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 […]
Subrogation Claims and Arbitration Clauses in Construction Contracts
Recent Legislative Changes to the Certificate of Merit Requirements in Texas
This is a follow-up to our prior post summarizing the Certificate of Merit Requirements in Texas. In this post, we explore recent legislative changes to the certificate of merit requirements and the application of such requirements to third-party claims. Legislative Changes in Affiant Requirements In June 2019, the Texas Legislature amended the certificate of merit […]
Certificate of Merit Requirements in Texas
In order to assert a professional negligence claim in Texas against an architect, professional engineer, registered landscape architect, or registered professional land surveyor, the claimant must file a certificate of merit prepared by an outside expert when initiating a lawsuit. The purpose of this statutory requirement is to discourage frivolous claims that serve to increase […]
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 […]
COVID-19 Guidance for the Construction Industry in Harris County
As the number of COVID-19 cases reach 45,000 in Harris County as of July 13, 2020, which includes the city of Houston, Governor Greg Abbott has halted additional reopening phases but has been reluctant to extend the “stay home, work safe” order issued for the county in March. Abbott’s reluctance in this regard has little […]
OSHA Law: Protecting Your Employees and Your Company from Employee Misconduct
This article written by David Fisk and Darren Harrington, is a feature article in the Summer 2020 issue of the IN FOCUS Magazine published by TEXO, the Construction Association. The Occupational Safety and Health Administration (OSHA) is tasked with ensuring safe working conditions by setting and enforcing standards and providing training, outreach, education, and assistance. […]
OSHA’s New Construction Webpage Provides Specific Guidance for Employers in the Construction Industry
While the media is currently distracted from the Coronavirus, the economy is still struggling to reopen from the shut downs Coronavirus caused. As businesses reopen, employers are obligated under the Occupational Safety and Health Act of 1970 (“OSH Act”) to provide a safe workplace for their employees. Failure to consider and take measures to mitigate […]
The Handshake Agreement Should be a Thing of the Past…
As scholars embark on a quest to define the parameters of an acceptable handshake/handshake equivalent and American businesses return to work with a new normal, the handshake agreement should disappear in its entirety from the continuation or start of all commercial construction projects. Jobsite safety, jobsite interaction, screening/testing, the quarantine of sick or exposed workers, […]
Coverage for Business Losses – Property Damage No Longer Required?
Most commercial property insurance policies include insuring agreements that require direct physical loss or damage to covered property as the triggering event. Without establishing direct physical loss or damage, a policyholder traditionally cannot meet its burden to trigger coverage for the economic loss of business income as a result of closing its doors. Today, with […]
Three Factors to Consider When Including a Liquidated Damages Clause in Your Texas Construction Contract
It is common in Texas to find construction contracts wherein the parties agree to damages in advance of a breach of the construction contract. These are liquidated damages and a provision that contains these damages is known as a liquidated damages clause. Despite how common these clauses are, not all of them are enforceable. In […]