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List of Forms by Chapter - Chapter 1 — Responsibilities and Liabilities of Architects and Engineers for Construction Failures
- I. [1.1] Scope of Chapter
-
II. [1.2] The Role of the Architect/Engineer in the Construction Process - III. Theories of Liability
- IV. Defenses
- V. Claims
- Chapter 2 — Claims Against General Contractors
- I. [2.1] Scope of Chapter
- II. [2.2] Perspectives of Counsel
- III. [2.3] The Business of Contracting
- IV. The Obligations of the General Contractor
- V. Theories of Liability for Defective Construction Claims
- Actions Based in Contract
- Actions Based in Tort
- [2.15] Overview of the Economic-Loss Doctrine
- [2.16] Introduction to the Economic-Loss Doctrine
- [2.17] Economic-Loss Cases: Problems in Application
- [2.18] What Is Economic Loss?
- [2.19] Test for Whether a Claim Sounds in Tort or in Contract
- Exceptions to the Economic-Loss Doctrine
- [2.26] Strict Liability
- [2.27] Contribution and Comparative Fault
- Guarantees
- Defenses
- [2.30] Statute of Limitations
- [2.34] Presumption of Reasonable Care
- [2.35] Compliance with Specifications
- [2.36] Acceptance of the Project
- [2.37] Damage Limitations
- [2.38] Remedy Limitations
- [2.41] Exhaustion of Administrative Remedies
- [2.42] Indemnification
- Contractual Indemnity
- [2.47] Contractor Suits Against Design Professionals
- [2.48] Waiver of Implied Warranty of Habitability
- Measure of Damages
- Other Claims for Economic Loss
- Defenses to Implied-Warranty-of-Habitability Claims
- [2.58] Tort Indemnity
- [2.59] Contribution
- Chapter 3 — Subcontractor Claims
- Chapter 4 — Claims Against Sureties
- I. [4.1] Claims Against Sureties
- II. [4.2] Bonds — General
- III. Bid Bonds
- IV. Performance Bonds
- [4.6] In General
- [4.7] Integration with Construction Contract
- [4.8] Public Bonds
- [4.9] “Public Improvement” Defined
- [4.10] Effect of Public Owner’s Failure To Ensure Posting of Bonds
- [4.11] Standing To Assert Performance Bond Claims
- [4.12] Standing of Subcontractors and Suppliers
- [4.13] Standing of Co-Prime Contractors
- [4.14] Declaration of Default
- [4.15] Material Breach Required
- [4.16] Notice of Default Required
- [4.17] Statute of Limitations
- [4.18] Reduction of Limitations Period
- [4.19] Prepayment and Overpayment Defenses
- [4.20] Surety Performance Options
- [4.26] Damages Recoverable Under Performance Bonds
- [4.27] Delay Damages
- [4.28] Liability for Personal Injury
- [4.29] Prejudgment Interest
- [4.30] Attorneys’ Fees
- V. Payment Bonds
- VI. Surety Liability
- [4.38] Standing
- [4.39] Bond Act Limitations Periods
- [4.40] Notice Requirements Under the Bond Act
- [4.41] Amendment Eliminates 120-Day Cooling-Off Period
- [4.42] Copy of the Bond
- [4.43] Venue Under the Bond Act
- [4.44] Suit in Name of the Owner
- [4.45] Acceptance of the Work for Limitations Purposes No Longer Relevant
- [4.46] Bond Limitations
- [4.47] Bond Coverage
- [4.48] Defenses to Bond Claims
- [4.52] Failure To Mitigate Damages — Penal Sum Limits
- [4.53] Interest
- [4.54] Attorneys’ Fees
- VII. [4.55] Conclusion
- Chapter 5 — Claims Against Construction Lenders
- Chapter 6 — Claims Arising out of Construction Accidents
- I. [6.1] Scope of Chapter
- II. [6.2] Personal-Injury Claims
- Claims Against Employers
- Claims Against Third Parties
- Theories of Liability
- Liability Issues
- [6.21] Illustrative Hypotheticals
- Indemnity Considerations
- Defense Considerations
- III. [6.36] Property Loss Claims
- Chapter 7 — Claims Involving Termination or Suspension
- I. [7.1] Scope of Chapter
- II. [7.2] Termination
- [7.3] Owner’s Termination of the Agreement
- [7.4] Termination of a Contractor for Cause
- [7.9] Termination of a Contractor for Convenience
- [7.10] AIA Form Agreement: Termination-for-Convenience Provision
- [7.11] EJCDC Form Agreement: Termination-for-Convenience Provision
- [7.12] Other Examples of Termination-for-Convenience Provisions
- [7.13] Termination for Convenience When a Project Is Canceled or Not Approved by Local Government Agencies
- [7.14] Compensation Agreements When Terminating for Convenience
- [7.15] How Courts Interpret Termination-for-Convenience
- [7.16] Contingent Assignment of Subcontracts If Owner Terminates
- [7.17] Converting a Termination for Cause into a Termination for Convenience
- [7.18] Contractor’s Termination of the Agreement
- [7.23] Providing Notice of Termination
- [7.24] Cancellation Charges
- [7.25] Anticipatory Repudiation of a Contract
- [7.26] Wrongful Termination
- [7.27] Defenses to Termination Claims
- III. [7.28] Suspension
- IV. [7.31] Conclusion
- Chapter 8 — Claims for Disruption/Loss of Productivity
- I. [8.1] Introduction
- II. [8.2] Establishing Entitlement to Disruption Claim
- III. [8.7] Establishment and Quantification of Inefficiency and Other Impact Claims
- [8.8] Establishing Liability and Burdens of Proof
- [8.9] Establishing Cause of Diminished Labor Productivity
- [8.10] Methods To Quantify Inefficiencies
- [8.11] Discrete Pricing
- [8.12] Measured Mile Approach
- [8.13] Total Cost/Modified Total Cost Methodologies
- [8.14] Industry and Academic Publications
- [8.15] Use of Expert Testimony
- Chapter 9 — Claims for Acceleration and Delay
- I. [9.1] Scope of Chapter
- II. [9.2] Delay
- [9.3] Excusable Delay
- [9.4] Compensable Delay
- [9.5] Non-Compensable Delay
- [9.6] Non-Excusable Delay
- [9.7] Concurrent Delay
- [9.8] Contractual Issues
- [9.9] Notice Provisions
- [9.10] No-Damages-for-Delay Provisions
- [9.11] Analyzing Critical Path Method Delays
- [9.12] Primavera as a Tool for CPM Scheduling
- [9.13] Use of Experts To Analyze and Quantify CPM Delay
- III. [9.14] Acceleration
- IV. [9.15] Remedies and Damages
- Remedies for Each Party
- [9.16] Damages to the Owner
- [9.17] Damages to the Contractor
- [9.18] Calculating Commencement of Delays
- [9.19] Calculating Damages
- [9.20] Discrete Method
- [9.21] Total Cost Method
- [9.22] Modified Total Cost Method
- What Costs Are Included
- [9.23] Extended Home Office Overhead and the Eichleay Formula
- [9.24] Loss of Efficiency or Productivity
- V. [9.25] Conclusion
- Chapter 10 — Insurance Coverage for Construction Defect Claims
- [10.1] Introduction
- II. [10.2] Common Types of Insurance Policies Related to Construction Defect Claims
- III. [10.3] Claims Covered by the Typical Commercial General-Liability Policy
- [10.4] Definition of “Occurrence”
- [10.5] The Evolution of the CGL Policy Forms and Its Intended Effect on Coverage for Construction Defect Claims
- [10.6] The Split in Authority as to Whether Damage from Construction Defects, Standing Alone, Is an “Occurrence”
- [10.7] The Illinois View: Damage to the Project Itself vs. Damage to Other Property
- [10.8] Damages Caused by a Subcontractor’s Work
- [10.9] Contract Claims vs. Tort Claims
- [10.10] The Definition of “Property Damage”
- [10.11] Physical Injury to Tangible Property
- [10.12] Repair or Replacement of Faulty Workmanship
- [10.13] Damage to Other Property
- [10.14] The Incorporation Doctrine
- [10.15] Loss-of-Use Damages
- IV. The Duty To Defend
- [10.16] The Scope of the Duty To Defend as Compared to the Duty To Indemnify
- Triggering the Duty To Defend
- [10.17] The Low Threshold for the Duty To Defend
- [10.18] The Four Corners of the Complaint and True but Unpleaded Facts
- [10.19] The Estoppel Doctrine
- [10.20] Ability To Retain Independent Counsel — Conflict of Interest
- V. [10.21] Typical Exclusions Applicable to Construction Damages Claims
- VI. [10.26] Additional Insured Coverage
- [10.27] Major ISO Additional Insured Endorsement Forms and Scope of Coverage
- [10.28] CG 20 10 11 85 and the Broad “Arising out of” Formulation
- [10.29] CG 20 10 10 93 and the Assault on Completed-Operations Coverage
- [10.30] CG 20 10 10 01 and CG 20 37 10 01
- [10.31] CG 20 10 07 04 and Fault-Based Additional Insured Coverage
- [10.32] CG 20 09 03 97 and Absence of Contractual Liability Coverage
- [10.33] Manuscript Endorsements and Limitations to Imputed or Vicarious
- [10.34] Determining the Duty To Defend Under Limited Additional Insured Endorsements
- VII. The Targeted Tender Rule and Other/Excess Insurance Clauses
- Chapter 11 — Scope Changes and Differing Site Conditions
- I. Scope Changes
- [11.1] Overview
- [11.2] Constructive Changes and Waiver of Change Order Provisions
- [11.3] Outside Original Scope — Spearin
- [11.4] Outside Original Scope — General
- [11.5] Outside Original Scope and Interference, Duty Not To Hinder
- Ordered by Owner, Agreed To Be Paid by Owner
- [11.6] Who Is Authorized To Bind the Owner
- [11.7] Words or Conduct Indicating Payment
- [11.8] Inapplicable Change Order Provisions
- [11.9] Notice and Written Claim Requirements
- [11.10] Change Orders as Accord and Satisfaction
- [11.11] Cardinal Change and Cumulative Impacts
- [11.12] Construction Change Directives and Continuing Work
- II. Differing Site Conditions
- Chapter 12 — Representing the Owner
- I. [12.1] Introduction
- II. [12.2] The Owner
- III. [12.7] The Economics of Construction Dispute Resolution
- IV. Investigating the Claim: The Expert; Spoliation; Notice; Memorializing the Evidence
- [12.8] Spoliation
- The Importance of the Expert
- [12.9] Consulting Expert
- [12.10] Testifying Expert
- [12.11] The Contractor’s Right To Cure Deficiencies
- [12.12] Developing a Remediation Plan
- [12.13] The Expert’s Testimony
- [12.14] Ascertaining the Sources of Responsibility
- [12.15] Ascertaining Recoverable Damages
- V. [12.16] The Nature of the Claim
- [12.17] Pre-Construction Claims
- [12.18] Public Bid Claims/Protests
- [12.19] State Government Bid-Protest Procedures in Illinois
- [12.20] Bid-Protest Procedures for Illinois Units of Local Government
- Standing To Challenge the Award
- [12.21] Taxpayer
- [12.22] Unsuccessful bidder
- [12.23] Indispensable parties
- [12.24] Theories of Challenge to Bid Awards
- [12.25] Mandamus
- [12.26] Injunctive relief
- [12.27] Deprivation of due process
- Recovery
- [12.28] No recovery of lost profits
- [12.29] Recovery of bidding expenses
- [12.30] Private Nuisance Claims
- [12.31] Trespass Claims
- [12.32] Construction Claims During Construction
- [12.33] Contract Claims During Construction
- [12.34] Default and Termination for Cause
- [12.35] Delay Claims
- [12.36] Termination for Convenience
- [12.37] Payment Claims
- [12.38] Negligence, Construction Defects, and the Economic-Loss Doctrine
- [12.39] Personal-Injury Tort Claims
- [12.40] Contribution and Indemnity Claims
- [12.41] Damage to Other-Property Negligence Claims
- [12.42] Fraud — Intentional Misrepresentation
- [12.43] Negligent Misrepresentation
- [12.44] Breach of Contract
- [12.45] Express Warranties
- [12.46] Implied Warranties
- [12.47] The Implied Warranty of Residential Habitability
- [12.48] Residential: Magnuson-Moss Warranty-Federal Trade Commission Improvement Act
- VI. [12.49] Targeting Defendants and Understanding Construction Delivery Systems
- VII. [12.59] Ascertaining and Triggering Insurance Coverage
- [12.60] Is There an Occurrence? Or Is There Property Damage as a Result of an Occurrence?
- [12.61] Damage to Property
- [12.62] The Commercial General-Liability “Your Work” Exclusions
- [12.63] The Subcontractor Exception to the “Your Work” Exclusion Contained in the Products/Completed Operations Liability Coverage Form
- [12.64] Coverage and the Additional Insured
- VIII. [12.65] Complying and Pleading Compliance with Conditions Precedent to Commencing Dispute Resolution Proceedings During Construction
- IX. [12.66] Ascertaining the Forum: Litigation or Arbitration
- X. Pleading the Claim
- XI. [12.73] Trial
- Chapter 13 — Sources of Evidence (Discovery)
- I. Discovery Strategy and Planning
- II. [13.4] Litigation Holds
- III. [13.5] Interrogatories
- IV. [13.9] Requests for Production of Documents
- V. Depositions
- VI. [13.16] Requests for Admissions
- VII. Other Discovery Methods
- VIII. [13.19] Expert Witness Discovery
- [13.20] Disclosure of Experts and Expert Reports
- [13.21] The Scope of Expert Discovery and Privileges for Communications Between Experts and Attorneys
- [13.22] Admissibility of Expert Opinions
- [13.23] Expert’s Testimony Must Be Relevant
- [13.24] Relevant Expert Testimony Is Inadmissible If the Potential for Prejudice Outweighs the Probative Value of the Testimony
- [13.25] Admissibility of Expert Testimony Based on Scientific or Specialized Knowledge
- [13.26] Basis of Expert Opinion Testimony and Disclosure of Facts or Data Underlying Expert Opinion
- [13.27] Timing of Expert Retention
- [13.28] Choosing an Expert
- [13.29] Use of Experts in Discovery
- [13.30] Discovery of Opponent’s Expert
- [13.31] The Qualifications of the Expert
- [13.32] The Expert’s Bias
- [13.33] The Expert’s Credibility
- [13.34] Adequacy of Preparation
- IX. [13.35] Resolving Discovery Disputes
- X. [13.39] Protective Orders
- XI. [13.40] Discoverability of Insurance
- XII. [13.41] Discovery Support
- XIII. [13.42] Consider Limited Discovery
- XIV. Discovery and Duties Before the Lawsuit
- XV. Appendix
- Chapter 14 — Working with Experts/Consultants
- I. [14.1] Introduction
- II. Retention
- III. Forum Rules for the Admissibility of Expert Testimony
- IV. [14.16] Drawings, Photos, Videos, and Models; Illinois Procedural Rules for Admission of Evidence
- V. Expert Discovery and Disclosure
- VI. [14.20] Expert Preparation
- VII. [14.21] Preparing for Discovery of the Opponent’s Experts
- VIII. [14.22] Preservation of Notes, Reports, and Opinions
- IX. [14.25] Joint-Defense Privilege
- Chapter 15 — Special Defenses to Construction Claims
- I. Introduction
- II. Defenses Arising from Statute
- [15.4] Statute of Limitations
- [15.5] Application to Design, Planning, Supervision, Observation, or Management of Construction
- [15.6] Triggering Events
- [15.7] Scope of Application
- [15.8] Coverage Under the Anti-Indemnity Act
- [15.9] Exceptions to the Anti-Indemnity Act
- [15.10] Statutory Presumption of Reasonable Care
- III. Defenses Arising from Common Law
- [15.11] Economic-Loss Rule (the Moorman Doctrine)
- [15.12] Exceptions to the Economic-Loss Rule
- [15.13] Sudden and Calamitous Damage to Other Property
- [15.14] Intentional Misrepresentation (Fraud)
- [15.15] Negligent Misrepresentation by One in the Business of Supplying Information
- [15.16] Open and Obvious Dangers
- [15.17] Betterment/Unjust Enrichment
- [15.18] Architect/Engineer Cases
- [15.19] Contractor Cases
- [15.20] Roof Cases
- [15.21] Failure To Mitigate
- [15.22] Lack of Proximate Cause/Intervening Cause
- [15.23] Deviation from the Plans and Specifications
- [15.24] Equitable Estoppel
- [15.25] Lack of Reasonable Reliance
- [15.26] Public Employees
- [15.27] Consultant Privileges
- [15.28] No Duty
- [15.29] Lack of Foreseeability
- [15.30] No Control
- [15.31] Contributory Negligence
- Compliance with the Standard of Care/Reasonable Care
- [15.32] Designers
- [15.33] Contractors
- [15.34] Accepted-Work Doctrine
- [15.35] Voluntary Acceptance of Defective Work
- [15.36] Assumption of the Risk
- [15.37] Failure To Exhaust Administrative Remedies
- [15.38] No License (Illegality)
- [15.39] Defenses to Implied-Warranty-of-Habitability Claims
- Owner’s Defenses
- [15.40] Defective Work
- [15.41] Cause for Termination
- [15.42] Setoff
- [15.43] Right of Contractor To Correct Defective Work
- IV. Defenses Arising from Contract
- [15.44] Limitation-of-Liability Clauses
- [15.45] Contractual Statute of Limitations — Modification by Contract
- [15.46] No-Damages-for-Delay Clauses
- [15.47] Liquidated-Damages Clauses
- Remedy-Limitation Clauses
- [15.48] Alternative Dispute Resolution
- [15.49] Warranty as Exclusive Remedy
- [15.50] Waiver of Consequential
- [15.51] Waiver-of-Subrogation Clauses
- [15.52] Compliance with Plans and Specifications
- [15.53] Qualified Privilege (e.g., Privilege To Interfere)
- [15.54] Material Breach as Excuse for Nonperformance
- [15.55] Acceptance by Owner or Owner’s Agent
- V. [15.56] Shifting Risk to Another
- VI. Defenses to Particular Statutory Claims
- Chapter 16 — The Owner’s Recovery of Damages
- I. [16.1] Introduction
- II. The Evidence of Damages
- III. Damages Arising from Breach of Contract
- [16.9] General Rule — Foreseeable Damages
- [16.10] Owner’s Recovery of Damages — Completion Costs Recoverable
- [16.11] Owner’s Breach — Contractor’s Recovery — Contract Price
- [16.12] Business Disruption
- [16.13] Mitigation Expenses
- [16.14] Personnel Time Lost
- [16.15] Defective Performance: Repair or Replacement — Cost of Correction — The Owner’s Recovery
- [16.16] Exceptions — Diminished Value — Economic Waste
- [16.17] Inconvenience Due to Delay
- [16.18] Loss of Use/Enjoyment/Reasonable Rental Value
- [16.19] Financing
- [16.20] Delay
- [16.21] Jobsite Overhead
- [16.22] Unabsorbed Home Office Overhead
- [16.23] Total Cost Approach
- [16.24] Modified Total Cost — Apportionment of Delay
- [16.25] Supervision
- Loss of Profits
- [16.26] General Principles
- [16.27] Contractor’s Recovery of Profit
- [16.28] Incidental Damages — Inspection, Receipt, and Transportation
- [16.29] Professional Consulting Fees
- [16.30] Inflation Costs — Present Value
- [16.31] Disruption and Interference
- [16.32] Acceleration
- [16.33] Mental Anguish
- [16.34] Personal, Peculiar, or Sentimental Value
- [16.35] Overtime
- [16.36] Damage to Personal Property
- [16.37] Special/Consequential Damages
- [16.38] Architectural/Engineering Expenses
- [16.39] Inflation Cost of Borrowing Money
- [16.40] Recovery of Incidental Damages Under the Uniform Commercial Code
- [16.41] Punitive Damages — Contract Claims
- [16.42] Delay Damages
- [16.43] Express Indemnity Agreement
- IV. Contractual Limitations on Damages
- V. [16.50] Damages Arising from Tortious Conduct
- [16.51] Recovery for Personal Injury
- [16.52] Recovery for Property Damages — Personalty
- [16.53] Recovery of Property Damages — Realty
- [16.54] Punitive Damages
- [16.55] Recovery of Punitive Damages Against Corporations
- [16.56] Procedural Steps To Seek Punitive Damages
- [16.57] Constitutional Limitations on the Award of Punitive Damages
- VI. Other Damages
- Attorneys’ Fees
- [16.58] The American Rule
- [16.59] Exception to the American Rule
- [16.60] The Prevailing Party’s Contractual Right To Recover Attorneys’ Fees
- [16.61] Who Is the Prevailing Party?
- [16.62] The Statutory Right To Recover Attorneys’ Fees
- [16.63] Mechanics Lien Act
- [16.64] Violation of Building Ordinance
- [16.65] The Home Repair and Remodeling Act
- [16.66] Consumer Fraud and Deceptive Business Practices Act
- [16.67] The Magnuson-Moss Warranty — Federal Trade Commission Improvement Act
- [16.68] Attorneys’ Fees Under the Rules of Arbitration
- [16.69] Proof of Attorneys’ Fees
- [16.70] Recovery of Costs
- [16.71] Recovery of Expenses of Litigation
- Interest
- [16.72] Prejudgment Interest — Instrument of Writing
- [16.73] Prejudgment Interest for Vexatious and Unreasonable Delay in Payment
- [16.74] Interest Under the Mechanics Lien Act
- [16.75] Postjudgment Interest
- [16.76] Prompt Payment Acts
- [16.77] Contractor’s Prompt Payment Act
- [16.78] State and Local Government Prompt Payment Acts
- [16.79] Costs
- Illinois Courts
- [16.80] In General
- [16.81] Filing Fees, Subpoena Fees, and Statutory Witness Fees
- [16.82] Deposition Costs — Used at Trial
- [16.83] Interpreter and Trial Subpoena Fees
- [16.84] Federal Courts
- VII. Defenses to Damages Claims
- VIII. [16.92] Standard of Appellate Review
- IX. [16.93] Conclusion
- Chapter 17 — Contractors’ and Subcontractors’ Damages
- I. [17.1] Introduction
- II. Contract Theories, Clauses Authorizing Damages, and Limitations
- [17.2] Common-Law Contract Measure of Damages
- [17.3] Substantial Performance
- [17.4] Contractor’s Common-Law Measure of Damages When the Owner Is in Material Breach and Substantial Performance Has Been Achieved
- [17.5] Contractor’s Common-Law Measure of Damages When the Owner Is in Material Breach but the Contractor Has Not Achieved Substantial Performance of the Contract
- [17.6] Contractor’s Common-Law Measure of Damages When the Contractor Is Guilty of the First Material Breach of Contract and the Contractor Has Achieved Substantial Performance
- [17.7] Contractor’s Common-Law Measure of Damages When the Contractor Is in Material Breach of the Contract but Has Not Achieved Substantial Performance
- [17.8] Standard of Proof
- [17.9] Contract Clauses Authorizing Damages
- Common Limitation-of-Damages Clauses
- [17.10] No Damages for Delay
- [17.11] Waiver of Consequential Damages
- [17.12] Change Order Clause Limitations
- [17.13] Other
- [17.14] Differing-Site-Conditions Clauses
- [17.15] Failure of Payment by Owner
- [17.16] Introduction
- [17.17] Illinois Permits Pass-Through Claims
- [17.18] Liquidating Agreements Appear Not To Be a Necessary Prerequisite in Illinois
- [17.19] The General Contractor Must Remain Liable, If Only Conditionally, to the Subcontractor
- III. Tort Theories and Limitations
- [17.20] Intentional Torts
- [17.21] Fraud
- [17.22] False Sworn Statements
- [17.23] Constructive Fraud
- [17.24] Conversion
- Unintentional Torts
- [17.25] Negligence
- [17.26] Strict Liability
- [17.27] Economic-Loss Doctrine — Moorman Manufacturing Co. v. National Tank Co.
- [17.28] Negligent Misrepresentation
- Statutory Torts
- [17.29] Consumer Fraud and Deceptive Business Practices Act
- [17.30] Contribution
- [17.31] Punitive Damages
- IV. Overview of Damages Calculations
- V. Types of Recoverable Costs
- [17.37] Labor Costs
- [17.38] Direct Labor Overrun
- [17.39] Applicable Wage Rate
- [17.40] Additional Hours
- [17.41] Labor Burdens
- [17.42] Wage Escalation
- [17.43] Loss of Productivity
- [17.44] Equipment and Small Tool Costs
- [17.45] Additional Equipment Costs
- [17.46] Cost of Additional Small Tools
- [17.47] Material Costs
- [17.48] Materials Generally
- Direct Costs Associated with Material Claims
- [17.49] Owner-Caused Delay
- [17.50] Defective Specifications
- [17.51] Owner-Directed Changes
- [17.52] Indirect Costs Associated with Material Claims
- [17.53] Mitigating Factors in Recovering Additional Costs
- [17.54] Price-Escalation or Revision Clauses
- [17.55] Bond and Insurance Costs
- [17.56] Construction Contract Bonds
- [17.57] Reasons for Increased Bond Costs
- [17.58] Loss or Impairment of Bonding Capacity or Credit
- [17.59] Increased Insurance Costs
- [17.60] Jobsite Overhead
- [17.61] “Jobsite Overhead” Defined
- [17.62] Calculation Methods
- [17.63] Home Office Overhead
- [17.64] Home Office Overhead Costs
- [17.65] Fixed Costs vs. Variable Costs
- [17.66] Eichleay Formula
- [17.67] Other Methods
- [17.68] Profit
- [17.69] “Profit” Defined
- [17.70] Profit on Work Performed
- [17.71] Profit on Unperformed Work
- [17.72] Lost Business Revenues
- [17.73] Interest
- [17.74] Interest Act
- [17.75] Prejudgment Interest
- [17.76] Postjudgment Interest
- [17.77] AIA Contracts
- [17.78] Mechanics Lien Act
- [17.79] Prompt Payment Acts
- VI. [17.80] Attorneys’ Fees and Claim Preparation Costs
- VII. Other Sources of Remedies and Damages
- VIII. Restitution
- Chapter 18 — Recovery of Attorneys’ Fees, Costs, and Expenses
- I. [18.1] The American Rule and Shifting the Burden
- II. [18.2] Who Is the “Prevailing Party”
- III. [18.11] Award of Attorneys’ Fees, Interest, Costs, and Expenses
- The Award of Attorneys’ Fees
- [18.12] Reasonableness of Attorneys’ Fees
- [18.13] Determining the Amount of Attorneys’ Fees and Costs To Be Awarded
- [18.14] Appellate Review of Awards of Attorneys’ Fees
- [18.15] Attorneys’ Fees Under the Mechanics Lien Act
- [18.16] Attorneys’ Fees Awarded in Arbitration
- [18.17] Costs and Expenses
- [18.18] Award of Interest
- IV. [18.19] Conclusion
- Chapter 19 — Nonbinding Alternatives to Court Litigation for Resolving Construction Disputes
- Chapter 20 — Arbitration
- I. [20.1] Arbitration — A Statutorily Enforced Agreement
- II. [20.2] Optional Arbitration
- III. [20.3] Availability of Arbitral Forum Under Illinois Law
- IV. [20.4] Choice of Law
- V. Agency Rules
- VI. [20.7] Determination of Arbitrability
- VII. [20.8] Who Decides Arbitrability — Court or Arbitrator
- VIII. [20.9] Waiver of Arbitration
- IX. [20.10] Joinder and Consolidation
- X. [20.11] Site of Arbitration
- XI. [20.12] Selection of the Arbitrator(s)
- XII. [20.13] Customization of the Arbitration Process
- XIII. Initiation of Arbitration
- XIV. [20.17] Motions To Compel or Stay Arbitration
- XV. [20.18] Prehearing Conference
- XVI. [20.19] Fees of Administering Agencies
- XVII. [20.20] Mechanics Lien Perfection Required
- XVIII. [20.21] Length of Time From Submittal to Award
- XIX. [20.22] Discovery
- XX. [20.23] Electronic Discovery
- XXI. [20.24] Venue for Hearing
- XXII. [20.25] Hearings
- XXIII. [20.26] Illinois Requirement That Arbitrators Follow the Contract
- XXIV. Awards
- XXV. [20.30] Ex Parte Awards
- XXVI. [20.31] Confirmation of Award
- XXVII. [20.32] Time To Challenge an Award
- XXVIII. [20.35] Modification of Award
- Douglas R. Allen
Douglas R. Allen
No bio available.
- Geoffrey A. Bryce
Geoffrey A. Bryce
Geoffrey A. Bryce is the Managing Capital Member of Bryce Downey & Lenkov LLC in Chicago, where he concentrates his practice in commercial and construction litigation and business transactions. He is a member of the American and Illinois State Bar Associations, the Society of Illinois Construction Attorneys, the American Institute of Architects, and the Associated General Contractors of America. He has also been named a Leading Lawyer in Commercial Litigation and Construction Law. Mr. Bryce received his B.A. from the University of Toledo, his M.S. in taxation from DePaul University, and his J.D. from The John Marshall Law School.
- Jeffrey B. Charkow
Jeffrey B. Charkow
Jeffrey B. Charkow is a Partner at Harris Winick Harris LLP in Chicago, where he concentrates his practice in construction litigation. He was a law clerk to the Honorable Carol E. Jackson of the United States District Court for the Eastern District of Missouri. He is a member of the Society of Illinois Construction Attorneys. Mr. Charkow received his undergraduate degree from the University of Wisconsin-Madison and his J.D., Order of the Coif, from Washington University School of Law.
- Alexandra R. Cole
Alexandra R. Cole
Alexandra R. Cole is a Partner with Perkins Coie LLP in Chicago, where she focuses on real estate transactions and development, hospitality, international real estate, project finance, and construction law. In addition to writing for IICLE®, Ms. Cole has been a presenter for numerous professional organizations, including for the Society of Illinois Construction Attorneys, Crew Resilient Leadership Workshop, and American College of Real Estate Lawyers. Ms. Cole is ranked by Chambers USA as one of America’s Leading Lawyers in Construction, Real Estate, and Leisure and Hospitality. She has also received the Women in Real Estate 2010 Career Achievement Award from the Illinois Real Estate Journal. She is a member of American College of Real Estate Lawyers, a member of the Steering Committee for the Society of Illinois Construction Attorneys, and a Founding Board Member of the Hospitality Industry Bar Association. Ms. Cole received her B.A. cum laude from DePauw University and her J.D. from the University of Chicago Law School.
- Timothy R. Conway
Timothy R. Conway
Timothy R. Conway is Of Counsel to Conway & Mrowiec Attorneys LLLP in Chicago, where he focuses on construction law. He is a member of the Society of Illinois Construction Attorneys and the American Bar Association Forum on Construction Law. Mr. Conway received his B.A. from DePaul University and his J.D. from Northwestern University Pritzker School of Law.
- Mark C. Friedlander
Mark C. Friedlander
Mark C. Friedlander is a Partner with Schiff Hardin LLP in Chicago, where he concentrates his practice in construction law. He is an adjunct professor at the University of Illinois at Chicago Graduate School of Architecture, he is on the Editorial Board for the Journal of Construction Accounting & Taxation, and he is a frequent speaker and author on topics relating to design-build construction and other areas of construction law. Mr. Friedlander was rated #1 in Illinois Construction Law by Leading Lawyers Magazine — Real Estate, Construction & Environmental Edition, named an Illinois Super Lawyer, and rated #1 in National Construction Litigation Practice by Chambers USA. He is on the Board of Governors for the American College of Construction Lawyers, President of the Society of Illinois Construction Attorneys, and Chair of the Professional Practices and Contracts Committee with the Design-Build Institute of America. Mr. Friedlander received his B.A. with high honors from the University of Michigan and his J.D. from Harvard Law School.
- Adam L. Gill
Adam L. Gill
Adam L. Gill is an associate at Duane Morris LLP in Chicago, where he concentrates in construction litigation. He is a member of the Illinois State and Chicago Bar Associations and of the American Institute of Architects. Mr. Gill received his B.A. in architecture from Kansas State University and his J.D. cum laude from DePaul University College of Law.
- Lawrence S. Gosewisch
Lawrence S. Gosewisch
Lawrence S. Gosewisch is a Senior Partner at Adler Murphy & McQuillen LLP in Chicago, where he concentrates his practice in litigation. He is a member of the American and Chicago Bar Associations. Mr. Gosewisch received his B.A. with high honors from Lewis University and his J.D. with honors from DePaul University College of Law.
- Logan A. Hollobaugh
Logan A. Hollobaugh
No bio available.
- Kevin L. Kolton
Kevin L. Kolton
Kevin L. Kolton is a Partner at Schiff Hardin LLP in Chicago, where he focuses his practice on construction law. He is a member of the Society of Illinois Construction Attorneys and has been named an Illinois Super Lawyer and to Best Lawyers in America. Mr. Kolton received his B.S. in engineering from the University of Illinois and his J.D. magna cum laude from South Texas College of Law.
- Charles B. Lewis
Charles B. Lewis
Charles B. Lewis is a Partner at Duane Morris LLP in Chicago, where he focuses on construction law and litigation and construction dispute resolution. He has been named to the American Arbitration Association’s Construction Mega Project Panel, which is limited to approximately 60 arbitrators nationwide, and has also been selected by a rating committee made up of a diverse group of advocates and in-house counsel representing clients in large complex disputes to be one of 11 mediators on the Association’s Midwest Master Mediator Panel. He is certified as a mediator by the International Mediation Institute. Mr. Lewis received his B.A. from the University of Michigan and his J.D. from the University of San Francisco School of Law.
- John-Paul Lujan
John-Paul Lujan
John-Paul Lujan is a Partner at Harris Winick Harris LLP in Chicago, where he focuses his practice on counseling businesses, organizations, and institutions in connection with their construction and building needs. He has been recognized as one of the Best Lawyers in America and is a member of the Society of Illinois Construction Attorneys. He has lectured and written on various design and construction law issues. Mr. Lujan received his bachelor’s and master’s degrees in architecture from the University of Illinois and his J.D. from DePaul University College of Law.
- Paul M. Lurie
Paul M. Lurie
Paul M. Lurie is a Partner at Schiff Hardin LLP in Chicago, where he focuses his practice on construction arbitration and mediation. He is a Master Mediator and member of the Large Complex Case Panel of the American Arbitration Association, a Fellow of the College of Commercial Arbitrators, and a Fellow of the International Academy of Mediators. Mr. Lurie received his J.D. from the University of Michigan Law School.
- Virgil R. Montgomery
Virgil R. Montgomery
Virgil R. Montgomery is a Partner at Schiff Hardin LLP in Chicago, where he focuses his practice on construction law. He is a member of the American, Illinois State, and Ohio State Bar Associations. Mr. Montgomery received his undergraduate degree from the University of Colorado and his J.D. from Harvard Law School.
- John S. Mrowiec
John S. Mrowiec
John S. Mrowiec is a General Partner at Conway & Mrowiec Attorneys LLLP in Chicago, where he focuses on construction litigation. He is a member of the Society of Illinois Construction Attorneys and the American Bar Association Forum on Construction Law and a Life Trustee of the Francis W. Parker School. Mr. Mrowiec received his J.D. from DePaul University School of Law, where he was the Articles & Notes Editor.
- Douglas J. Palandech
Douglas J. Palandech
Douglas J. Palandech is a Partner at Foran Glennon Palandech Ponzi & Rudloff PC in Chicago, where he focuses his practice on construction, design professional, and legal liability; products liability; and first-party property cases. He is a member of the International Association of Defense Counsel, the Illinois Association of Defense Trial Counsel, and the Society of Illinois Construction Attorneys. He was named a Super Lawyer in Illinois from 2005 – 2009. Mr. Palandech earned his B.A. magna cum laude, Phi Beta Kappa from the University of Texas and his J.D. cum laude from Chicago-Kent College of Law.
- Dennis J. Powers
Dennis J. Powers
Dennis J. Powers is a Partner at DLA Piper LLP (US) in Chicago, where he focuses on construction law and real estate and commercial litigation. He has been selected for inclusion in Best Lawyers in America, Construction Law, and has been designated an Illinois Super Lawyer as the result of research projects conducted jointly by Law & Politics and Chicago magazines. He is also listed in Leading Lawyers for Construction Law and is a member of the American and Chicago Bar Associations and the Construction Law Forum. Mr. Powers received his J.D. from the DePaul University College of Law.
- Richard P. Reichstein
Richard P. Reichstein
Richard P. Reichstein (retired) founded the Law Offices of Richard P. Reichstein, Ltd., in Chicago, focusing on building construction claims, government contracts, and general business litigation issues. He has been a member of the American, Illinois, and Chicago Bar Associations; the National Contract Management Association; General Contractors of America; and Associated General Contractors of Illinois. Mr. Reichstein received his M.B.A. from Northwestern University Kellogg School of Management and his J.D. from Chicago-Kent College of Law.
- Kenneth M. Roberts
Kenneth M. Roberts
Kenneth M. Roberts is a Partner at Venable LLP in Chicago and the Chair of the Construction Law Group. He concentrates his practice in the field of construction law, project controls, procurement contracts, and alternative dispute resolution. Mr. Roberts has written for numerous publications and has also been a guest lecturer, instructor, and adjunct professor for Northwestern University School of Law and Department of Engineering, Chicago-Kent College of Law, Loyola University Chicago School of Law, and the University of Iowa College of Business. He is licensed to practice in Illinois, New York, and Missouri; a Board Member for the Dispute Resolution Board Foundation; and a member of the Chicago Bar Association and the Society of Illinois Construction Attorneys. Mr. Roberts received his B.G.S. with honors and his J.D. with distinction from the University of Iowa.
- Heidi Hennig Rowe
Heidi Hennig Rowe
Heidi Hennig Rowe is a Partner at Schiff Hardin LLP in Chicago, where she focuses her practice on construction law. She is a member of the American Bar Association (Section of Litigation, Forum Committee on the Construction Industry) and Chicago Bar Association and was named an Illinois Super Lawyers Rising Star in 2014, an Illinois Leading Lawyers Emerging Lawyer in 2015, and an Illinois Leading Lawyer in 2017. Ms. Rowe received her B.A. magna cum laude from Valparaiso University and her J.D. with high honors, Order of the Coif, from Chicago-Kent College of Law.
- Randolph E. Ruff
Randolph E. Ruff
Randolph E. Ruff is a Shareholder and Practice Group Chair at Ogletree, Deakins, Nash, Smoak & Stewart, P.C., in Chicago, where he focuses on construction law. He was awarded Lawyer of the Year for Construction Law in Chicago by Best Lawyers in 2016, was awarded Tier One from 2015 to 2019 and Ranked from 2003 to 2019 by Chambers USA, and was recognized among the Top 10 Illinois Construction Lawyers by Leading Lawyers from 2017 to 2019. Mr. Ruff received his B.A. from the University of Colorado and his J.D. from the Valparaiso University Law School.
- Bruce H. Schoumacher
Bruce H. Schoumacher
No bio available.
- Clifford J. Shapiro
Clifford J. Shapiro
Clifford J. Shapiro is a Partner at Barnes & Thornburg LLP in Chicago, where he is Chair of the Construction Law Practice Group. He is a Fellow of the American College of Construction Lawyers, Past President of the Society of Illinois Construction Attorneys, and an active member of the ABA Forum on the Construction Industry. He is an inaugural member of the American College of Coverage and Extracontractual Counsel, is ranked as a “Band 1” Top Construction Attorney by Chambers USA, and is also listed as a top construction lawyer by Leading Lawyers and Illinois Super Lawyers. Mr. Shapiro received his B.A. magna cum laude from Washington University in St. Louis and his J.D. with high honors, Order of the Coif, from George Washington University Law School, where he was a member of the law review.
- Eric L. Singer
Eric L. Singer
Eric L. Singer is a Partner at Ice Miller LLP in Chicago and Lisle, where he concentrates his practice in construction law, litigation of construction and real estate disputes, and negotiation of design and construction agreements. He is a member of the American Bar Association Forum on Construction Law, the Illinois and DuPage County Bar Associations, and the Society of Illinois Construction Attorneys. He is also an Allied/Affiliate Member of the American Institute of Architects Chicago and Northeast Illinois Chapters. He received his B.A. magna cum laude, Phi Beta Kappa, from the University of Illinois and his J.D. from the University of Chicago Law School.
- Stanley P. Sklar
Stanley P. Sklar
Stanley P. Sklar is a Principal at Dispute Resolution Services in Northbrook. In 2009, he was named Director of Arbitration Studies at the Center for Dispute Resolution, DePaul University College of Law in Chicago, and is an adjunct professor of commercial arbitration at DePaul University College of Law. Mr. Sklar writes extensively and presents seminars on construction-related topics. He is a Past President of the American College of Construction Attorneys, Past President of the Society of Illinois Construction Attorneys, and Past President of the College of Commercial Arbitrators. He is a recipient of the ABA Forum on Construction Industry Cornerstone Award for Lifetime Achievement in the field of construction law. He was former Chair of the Chicago Bar Association’s Real Estate Committee, Construction Mechanics Lien Committee, and Alternate Dispute Resolution Committee. He is a member of the American Arbitration Association Panel for Large Complex Commercial and Construction Disputes and of its National Construction Dispute Rules Committee and is an International Mediation Institute Certified Mediator. He is a former member of the American Bar Association Forum on the Construction Industry and is a Certified Arbitrator and Certified Mediator for the American Arbitration Association and a member of its National Training Faculty for Commercial Arbitrators. Mr. Sklar received his B.S. from the University of Illinois and his J.D. from Northwestern University Pritzker School of Law.
- Lorence H. Slutzky
Lorence H. Slutzky
Lorence H. Slutzky is the Principal at the Law Office of Lorence H. Slutzky, Ltd., in Glenview, where he concentrates his practice in construction law. He is a Founder and Past President of the Society of Illinois Construction Attorneys, a Fellow of the American College of Construction Attorneys, and a member of the Florida Bar and Board Certified (by examination) as a Construction Specialist. Mr. Slutzky received his B.S. from Southern Illinois University and his J.D. from the University of Illinois Chicago School of Law.
- Jenée M. Straub
Jenée M. Straub
Jenée M. Straub is currently living in Katy, Texas. She previously practiced at Ice Miller LLP in Chicago. Ms. Straub received her B.A. from Bradley University and her J.D. cum laude from Northern Illinois University College of Law.
- Matthew J. Straub
Matthew J. Straub
No bio available.
- Justin L. Weisberg
Justin L. Weisberg
Justin L. Weisberg is a Partner at Robbins Salomon & Patt, Ltd., in Chicago, where he focuses his practice on construction law. He is a member of the Society of Illinois Construction Attorneys Steering Committee (Vice Chair 2020), a delegate of the Engineers Joint Construction Documents Committee (Chair 2012), and a member of the Illinois State Bar Association Construction Section Council (Chair 2020). Mr. Weisberg received his B.S.E. from the University of Illinois and his J.D. from Chicago-Kent College of Law.
- Jeffrey H. Winick
Jeffrey H. Winick
Jeffrey H. Winick is a Partner at Harris Winick Harris LLP in Chicago, where he concentrates his practice in complex commercial litigation, construction litigation, and construction transactions. He is a member of the Society of Illinois Construction Attorneys, was named the Chicago Construction Litigation Lawyer of the Year by Best Lawyers in 2014, and has been recognized as one of the top practitioners in the field by Leading Lawyers, Super Lawyers, and Chambers USA. Mr. Winick received his B.A. summa cum laude from the University of Iowa and his J.D. from the University of Michigan Law School.
Construction Dispute Litigation (ARCHIVED 2013 EDITION)
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