7 in SanAntonio Texas we will learn whatsignificant changes were made to theA201 General Conditions and why Thebrand new B101 OwnerArchitectAgreement will be also featured as

Coloradorsquos Anti-Indemnity StatuteContinued from Page 1

As reflected in these last threeexamples Colorado has adoptedsimilar restrictions with its StatuteExcept for certain exceptionsmentioned below the Statuteeliminates the enforceability of allbroad and intermediate indemnityprovisions and severely narrowsadditional insured coverage in Coloradoconstruction contracts Its enactmentknocks over the existing anti-indemnity statutory ldquoapple cartrdquo inColorado which had essentiallyrendered unenforceable only thoseprovisions in public constructioncontracts that indemnified publicentities for their negligence

As relevant as these prohibitions arethe several findings made by theColoradorsquos General Assembly that areset forth in the Statutersquos first sectionwhich clearly reflect the comparativenegligence cornerstone of Coloradorsquostort reform legislation that occurred in1986[6]

(I) It is in the best interests of thisstate and its citizens and consumers toensure that every construction businessin the state is financially responsibleunder the tort liability system forlosses that a business has caused

hellip

(III) Construction businesses in recentyears have begun to use contractprovisions to shift the financialresponsibility for their negligence toothers thereby circumventing theintent of tort law

(IV) It is the intent of the GeneralAssembly that the duty of a business tobe responsible for its own negligencebe nondelegable

hellip

(VII) If all businesses large and smallare responsible for their own actionsthen construction companies will beable to obtain adequate insurance

4 Under Construction

the quality of construction will beimproved and workplace safety willbe enhanced (Emphasis supplied)[7]

Following these findings the Statutesets forth the following constraints onevery Colorado ldquoconstructionagreementrdquo which is so broadlydefined to essentially include all futureconstruction between any constructionindustry participant in Colorado[8]except for its specific exclusions forcontracts that involve property ownedby railroads and various watersanitation or sewage districts or leasesincluding construction concerning suchrental properties[9]

Any provision that requires a person toldquoindemnify insure or defendrdquo anotherfor damages or injuries caused by thenegligence or fault of that party ldquoisvoid as against public policy andunenforceablerdquo[10]

Any provision to indemnify or insureanother will not be for ldquoany amountsgreater than that represented by thedegree or percentage of negligence orfault attributable to the indemnitor orthe indemnitorrsquos agentsrepresentatives subcontractors orsuppliersrdquo[11]

Any provision ldquothat requires thepurchase of additional insured coveragefor damage[s] hellip from any acts oromissions that are not caused by thenegligence or fault of the partyproviding such additional insuredcoverage is void as against publicpolicyrdquo[12]

Furthermore the Statute also preemptsany choice of law provision that anyparty may wish to draft in theseconstruction agreements maintainingthat this Statute will control in ldquoeveryconstruction agreement affectingimprovements to real property withinthe state of Coloradordquo[13] All in allColorado represents in the authorrsquosopinion a growing trend to eliminaterisk transfer by indemnity andadditional insured coverage This trendmay become more than a splashColorado may start the wave

[1] A good overview article on thisnew legislation is Brian G EberlersquosldquoSB 07-087 and the Enforceabilityof Indemnification Provisions inColorado Construction Contractsrdquo 36The Colorado Lawyer 59 (Sept 2007)(Eberlersquos Article)

[2] These states include AK AZ CACO CT DE FL GA HI ID IL IN KSKY LA MD MA MI MN MS MO MTNE NV NH NJ NM NY NC ND OHOK OR PA RI SC SD TN TX UTVA WA WV and WI

[3] In the fall 2006 AB 573 wassigned into law eliminating anypassive negligence protection to localpublic agencies (it specificallyexcludes the State of California) inprofessional services agreementsentered into on or after January 12007

[4] See Kansas Stat sect 16-121 andKentucky Rev Stat chap 371

[5] See Montana Rev Code sect 28-2-2111 NM Rev Stat sect 56-7-1 andOre Rev Stat sect 30140 and WalshConstruction Co v Mutual ofEnumclaw 104 P2d 1146 (Ore2005)

[6] Eberlersquos Article p59

[7] Col Rev St sect 13-21-1115 (6)(a)

[8] Col Rev St sect 13-21-1115(6)(e)(I)

[9] Col Rev St sect 13-21-1115(6)(e)(II)

[10] Col Rev St sect 13-21-1115(6)(b)

[11] Col Rev St sect 13-21-1115(6)(c)

[12] Col Rev St sect 13-21-1115(6)(d)

[13] Col Rev Stt sect 13-21-1115(6)(g)

compensable Where such conflictingcauses of delay exist the entitlementto time or money may be threatened

Concurrent delay also can occur whenboth parties are responsible fordelaying the same critical activityover the same time period or wheneach party delays a separate criticalactivity at the same time (wherethere were multiple interrelatedcritical path activities) Concurrentdelays have both a causal andtemporal component George SollittConstr Co v US 64 Fed Cl 229(Fed Cl 2005) Both delays must beindependent of one another Id seeBeauchamp Constr Co v US 14 CtCl 430 (1988) In other words thecontractorrsquos delay cannot be as aresult of or contingent upon theother partyrsquos delay or vice versa

Concurrency issues are most oftendiscussed in the context of the owner-general contractor relationship whenone delay is the responsibility of theowner and the other delay is borne bythe contractor However the analysisutilized in the owner-generalcontractor cases works at all levels ofvertical privity See eg WilliamsEnters Inc v Strait Mfg amp WeldingInc 728 FSupp 12 (DDC 1990)TuttleWhite Constructors Inc vMontgomery Elevator Co 385 So2d90 (Fla 1980) Travelers Indem Co vPeacock Constr Co 423 F2d 1153(5th Cir 1970) Alcan Electrical ampEngineering Co Inc v SamaritanHospital 109 Wash App 1072 2002WL 26291 (Wash App Div 3 2002)Pathman Constr Co v Hi-Way ElecCo 65 IllApp3d 480 382 NE2d 453(1978) As such the same frameworkapplied upstream should generallywork downstream through the chain ofprivity

Generally whenever concurrency isdemonstrated (ie when both partiescause a delay to the critical path atthe same time) the delays are said tobe concurrent and the courts will

5 Under Construction

Downstream Allocation of Concurrent Delay Damages

By Michael F Drewry and Daniel MDrewryDrewry Simmons Vornehm LLP

Can liquidated or other delaydamages attributable to concurrentdelay be allocated by the generalcontractor among responsiblesubcontractors If so what are theguidelines for doing so The shortanswer to the first question is yesCase law addressing concurrentdelays generally permits theallocation of delay damages to theresponsible party includingsubcontractors Howeverjurisdictions approach concurrentdelays and apportionment ofdamages related to these delaysdifferently thereby addingadditional layers of complexity to ananalysis that already containssubstantial inherent proof obstaclesThis article which is presented intwo parts provides a generalframework within which thedownstream allocation of concurrentdelay damages can be analyzed aswell as offering suggestions as to howthis analysis may be shaped throughthe contract documents

In this issue of Under Constructionwe define the problem and identifyrelevant issues in concurrent delayanalysis

Defining the Problem ndash ConcurrentDelay

Concurrent delays arise when two ormore independent delay events takeplace within the same time or delayperiod and affect both the owner andcontractor (or the contractor and itssubcontractors in a lower-tierrelationship) These delay eventscould all relate to one activity or tomultiple activities Concurrentdelays may affect a contractorrsquos orsubcontractorrsquos claim if one delayingevent is excusable and the other oneis not or if one such cause iscompensable and the other is non-

deny the claimants relief or attemptto apportion concurrent delaysbetween the parties See eg PCLConstr Serv Inc v US 53 Fed Cl479 (2002) Blinderman Constr Co vUS 695 F2d 552 (Fed Cir 1982)The burden of proof falls on theparty seeking to recoup damages fordelay to show that the claimed delaywas not concurrent Coath amp GossInc v US 101 CtCl 702 (1944) Ifconcurrent delay cannot bedisproved then the courts will notbe able to separate the delay andwill very likely not be able to awarddelay damages Consequently thedefinition and the appropriateanalysis of concurrent delay arecritical to a delay analysis

Apportioning the Delay

Courts generally have taken threeapproaches to analyzing claims whencontract performance is delayed dueto causes attributable to both theowner and contractor or contractorand subcontractor

First the traditional view has beenthat if the delays were inextricablyintertwined the owner wasprevented from assessing liquidateddamages against the contractorwhile the contractor because of hispartial responsibility was similarlynot entitled to seek damages SeeSollitt 64 Fed Cl229 AcmeProcess Equipment v US 171 Ct Cl324 347 F2d 509 (1965) revrsquod onother grounds 385 US 138 (1966)The same analysis would hold truefor contractors vis-a-vissubcontractors See eg Alcansupra 109 Wash App 1072 J AJones Constr Co v GreenbrierShopping Center 332 F Supp 1336(ND Ga 1971)

Second the modern approach is todetermine whether the delay can beapportioned between the parties Ifthe delay can be allocated among

Continued on Page 6

6 Under Construction

Downstream Allocationof Concurrent DelayDamagesContinued from Page 5

the parties the courts will allowproportional fault to govern recoveryakin to a comparative fault analysisSee eg Essex Electro Engineers Incv Danzig 224 F3d 1283 (Fed Cir2000) Tyger Constr Co Inc v US31 Fed Cl 177 (Fed Cl 1994) E CErnest Inc v Manhattan Constr Coof Texas 387 F Supp 1001 (SD Ala1974)

A third related way of looking atconcurrent delay utilizes a network orcritical path method (ldquoCPMrdquo) toidentify and determine critical pathdelays and the party responsible forthose delays Under this analysis thecourt segregates the delays along the

Nominating CommitteeContinued from Page 1

include a resume and a writtensubmission that details the nomineersquosactivities in the Forum the ABA andthe legal profession In addition theCommittee is interested to knowabout any initiatives or practices thatthe nominees are interested inproposing while serving in the positionsought

The Nominating Committee willconvene its first meeting inconjunction with the ForumrsquosMidwinter program which will occuron February 8 2008 Any questions orconcerns regarding the nominatingprocess can be answered by Robbiefeel free to contact him directly

The future of the Forum rests securelyon the strength of its membershipWe welcome those of you who wish tostand and serve to do just that byparticipating in this importantprocess

Michael D Tarullo Forum Chair

Editorrsquos MessageOne dictionary defines ldquoforumrdquo as

1 The public square or marketplaceof an ancient Roman city that was theassembly place for judicial activityand public business

2 A public meeting place for opendiscussion

3 A medium for open discussion orvoicing of ideas such as a newspapera radio or television program or awebsite

4 A public meeting or presentationinvolving a discussion usually amongexperts and often including audienceparticipation

To the ancient Romans the Forumwith a capital ldquoFrdquo meant thesprawling bustling marketplace nearthe Colosseum To constructionlawyers the Forum is our home withinthe ABA built atop the foundationstones of ldquoPrograms Publications andPeoplerdquo In future issues wersquoll bebringing you more news from theDivisions and reports of other activitywithin the Forum Drop me a line(jcruz3bearcom) or find me at aForum meeting if you have any ideasabout what you want to see in UnderConstruction Think of this as yourforum in the Forum

critical path and allocates the delayto the responsible party accordinglySee eg Fishbach and Moore IntrsquolCorp ASBCA 18146 77-1 BCA para12300affrsquod 223 CtCl 119 617 F2d 223(1980) Cases that reach conflictingresults are usually distinguishable bytheir inability to separate delaysbetween the parties

Define Concurrency The critical firststep in the analysis is to identify howyour jurisdiction defines concurrencyThe definition of concurrency will setout the measuring stick foridentifying concurrent delay events

The simplest definition ofconcurrency (stated above) is theoccurrence of two or moreindependent delay events within thesame time period or delay periodNevertheless concurrency has alsobeen defined in the context ofnetwork scheduling as a relationshipbetween activities that is neithersubsequent nor precedent Barry BBramble amp Michael T CallahanConstruction Delay Claims sect 101[D](3d ed 2000) This definition ofconcurrency means the start of workon one of the activities is notdependent on the completion ofanother This definition ofconcurrency does not necessarilyrequire that the activities beperformed simultaneouslyConcurrency can be chronological orsimultaneous Id

Identify the Operational Time FrameRegardless of the definition ofconcurrency utilized the commondenominator is multiple delay eventswithin a given time frame But whatis that operational time frame inwhich the delay events must occurTraditionally concurrent delays hadto occur simultaneously See egMorganti Nat Inc v US 49 Fed Cl110 (FedCl 2001) see also Brambleamp Callahan supra However thatrule has evolved and given way to abroader classification of the operabletime frame

Generally courts will not requirethat the time period for each delay

event be identical The delay eventsmay occur over different time periodsbut be related by circumstances orconditions See eg RaymondConstructors of Africa Ltd v US 411F2d 1227 (Ct Cl 1969) McDevitt ampStreet Co v Marriott Corp 713FSupp 906 (ED Va 1989) revrsquod onother grounds 948 F2d 1281 (4th Cir1991) A review of the cases addressingconcurrent delay shows that theoperational time frame in whichconcurrent delays occur could rangefrom several days to several weekswithin the context of the project

Continued on page 7

the entire concurrent delay to onesubcontractor making thesubcontractor liable for the entiredelay if that subcontractor is shownto be responsible for a substantialportion of the delay See egWilliams Enterprises 728 F Supp 12TuttleWhite Constructors 385 So2d 90 Ultimately theapportionment is an issue for thetrier of fact

While straight-forward in theory anyconcurrent delay analysis isextraordinarily fact-sensitive andoften inherently complex Provingor refuting concurrent delay requiresan accurate and updated network orCPM schedule Reliablecontemporaneous projectdocumentation is crucialApportionment of concurrent delaymay also require the construction ofa detailed as-built schedule a taskmost often performed by aconstruction claims expert

In the next issue we will explore thedefenses to apportionment and willsuggest ways to control outcomesthrough contract documents

7 Under Construction

Downstream Allocationof Concurrent DelayDamagesContinued from Page 6

In fact in its broadest sense theconcurrency period could extend tothe life of project performance

Determine the Criticality of theDelay Events An additionalcomponent of the analysis ofconcurrent delay is whether theseparate and independent delayevents are critical In manyjurisdictions the concurrent delaysmust also lie on the critical path orimpact the completion of the projectSee eg McDevitt 713 F Supp 906Williams Enterprs 728 F Supp 12EC Ernst 387 F Supp 1001 Insuch jurisdictions if twosimultaneous delays occur but one isnot on the critical path there is noconcurrent delay As such athorough review of the projectschedule is paramount

Segregate Delay Impacts and CostsTo flow concurrent delaysdownstream the next step requiresparsing project records to identifydiscrete acts of delay amongst thetrade contractors Once those delaysare identified determine whetherthe delay is non-excusable and if sodetermine whether there is acompensable delay If so damagesmust be identified and isolated byeach critical path delay by tradeHand-in-hand with this factualanalysis is the contractual one -identifying the particular terms ofthe applicable subcontracts thatpermit the flow-down of unexcuseddelay damages Finally theconcurrent delays are apportionedand flowed-down to the responsiblesubcontractor In doing so absolutecertainty regarding the exactapportionment of damages isgenerally not required See Alcan2002 WL 26291 see Pathman 382NE2d at 460 The generalcontractor may be able to allocate

The Forum Gives Backto the Industry

By John R Heisse IIThelen Reid Brown Raysman amp SteinerLLP

Last year the Governing Committeecommitted to making charitabledonations that would ldquomake adifferencerdquo in the communities whichthe Forumrsquos members serve The firstrecipient of a Forum grant is the ACEMentor Program Founded by theprincipals of leading design andconstruction firms ACErsquos mission istwofold to enlighten and motivatehigh school students toward careers inarchitecture construction andengineering (hence ldquoACErdquo) and toprovide mentoring opportunities forfuture designers and constructors ACEmakes a special effort to reachstudents who might not otherwisebecome aware of the challenges andrewards of a career in the buildingindustry By sponsoring ACE at thenational level the Forum is trulygiving back to the industry we serve

John Heisse is a past Forum Chair andthe Forumrsquos liaison with ACE

Save These Dates

January 31 2008 ndash The MidwinterMeeting at the Sheraton New York Hotelin New York NY Hotel Cut-Off January11 2008

February 7 2008 ndash A repeatperformance of the Forumrsquos MidwinterMeeting program at the Westin RiverwalkHotel in San Antonio TX Hotel Cut-OffJanuary 4 2008

April 24-25 2008 ndash The Annual Meetingat La Quinta Resort amp Spa in LaQuintaCA Hotel Cut-Off March 24 2008

September 11-12 2008 ndash The FallMeeting at the Fairmont in Chicago ILHotel Cut-Off August 18 2008

The Construction LawyerSeeks New Associate EditorOur sister publication in the Forum TheConstruction Lawyer is acceptingapplications for the position of AssociateEditor Interested persons should sendby January 18 2008 a resume and briefstatement of qualifications to the Chairof the Forum Publications Committee

Adrian L Bastianelli IIIPeckar Abramson Bastianelli amp Kelley

abastianellipecklawcomPhone (202) 293-8815Fax (202) 293-7994

Applications should include a list ofForum activities

The Forumrsquos Women and Minority Fellowship Committee is acceptingapplications for 2008 For more information visit the Forumrsquos websitewwwabanetorgforumsconstructiondocswomen_and_minority_fellowshippdf

Join Us in New York City and San Antonio TexasFor Our 2008 Mid Winter Meetings

WHAT In 2008 The Construction Forum will hold its Midwinter Program in two convenientlocations - New York NY or San Antonio TX The American Institute of Architects (AIA)has recently published its new suite of design and construction documents Thisconference will focus on two major agreements (1) The A201 General ConditionsDocument and (2) the B101 OwnerArchitect Agreement The AIA documents in manyrespects reflect an industry consensus with respect to a number of issues and practices Adetailed working knowledge of these agreements is critical to any construction practicewhether you prepare construction contracts or litigate claims You will learn not onlywhat is new but also its importance given what has not changed We have gatheredpractitioners that have extensive working knowledge of these agreements and a numberof individuals involved directly in the drafting process You will get an inside view of howthese documents were crafted

WHENWHERE January 31 2008 February 7 2008Sheraton NY Hotel amp Towers Westin Riverwalk811 Seventh Avenue 420 West Market StreetNew York New York 10019 San Antonio Texas 78205Reservations (212) 581-1000 Reservations (210) 224-6500

TELL ME MORE Please register for either conference by January 17 2008 to receive the discountedconference rate We look forward to seeing you in San Antonio and New York Theconference brochures are available at

wwwabanetorgforumsconstructionfeatured_programnewyork08pdf

wwwabanetorgforumsconstructionfeatured_programsanantonio08pdf

December 2007

First ClassUS Postage

PAIDAmerican Bar

Association

Lawyers ServingThe Construction IndustryThrough Education and Leadership

American Bar AssociationForum on the Construction Industry321 N Clark StreetChicago IL 60610

8 Under Construction

UNDERCONSTRUCTION

The newsletter of theABA Forum on the

Construction Industry