In Part One, I discussed the general purpose and benefits of subrogation and considerations in determining whether a waiver of subrogation may be advantageous or harmful to certain contracting parties to a construction contract. Even where the contracting parties agree to include a waiver of subrogation, a form waiver of subrogation may not be appropriate […]
Waiver of Subrogation Provisions in Construction Contracts – Part Two
Waiver of Subrogation Provisions in Construction Contracts – Part One
Larry Bowman and I recently wrote a 44-page white paper on “The Ins and Outs of Waivers of Subrogation.” Larry presented our paper at the 34th Annual Texas Construction Law Conference sponsored by The Construction Law Foundation of Texas and The Construction Law Section of the State Bar of Texas, which was held virtually/online in […]
Subrogation Claims and Arbitration Clauses in Construction Contracts
In Texas, while an insurer can assert a subrogation claim independently of its insured, the insurer still stands in the shoes of its insured, meaning the insurer’s claims are limited to those the insured could bring and are subject to the same defenses. A common defense when a loss involves a construction project is that […]
Residential Construction Defect Case Law Update: Homeowners Not Entitled to Attorney and Expert Fees
Last year, the First Court of Appeals serving the Houston, Texas area held that the Texas Residential Construction Liability Act (RCLA) “does not permit a plaintiff to recover attorney or expert fees in the absence of an underlying cause of action providing for the recovery of such fees.” (Mitchell v. D. R. Horton-Emerald, Ltd., 579 […]
Executive Order GA 14 – Summary for Construction Services
Governor Greg Abbott issued a new Executive Order GA 14 relating to statewide continuity of essential services and activities during the COVID-19 disaster. The executive order supersedes any conflicting order issued by local officials in response to the COVID-19 disaster to the extent that such a local order restricts essential services allowed by the executive […]
Impacts on the Construction Industry from Texas’ 86th Legislative Session (Part 3 of 3)
Right to Repair Statute for Public Buildings/Works As of June 14, 2019, with certain exceptions, a governmental entity asserting a claim for damages to real or personal property caused by an alleged construction defect in a public building or public work against a contractor, subcontractor, supplier, or design professional must comply with the a new […]
Impacts on the Construction Industry from Texas’ 86th Legislative Session (Part 2 of 3)
Procurement of Contingent Fee Contracts for Legal Services by School Districts and Other Political Subdivisions Subchapter C of the Professional Services Procurement Act (Chapter 2254 of the Texas Government Code) has been revised to establish requirements for the procurement of contingent fee contracts for legal services by political subdivisions, including school districts. The prior version […]
Impacts on the Construction Industry from Texas’ 86th Legislative Session (Part 1 of 3)
Once again, reforms to Texas lien law were not enacted into law following the 2019 Texas legislative session. Bills seeking to shorten the statutes of repose applicable to claims against design professionals and contractors and to broadly limit a contractor’s liability for defects in plans and specifications also failed to pass. However, a chapter limiting […]