Construction Law

Fox Swibel’s Chambers-ranked Construction Law Group specializes in managing and resolving complex construction claims, obtaining insurance coverage for policyholder clients, drafting and negotiating construction and design agreements, and risk management counseling. The Group’s practice is nationwide, representing clients on a wide range of public and private projects across all industries, including aviation, building, education, hospitality, infrastructure, manufacturing, medical, power and energy, sports and entertainment, telecommunications, and transportation.

COMPLEX CONSTRUCTION CLAIMS

The Construction Law Group at Fox Swibel has extensive experience evaluating, managing, and litigating claims arising out of delays, construction and design defects, change order disputes and out-of-scope work, differing site conditions, delayed and deficient payments, product defects, code violations, bid and award disputes, mechanics liens, and a wide range of contractual issues common in the construction industry. The Group provides pre-claim support and works with its clients’ project teams during construction to develop claims and advise on strategic issues that may impact claims and defenses. When claims mature into litigation, our attorneys are proactive in seeking early resolution, but when settlement is not possible, they are unrelenting and cost-effective trial attorneys.

Project Delay Claims

The Group has substantial experience investigating, evaluating, and litigating claims for delays, on behalf of both plaintiffs and defendants. The Group is well-versed in all issues related to the successful management of delay claims, including:

CPM schedules and scheduling methodology
Identification of excusable vs. non-excusable delays
Assessing concurrent delays vs. critical delays and the impact of each on the client’s claim or defense
Understanding which party owns the float and how this affects the posture of the claim
Acceleration, including evaluation of when it is necessary and when it is compensable
Claims for disruption and loss of productivity / efficiency
Identification of force majeure events and evaluation of how they impact the schedule and claims for compensation
Cumulative impact claims

We have relationships with nationally renowned forensic delay and damages experts with whom we regularly work to prosecute and defend claims arising out of delays to the project schedule.

Construction and Design Defect Claims

The Construction Law Group is also known for handling claims arising out of alleged construction and design defects on all types of projects around the country. The Group has handled defect claims arising out of architectural, civil, electrical, geotechnical, mechanical, and structural elements in the aviation, building, education, hospitality, infrastructure, manufacturing, medical, power and energy, sports and entertainment, telecommunications, and transportation industries. As we regularly handle significant defect claims throughout the United States, we have developed an extensive network of highly qualified consultants and experts in a wide range of technical specialties who we regularly consult with and retain in connection with our clients’ claims.

The Group’s work prosecuting and defending defect claims coalesces with its insurance recovery work, and the Group is adept at understanding how to utilize and activate insurance to resolve all types of defect claims.

Pre-Claim Support and Litigation Avoidance

The Group regularly provides claim support to clients prior to formal litigation or arbitration, often while the project is still under construction. This includes evaluating and preparing claims, engaging and working with consultants to support those claims, reviewing and advising on change orders, providing direction on claim notice procedures and other contractual matters, and developing project strategies and document control tactics to support the client’s claims and mitigate claims anticipated by third parties. The Group also works with clients in the pre-suit stage to develop and implement settlement strategies to resolve disputes and avoid litigation where possible. Lawyers in the Construction Law Group understand not only the legal issues facing their clients, but also the business issues, allowing them to provide advice that is pragmatic and cognizant of the realities of their clients’ operations.

Litigation and Arbitration of Complex Claims

The Group’s strategy for claim resolution is proactive, and resolution strategy is the first step in any litigation or arbitration. We focus on early claim assessment and work with our clients to evaluate timelines and strategies for resolution based on that assessment, rather than defaulting to a model of extensive claim work-up with the hopes of a mediation in the distant future. Our approach results in claim resolution that is intentional, efficient, and cost-effective.

When resolution is not possible, however, we are zealous advocates with substantial experience litigating complex construction disputes to conclusion, in both state and federal courts around the country, as well as in arbitration. We understand how to litigate construction claims to achieve results while minimizing costs. This means we work with our clients and our trusted network of industry experts early in the process to value claims and narrow topics for discovery. This approach results in a more efficient litigation process, increased opportunities for settlement, and better results at trial.

Contract Drafting and Negotiation

Fox Swibel’s Construction Law Group has extensive experience drafting and negotiating construction, design, and related agreements for all types of construction projects across the United States. Critical to the Group’s successful transactional practice is its extensive experience managing and resolving claims arising out of troubled projects. This experience gives the Group the unique perspective necessary to identify the actual risks in a construction deal and to focus each negotiation on the provisions most critical to our client’s management of those risks.

The Group is well-versed in and has extensive experience drafting and negotiating all types of agreements for any size construction project, including:

Construction contracts
General conditions
Construction manager agreements
Design-build agreements
Preconstruction services agreements
Engineering, procurement, and construction (EPC) agreements
Architectural, engineering, and other professional services agreements
Owner’s representative, development manager, and project manager agreements
Subcontractor and subconsultant agreements
Furniture, fixtures, and equipment (FF&E) agreements
Joint venture agreements

The Group routinely drafts all ancillary forms associated with these agreements, including lien waivers, change order forms, construction change directive forms, schedules of values, letters of intent, notices to proceed, and guarantees and warranties, among others.

Insurance Recovery

Understanding and triggering insurance coverage is a critical aspect of complex construction claims work. Fox Swibel’s Construction Law Group has experience with all types of insurance, including commercial general liability insurance, owner-controlled insurance programs, contractor-controlled insurance programs, professional liability insurance, project-specific insurance, subcontractor default insurance, builder’s risk insurance, umbrella and excess policies, and bonds. Our lawyers understand how to evaluate the applicability of these coverages, when they should be activated, and the types of information carriers require to contribute funds to claim resolution.

When insurance carriers decline coverage for our clients, the Group has substantial experience representing our clients in actions against carriers to obtain coverage for construction and design defect claims. Our efforts have secured millions of dollars of coverage for our policyholder clients, often from other parties’ carriers at no cost to the client.

Risk Management Counseling

Effective risk management requires a clear understanding of the insurance programs that owners, contractors, subcontractors, and design professionals use to protect themselves and each other, as well as the key contract provisions that relate to these insurance programs and how these provisions relate to one another. Risk management counseling is integrated into all aspects of the Group’s practice, and we are often asked by clients to provide advice on strategies for mitigating risk in different scenarios. Our team’s deep understanding of insurance coverage in the construction industry, coupled with extensive complex claims and transactional experience, allows it to provide practical and cohesive advice for reducing risk.

General Counsel Representation

We act as general counsel to our construction industry clients by offering Fox Swibel’s comprehensive “big-law” boutique services from talented, experienced practitioners in complementary areas such as corporate, real estate, tax, employment, banking, and corporate finance. Fox Swibel’s broad capabilities allow us to address the full range of our construction clients’ needs, whether they arise out of issues in the field or at the office.