Litigation - Construction Definition
Construction Litigation involves the representation of stakeholders involved in a governmental, commercial, or residential construction project. Stakeholders are typically owners, contractors, subcontractors, material suppliers, architects, engineers, construction managers, construction lenders, developers, investors, insurers, and/or bonding companies.
Construction lawsuits include a variety of claims, although most are grounded in breach of contract, negligence, and/or professional negligence. Construction litigation attorneys typically prosecute or defend claims for:
- professional negligence of design professionals (both architects and engineers)
- claims for defective workmanship (contractors and subcontractors)
- claims for defective products (material suppliers)
- claims for delay (caused by the owner, the owner’s representative(s), the contractor, and/or a subcontractor)
- payment claims (both claims for payment of sums promised in the construction contract and claims for the payment of additional sums due to changes in the scope of the work)
- the enforcement of mechanic’s liens (contractors, subcontractors, and material suppliers)
- claims made against payment bonds issued by surety companies to assure the payment of sums due subcontractors and others
- claims made against performance bonds issued by surety companies to assure completion of the work
The typical stakeholder plaintiff in a construction dispute seeks monetary damages for economic loss suffered as a result of the defendant’s unlawful conduct (breach of contract, negligence, etc.). Some construction disputes involve claims brought by construction workers or third-parties as plaintiffs seeking damages for personal injuries caused by unsafe workplaces and working conditions. Those cases require an analysis of the workplace safety rules and regulations promulgated by the Occupational Safety and Health Administration (OSHA) in addition to the common law standards of care for workers and practices in particular construction fields.
Construction claims are litigated in a variety of forums and can be litigated in federal and state courts. Additionally, federal and state courts of claim or claims commissions may have exclusive jurisdiction over government projects. Arbitration is often the required forum for private projects because construction contracts typically require mandatory arbitration, administered by a recognized provider such as the American Arbitration Association, pursuant to specific rules promulgated by the arbitration service provider. Many construction contracts also require some form of mandatory mediation as an express precondition to the institution of litigation or arbitration.