LexisNexis Practice Guide: New Jersey Construction Litigation

A COMPLETE SYNOPSIS FOR EACH CHAPTER APPEARS AT THE BEGINNING OF THE CHAPTER

 CHAPTER 1 ANATOMY OF A CONSTRUCTION CONTRACT: PARTIES, CLAUSES & ISSUES

 PART I: STRATEGY
 § 1.01 Scope
 § 1.02 Objective & Strategy
 PART II: KEY PARTICIPANTS
 § 1.03 Construction Project Participants
 § 1.04 Duties of the Project Owner
 § 1.05 Duties of the Design Professional
 § 1.06 Duties of the General Contractor
 § 1.07 Duties of Subcontractors
 § 1.08 Duties of Construction Managers
 PART III: CONSTRUCTION CONTRACTS
 § 1.09 Classification of Construction Contracts
 § 1.10 Contracts Classified According to the Contractor’s Compensation
 § 1.11 Contracts Classified According to the Construction Delivery Method
 § 1.12 Sources for Construction Contract Forms
 PART IV: CONSTRUCTION CONTRACT PROVISIONS
 § 1.13 Introduction
 § 1.14 Scope of Work
 § 1.15 Force Majeure
 § 1.16 Indemnification
 § 1.17 Insurance
 § 1.18 Bonds
 § 1.19 Delays
 § 1.20 Differing Site Conditions
 § 1.21 Change Orders
 § 1.22 Alternative Dispute Resolution (ADR) 
 § 1.23 Liquidated Damages
 PART V: ARCHITECTS
 § 1.24 The American Institute of Architects (AIA)
 § 1.25 Regulation of the Practice of Architecture
 § 1.26 An Architect’s Standard of Care
 § 1.27 Competency
 § 1.28 Overlap of Services Provided by Architects and Engineers
 § 1.29 Source of the Architect’s Duties
 § 1.30 Design Work and Implied Warranties
 § 1.31 Malpractice or Professional Negligence
 § 1.32 Expert Witnesses
 § 1.33 Discrimination
 § 1.34 An Architect’s Reliance on a Survey
 § 1.35 Architect’s Certificates
 § 1.36 The Architect’s Duty as an Arbiter or Arbitrator
 § 1.37 Privity Doctrine
 § 1.38 Hold Harmless Provisions
 § 1.39 Economic Loss Doctrine
 § 1.40 Consumer Fraud Act
 PART VI: ENGINEERS
 § 1.41 Regulation of the Practice of Engineering
 § 1.42 Source of an Engineer’s Duties
 § 1.43 Professional Organizations

 CHAPTER 2 CONSTRUCTION AND DESIGN CONTRACTS

 PART I: STRATEGY
 § 2.01 Scope
 § 2.02 Objective and Strategy
 PART II: GENERAL PRINCIPLES
 § 2.03 Design-Build Projects
 § 2.04 Bidding on Private Contracts versus Public Contracts
 § 2.05 The Practice of Public Bidding
 § 2.06 Local Public Contracts Law (LPCL) 
 § 2.07 Negotiated Professional Services Contracts under the LPCL
 § 2.08 Public School Contracts Law
 § 2.09 New Jersey Contractual Liability Act
 § 2.10 Bidding Rules
 § 2.11 Rejection of Bids
 § 2.12 Post-Bid Conduct
 § 2.13 Negotiated Contracts
 § 2.14 Challenging a Bid Specification
 § 2.15 Challenging the Awarding of a Public Contract
 § 2.16 Bid Protest Hearings
 § 2.17 Responsible Bidders
 § 2.18 Responsive Bids
 § 2.19 Waiver of Irregularities in Bids
 § 2.20 Labor Agreements
 § 2.21 Anti-Bid Shopping Law of the LPCL
 § 2.22 Doctrine of Patent Ambiguity
 § 2.23 Unbalanced Bids
 § 2.24 Financial Qualifications of Bidders
 § 2.25 Prohibited Indemnification Agreements
 § 2.26 Political Campaign Contributions
 § 2.27 Retaliatory Discrimination in Bidding
 § 2.28 Selected State Agencies and Statutory Public Contract Law
 PART III: CONTRACT CLAUSES
 § 2.29 Pay-When-Paid and Pay-If-Paid Clauses
 § 2.30 Owner-Controlled Insurance Programs or Wrap-Up Insurance Programs
 § 2.31 Equitable Adjustment Clauses
 § 2.32 Exculpatory and Force Majeure Provisions
 § 2.33 No Damages for Delay Clauses
 § 2.34 Termination for Convenience Clauses
 PART IV: CLAIMS
 § 2.35 Differing Site Condition Claims
 § 2.36 Acceleration Claims
 PART V: REMEDIES AND DAMAGES
 § 2.37 Alternative Dispute Resolution under the LPCL
 § 2.38 Actions in Lieu of Prerogative Writs
 § 2.39 Contract Claims Against the State Require a Bench Trail
 § 2.40 Stays and Injunctions
 § 2.41 Reformation
 § 2.42 Liquidated Damages
 § 2.43 Interest on Judgments

 CHAPTER 3 BRINGING CONSTRUCTION CLAIMS

 PART I: STRATEGY
 § 3.01 Scope
 § 3.02 Objective and Strategy
 PART II: PRE-SUIT DISCOVERY AND PRESERVATION OF EVIDENCE
 § 3.03 Pre-Suit Discovery
 § 3.04 Attorney-Client Privilege and the Work Product Doctrine
 § 3.05 Preservation of Evidence
 § 3.06 Spoliation of Evidence (Flavors) 
 PART III: IDENTIFYING PARTIES
 § 3.07 Client Interview
 § 3.08 Public Entity and Sovereign Immunity
 PART IV: JURISDICTION, FORUM, AND VENUE
 § 3.09 Jurisdiction: Federal vs. State Court
 § 3.10 Forum
 § 3.11 Venue
 PART V: COMPLAINT CONSIDERATIONS AND CAUSES OF ACTION
 § 3.12 Complaint Considerations
 § 3.13 Causes of Action
 PART VI: DISCOVERY PLANNING
 § 3.14 Develop a Discovery Plan
 PART VII: USE OF EXPERTS
 § 3.15 Determining if Expert Testimony is Admissible or Necessary
 § 3.16 Strategies, Timing, and Methods for Obtaining Expert Discovery
 § 3.17 Non-Testifying Experts

 CHAPTER 4 DEFENSE OF CONSTRUCTION CLAIMS

 PART I: STRATEGY
 § 4.01 Scope
 § 4.02 Objective and Strategy
 PART II: TYPES OF DEFENSES
 § 4.03 Categorization of Defenses
 § 4.04 Affidavit of Merit
 PART III: AFFIRMATIVE DEFENSES
 § 4.05 Distinguishing Affirmative Defenses from Other Defenses
 § 4.06 Accord and Satisfaction
 § 4.07 Arbitration and Award
 § 4.08 Contributory Negligence
 § 4.09 Discharge in Bankruptcy
 § 4.10 Duress
 § 4.11 Estoppel
 § 4.12 Failure of Consideration
 § 4.13 Fraud
 § 4.14 Illegality
 § 4.15 Injury by Fellow Servant
 § 4.16 Laches
 § 4.17 License
 § 4.18 Payment
 § 4.19 Release
 § 4.20 Res Judicata or Claim Preclusion
 § 4.21 Statute of Frauds
 § 4.22 Statute of Limitations
 § 4.23 Waiver
 § 4.24 Failure to State a Claim upon which Relief Can Be Granted
 § 4.25 Statute of Repose
 § 4.26 Entire Controversy Doctrine
 § 4.27 Impossibility of Performance and Frustration of Purpose
 § 4.28 Consent
 PART IV: CONTRACTUAL DEFENSES
 § 4.29 Contract Notice Obligations
 § 4.30 Exculpatory Clauses
 § 4.31 Flow-Through or Pass-Through Indemnification Provisions
 § 4.32 Force Majeure Clauses
 § 4.33 Integration or Merger Clauses
 § 4.34 No-Damages-for-Delay Clauses
 § 4.35 Pay-When-Paid and Pay-If-Paid Clauses
 § 4.36 Termination for Convenience Clauses
 § 4.37 Warranties
 PART V: OTHER DEFENSES
 § 4.38 Jurisdictional Defenses under N.J. Ct. Rule 4:6-2
 § 4.39 Procedural Defenses under N.J. Ct. Rule 4:6-2
 § 4.40 Economic Loss Rule
 § 4.41 The Spearin Doctrine
 PART VI: MINIMIZING DAMAGES
 § 4.42 Allocating Damages among Joint Tortfeasors
 § 4.43 Economic Waste Doctrine
 § 4.44 Liquidated Damages Clauses
 § 4.45 Mitigation of Damages
 PART VII: RISK-SHIFTING
 § 4.46 Insurance Provisions
 § 4.47 Indemnity Provisions
 § 4.48 Contractual Shifting of Risk

 CHAPTER 5 AFFIDAVITS OF MERIT IN CONSTRUCTION LITIGATION

 PART I: STRATEGY
 § 5.02 Objective and Strategy
 PART II: WHEN IS AN AFFIDAVIT OF MERIT REQUIRED
 § 5.03 CHECKLIST: Analyzing Whether an Affidavit of Merit Is Required
 § 5.05 Dire Consequences for Failing to Comply
 § 5.06 Purview of the Affidavit of Merit Statute
 § 5.07 Licensed Persons Covered by the Statute
 § 5.08 The Action Must Concern the Defendant’s Professional Conduct
 § 5.09 Nature of the Plaintiff’s Injury
 § 5.10 Intentional Torts
 § 5.11 Willful and Wanton Conduct
 § 5.12 Vicarious Liability and Respondeat Superior
 PART III: COMPLYING WITH THE AFFIDAVIT OF MERIT STATUTE
 § 5.13 Contents of an Affidavit of Merit
 § 5.14 Notarization or Certification of the Affidavit of Merit
 § 5.15 Each Malpractice Defendant Must Receive an Affidavit of Merit
 § 5.16 Pre-Suit Depositions to Comply with the Statute
 § 5.17 Requirements to be an Affiant
 § 5.18 The “Like-Licensed” Requirement for an Affiant
 § 5.19 A Sworn Statement in Lieu of the Affidavit Is Permitted in Limited Circumstances
 § 5.20 Filing Deadline
 § 5.21 Request for an Extension of Time
 § 5.22 The Affidavit Should Identify the Defendant
 § 5.23 Ferreira Conference Seeks to Avoid Dismissal of Meritorious Claims
 § 5.24 Failing to Hold Ferreira Conference Does Not Toll Filing Deadline
 PART IV: EXCEPTIONS TO THE AFFIDAVIT OF MERIT STATUTE
 § 5.25 Four General Exceptions to the Statute
 § 5.26 Common Knowledge Exception
 § 5.27 Doctrine of Substantial Compliance
 § 5.28 Extraordinary Circumstance
 § 5.29 Equitable Estoppel
 § 5.30 Laches
 PART V: APPLICATION OF THE STATUTE TO PLEADINGS OTHER THAN COMPLAINTS
 § 5.31 Amended Complaints
 § 5.32 Counterclaims
 § 5.33 Cross-Claims by Co-Defendants
 § 5.34 Third-Party Complaints
 PART VI: OTHER MATTERS AND CONCERNS
 § 5.35 Protective Language in the Affidavit
 § 5.36 Using the Statute as a Defense
 § 5.37 Sanctions for Frivolous Litigation
 PART VII: SPECIAL RISKS IN CONSTRUCTION LITIGATION
 § 5.38 Risks Posed by Condominium Conversions
 § 5.39 When a Design Professional Acts as a Construction Manager
 PART VIII: FORMS AND OTHER INFORMATION
 § 5.40 Forms

 CHAPTER 6 TIMELINESS OF PERFORMANCE

 PART I: STRATEGY
 § 6.01 Scope
 § 6.02 Objective and Strategy
 PART II: CHANGE ORDERS
 § 6.03 Change Orders Amend the Construction Contract
 § 6.04 Change Orders Authorize Extra Work Not Covered by the Contract
 § 6.05 AIA Form A201 Article 7: Changes in the Work
 § 6.06 Unilateral versus Bilateral Change Orders
 § 6.07 Types of Change Orders Based on Payment
 § 6.08 Equitable Adjustment Clauses
 § 6.09 Consideration of Federal Contracting Law by New Jersey Courts
 § 6.10 Cardinal Change Doctrine
 § 6.11 Constructive Change Doctrine
 § 6.12 Impracticality of Performance
 § 6.13 Differing Site Conditions Clauses and Delay Damages
 § 6.14 Consumer Fraud Act, Home Improvement Contracts and Change Orders
 § 6.15 Checklist for Change Orders
 PART III: LIQUIDATED DAMAGES FOR UNTIMELY COMPLETION
 § 6.16 Liquidated Damage Clauses
 § 6.17 Commencement Date and Completion Date
 PART IV: NO-DAMAGES FOR DELAY PROVISIONS
 § 6.18 No-Damages for Delay Clauses Are Valid
 § 6.19 Notice Provisions
 § 6.20 The Spearin Doctrine and Delay Damages
 § 6.21 No-Damages for Delay Provisions in New Jersey Public Contracts
 § 6.22 No-Damages for Delay Provisions in Public Schools Contracts Law
 § 6.23 No-Damages for Delay Provisions in Local Public Contracts Law
 PART V: PROJECT DELAY CONCEPTS
 § 6.24 General Rule Regarding Risk of Delay
 § 6.25 Excusable Delays and Inexcusable Delays
 § 6.26 Concurrent Delays
 § 6.27 Compensable Delays
 § 6.28 AIA Document A201 Article 8: Time
 § 6.29 Acceleration Claims
 PART VI: TIMELINESS OF PAYMENT
 § 6.30 New Jersey Prompt Payment Act
 § 6.31 Federal Prompt Payment Act
 § 6.32 Pay-If-Paid versus Pay-When-Paid Clauses
 PART VII: CONSTRUCTION SCHEDULING AS EVIDENCE
 § 6.33 Importance of Construction Scheduling
 § 6.34 Common Methods of Construction Scheduling
 § 6.35 Using Scheduling in Retrospect as Evidence
 § 6.36 Forensic Schedule Analysis
 § 6.37 Checklist for Addressing Claims Concerning Timeliness and Scheduling

 CHAPTER 7 CONSTRUCTION INSURANCE AND INDEMNITY
 PART I: STRATEGY
 § 7.01 Scope
 § 7.02 Objective and Strategy
 PART II: PRACTICAL GUIDANCE
 § 7.03 CHECKLIST: Understanding Construction Litigation Insurance
 § 7.04 Defining “Occurrence” in Construction Insurance
 § 7.05 Identifying Insurer’s Duties in the Event of Third-Party Claim
 § 7.06 Defending Claims Uncovered by Construction Insurance
 § 7.07 CHECKLIST: Understanding Construction Litigation Indemnity
 § 7.08 Understanding Common-Law Indemnity
 § 7.09 Understanding Contractual Indemnity

 CHAPTER 8 INJURIES TO WORKERS

 PART I: STRATEGY
 § 8.01 Scope
 § 8.02 Objective and Strategy
 PART II: UNDERSTANDING WORKERS COMPENSATION AND DIRECT ACTIONS
 § 8.03 Overview of the New Jersey Workers Compensation Act
 § 8.04 Direct Actions
 § 8.05 Statutory Liability under Section 79 of the New Jersey Workers Compensation Act
 § 8.06 Special Employees and Fellow Servants
 § 8.07 Occupational Disease Claims and Third Party Liability
 § 8.08 Form for Laidlow Complaint
 § 8.09 Form for Laidlow Answer
 § 8.10 Form Demand for Indemnification
 § 8.11 Form Third Party Complaint for Indemnification

 CHAPTER 9 DAMAGES AND REMEDIES

 PART I: STRATEGY
 § 9.01 Scope
 § 9.02 Objectives and Strategy
 § 9.03 CHECKLIST: Preliminary Considerations for Determining Damages
 and Remedies in Construction Litigation
 PART II: UNDERSTANDING BREACH OF CONTRACT AND RELATED
 DAMAGES AND REMEDIES
 § 9.04 Breach of Contract Issues
 § 9.05 Damage Remedies Provided by Contract
 Part III: UNDERSTANDING BREACH OF CONTRACT AND RELATED DAMAGES AND REMEDIES
 § 9.06 Alternative Equitable Remedies
 § 9.07 Tort Theories of Recovery

 CHAPTER 10 MEDIATION AND ARBITRATION

 PART I: STRATEGY
 § 10.01 Scope
 § 10.02 Objective and Strategy
 PART II: UNDERSTANDING MEDIATION AND ARBITRATION GENERALLY
 § 10.03 CHECKLIST: Understanding Components of Complementary Dispute Resolution Programs
 § 10.04 Understanding Purpose and Goal of Complementary Dispute Resolution (CDR) 
 § 10.05 Understanding Features of Adjudicative Processes of Arbitration, Settlement Proceedings, and Summary Jury Trial
 § 10.06 Understanding Components of Evaluative Processes of Early Neutral Evaluation (ENE) and Neutral Fact Finding
 § 10.07 Understanding Mediation as Facilitative Process
 § 10.08 Understanding Components of Hybrid Processes Such as Mediation-Arbitration and Mini-Trial
 § 10.09 Determining Whether Other CDR Programs Apply
 PART III: ENGAGING IN MEDIATION
 § 10.10 CHECKLIST: Complying with General Requirements for Mediation
 § 10.11 Determining Whether Case Will Be Referred to Mediation
 § 10.12 Paying Mediator’s Fee
 § 10.13 Respecting Confidentiality in Mediation
 § 10.14 Complying with General Requirements for Conduct of Mediation Proceeding
 § 10.15 CHECKLIST: Complying with Mediation Requirements
 § 10.16 Complying With Mediation Requirements for Civil Matters
 § 10.17 Complying with Small Claims Mediation
 § 10.18 Determining when Relaxation of Court Rules and Program Guidelines Is Applicable
 § 10.19 Obtaining Approval of Non-Court Administered Dispute Resolution
 § 10.20 CHECKLIST: Conducting Mediation
 § 10.21 Identifying Whether Case Will Benefit from Mediation; Opting Out
 § 10.22 Reviewing Mediation Process with Client; Identifying Interests and Objectives
 § 10.23 Selecting Mediator and Gauging Whether Other Side Is Committed to Process
 § 10.24 Identifying What Pre-Mediation Discovery Will Assist Both Parties at Mediation
 § 10.25 Preparing Position Statement, Breakdown of Likely Outcome, and Risk-benefit Analysis for Both Sides
 § 10.26 Preparing Client and Discussing Alternatives
 § 10.27 Giving Process Time to Work While Maintaining Control of Process
 § 10.28 Ensuring that Binding Settlement Agreement Is Signed at Mediation
 PART IV: ENGAGING IN MANDATORY OR VOLUNTARY COURT-SPONSORED ARBITRATION
 § 10.29 CHECKLIST: Engaging in Mandatory or Voluntary Court-Sponsored Arbitration
 § 10.30 Determining Applicability of Court-Sponsored Arbitration
 § 10.31 CHECKLIST: Removing Case from Mandatory Arbitration
 § 10.32 Removing Case from Mandatory Arbitration
 § 10.33 CHECKLIST: Scheduling and Adjourning Arbitration Hearing
 § 10.34 Determining when Arbitration Will Be Scheduled and Seeking Adjournment
 § 10.35 CHECKLIST: Complying with Hearing Requirements
 § 10.36 Preparing for and Participating in Arbitration Hearing
 § 10.37 CHECKLIST: Accepting or Rejecting Arbitration Award
 § 10.38 Taking Action After Arbitration Award Is Issued
 PART V: CONDUCTING CONSTRUCTION LIEN ARBITRATION
 § 10.39 CHECKLIST: Conduction Construction Lien Arbitration
 § 10.40 Understanding Construction Lien Law Generally
 § 10.41 Complying with Residential CLL NUB and Arbitration Requirements
 § 10.42 Conducting Residential Construction Lien Arbitration
 § 10.43 Filing Lien or Instituting Summary Action Following Arbitration
 PART VI: CONDUCTING PRIVATE ARBITRATION
 § 10.44 CHECKLIST: Conducting Private Arbitration
 § 10.45 Participating in Private Arbitration
 INDEX