LexisNexis Practice Guide: New Jersey Construction Litigation

LexisNexis Practice Guide: New Jersey Construction Litigation is designed for busy practitioners who are in need of guidance in handling construction litigation cases in New Jersey.
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2019 Edition
ISBN: 9781522183136
Estimated: November 27, 2019
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2019 Edition
ISBN: 9781522183143
Estimated: November 21, 2019
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LexisNexis Practice Guide New Jersey Construction Litigation is designed for busy practitioners who are in need of guidance in handling construction litigation cases in New Jersey.

Reviewed and edited by Mark R. Vespole and Christopher H. Westrick, two highly experienced, New Jersey construction law attorneys, the guide focuses on key issues that arise on the plaintiff’s side, as well as those that are encountered by the defense. The guide also covers commonly litigated construction issues, such as construction and design contracts, affidavits of merit, timeliness of performance, insurance and indemnity, workers’ injuries, damages, and alternative dispute resolution. Practice tips and forms are also included.

The guide provides a chapter-by-chapter analysis of major substantive and procedural issues that arise in construction litigation cases. This allows for a quick grasp of the major issues to be considered when determining whether to take on a construction law case. The guide also has a chapter that is devoted to construction law damages, which are often at the center of many construction disputes.

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Table of Contents

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