Laurie & Brennan Participates in National Rebuilding Day!

Posted May 12, 2017 by laurieandbrennan
Categories: Construction Law

On April 29, 2017, two of Laurie & Brennan’s Partners, Bill Toliopoulos and Erin Krejci, would not let a little rain stop them from participating in National Rebuilding Day organized by Rebuilding Together Metro Chicago.

EK BT Build

National Rebuilding Day is an annual event in which volunteers work together to renovate homes belonging to the elderly, disabled, and low-income homeowners in order to make them warm, safe and dry, improve accessibility, and provide improvements that will leave the home a healthier, brighter, more pleasant place to live.

Erin and Bill enjoyed volunteering alongside colleagues from the Construction Financial Management Association (CFMA) to improve the home and yard of a lovely woman in Robbins, Illinois and are looking forward to continuing to support the Rebuilding Together Metro Chicago team and their worthwhile mission.

L&B PARTNER DANIEL BRENNAN NAMED FELLOW OF THE AMERICAN COLLEGE OF CONSTRUCTION LAWYERS

Posted May 5, 2017 by laurieandbrennan
Categories: Construction Law

Dan Brennan

Dan Brennan, Co-founder

Laurie & Brennan is proud to announce that founding partner Dan Brennan was admitted as a Fellow of the American College of Construction Lawyers at its Annual Meeting in March, 2017.  The American College of Construction Lawyers (“ACCL”) is an invitation-only organization of the most accomplished construction lawyers in the United States.  The construction lawyers in ACCL have demonstrated “skill, experience and high standards of professional and ethical conduct in the practice, or in the teaching, of construction law,” and are dedicated to excellence in the specialized practice of construction law.  Based on his 26 years of practice in the area of construction law and service to the profession, Dan was honored with this latest accolade.  On his election to ACCL, Dan commented, “It is an honor and more than a little humbling to be part of this esteemed group of construction lawyers.  I owe a debt of gratitude to many lawyers who have helped me along the way.  I hope I will be able to mentor others who will be honored down the road with membership in this wonderful organization.”

Quantum Meruit A Limited Refuge for Contractors

Posted April 19, 2017 by laurieandbrennan
Categories: Construction Law

pipesIn the recent Illinois Appellate Court decision in Archon Construction Company, Inc. v. U.S. Shelter, L.L.C., et al., the Court clarified when a quantum meruit claim is proper in a construction dispute. The Court held that if an express contract governs the same general subject matter as the challenged work, a quantum meruit claim is barred as a matter of law.

In Archon, U.S. Shelter hired Archon Construction Co. to install a sanitary sewer system in the city of Elgin, Illinois. The contract incorporated plans and specifications, which called for installation of PVC or ductile iron piping. The contract also required that prior to completion, the city approve and accept the system. Archon submitted its plans to U.S. Shelter, which included the use of PVC pipe. U.S. Shelter approved the plans and Archon commenced construction. After Archon completed its work, the city undertook a televised visual inspection of the system and determined that repairs were needed before it would accept the system. Specifically, the city required that the repairs include “replac[ing] with ductile iron the main, T’s and service lines up to a depth of 10’.” This was the first time that ductile iron was required on the project.

Archon performed the repairs and replacement work and sent U.S. Shelter a bill totaling $247,432.41 for its time and materials performing the additional work required by the city. U.S. Shelter refused to pay and this lawsuit ensued. Initially Archon pursued a multi-count complaint against U.S. Shelter, including counts of breach of contract for failure to pay for extra work or, in the alternative, quantum meruit. Archon eventually voluntarily dismissed its contract-based claims for extra work and pursued only quantum meruit.

In doing so, Archon tried and failed to take advantage of a path to recovery for those who perform work without the protections of an express contract. Quantum meruit is the refuge of plaintiffs who perform work for which no express contract exists. It is axiomatic, therefore, that the existence of an express contract regarding the work performed precludes any possibility of success on a quantum meruit claim.

Archon pursued its quantum meruit claim on the theory that the work it performed – namely the installation of ductile iron instead of its previously approved PVC pipe – was outside the terms of its contract with U.S. Shelter. In short, Archon attempted to walk the thin line between work being “outside the scope of the contract” (one of the elements for an extras claim) and there being no express contract governing the work.

The Illinois appellate court made short work of this semantic maneuvering by articulating a clearer test for evaluating a quantum meruit claim when an express contract exists between the parties: does the express contract govern the same general subject matter as the challenged work? If the answer is yes, a quantum meruit claim is barred as a matter of law. Here, the work performed related to the same general subject matter as the work described and specified in the express contract – namely the installation of an acceptable sanitary sewer system. The fact that Archon had to replace previously approved and installed PVC pipe with ductile iron was arguably an “extra” but not outside the purpose of the express contract: delivering an acceptable sanitary sewer system.

This case indicates that courts are hesitant to allow quantum meruit actions to proceed when a party under a contract performs a service that is not precisely covered by the contract, but is within the general ambit of the contract’s purpose. Plaintiffs are most likely to prevail under quantum meruit when either (1) no express contract exists between the parties or (2) an express contract exists but explicitly excludes a type of work that plaintiff ends up performing during the course of the job. Thus, courts generally will not entertain extra-contractual claims where an express contract governing the work exists unless the court has a good reason to do so, like contractual exclusion of a specific type of work that a party ends up performing, or a party performing work wholly unrelated to the underlying contract.

Laurie & Brennan, LLP Partner, Ryan Hiss, Featured in Leading Lawyers Network Magazine

Posted March 9, 2017 by laurieandbrennan
Categories: Construction Law

Ryan Hiss

Ryan Hiss, Partner

Ryan Hiss, partner at Laurie & Brennan, LLP was featured in Leading Lawyer Magazine – Real Estate, Construction, and Environmental Health Edition. When mulling over his answer to the question of what facet of construction law is his favorite he has trouble settling on just one – from arbitrations to trials and contracts to fielding questions from clients he enjoys them all. At the end of the day, Ryan most values what lies at the core of his practice; his relationship with his clients. “Being a problem solver, somebody who can help a client through an issue so they can continue on with their businesses as successfully as possible – to me, that is kind of neat, to be somebody they want to call and figure things out,” Ryan says of those relationships.

Beyond his many accolades, it is this emphasis on developing profound personal relationships with his clients that sets him apart as an attorney and makes him such a valuable member of the Laurie & Brennan team. In his first interactions with Dan Brennan and Ty Laurie back in 2004, they were actually opposing counsel in what was the most high-stakes case of Ryan’s career to that date. He remembers his first encounter with his future co-partners thus, “They were aggressive but not what I’d call overly aggressive. There was a toughness to their position and their negotiating style that I’d say was a reasonable toughness. It wasn’t like they were being tough about issues they shouldn’t be tough about, but you could tell this was going to be quite a battle. So that was my initial impression, but also that you could get along with them well.”

Ultimately, one of the biggest impressions made on Ryan by Ty was his emphasis on family values; Ty wrapped up a meeting one day by saying. “I’ve got to catch a train to go coach my kid’s baseball practice.” When Ryan joined Laurie & Brennan in 2016 he did so on a similar condition – he’d have to occasionally leave early to coach his daughters’ softball team. Ryan is now happy to contribute the experience of his 21-year career as an ace construction attorney to the firm, and Laurie & Brennan is excited that he is a member of the team.

Laurie & Brennan, LLP is proud to have one of our partners featured so prominently in Leading Lawyers Network Magazine as it is one of the most trusted and respected resources to locate reputable, experienced lawyers.

Laurie & Brennan, LLP Co-founders Honored As Top 10 Construction Lawyers in Illinois 2nd Year in a Row

Posted March 9, 2017 by laurieandbrennan
Categories: Construction Law

We are proud to announce that once again Laurie & Brennan, LLP has the prestigious distinction of having two attorneys in the Top 10 Construction Lawyers in the State of Illinois in Leading Lawyer Magazine – Real Estate, Construction, and Environmental Health Edition. After an annual state-wide survey and ongoing meetings, discussions and research of their peers, followed by a sophisticated review and vetting process by members of the Leading Lawyers Advisory Board in Illinois, it has been determined that Ty Laurie and Dan Brennan rank 1 and 8 respectively. This honor has been earned by fewer than five percent of all lawyers licensed to practice in Illinois.

Ty’s representative matters include high-profile sports facility disputes, capital improvement and replacement projects for hospitals and medical facilities and construction of skyscrapers. He has served as construction counsel or provided construction law advice for several Fortune 500 companies. Besides trying cases to verdict, he counsels on project delivery methods, negotiates contracts, assists in the procurement of insurance, provides critical dispute avoidance services and advocates in mediations and arbitrations. Consistently lauded for his achievements in construction law, Dan concentrates his practice on advising owners, designers and contractors on risk management in the construction process; prosecuting and defending construction claims including professional negligence, cost overrun, and delay claims; negotiating and drafting construction and design contracts for architects, engineers and owners; and advising clients with respect to design and construction of accessible facilities Title III of the Americans with Disabilities Act and the Fair Housing Act.

Ty and Dan head the team at Laurie & Brennan, LLP, a boutique construction law firm with one of the largest construction law groups of any firm in Illinois. Among our services we provide comprehensive legal representation with respect to major local, regional, national, and international construction projects. Our construction attorneys handle all legal aspects of construction projects from inception through completion, including contract negotiation, team building, avoiding and/or resolving disputes, general legal consultation, and claims prosecution and defense.

Laurie & Brennan is equipped to serve every construction client’s need – from sports stadiums to industrial properties and oil refineries. If you have passed Soldier Field or Ann & Robert H. Lurie Children’s Center in Chicago, the Prudential Center in Newark, the Lincoln Financial Field in Philadelphia, or One World Trade Center in New York, to name just a few projects, you have seen the work of Laurie & Brennan’s inimitable team.

LAURIE & BRENNAN ANNOUNCES NEW PARTNER – KENDALL WOODS

Posted January 9, 2017 by laurieandbrennan
Categories: Construction Law

Tags: ,

logo_color_jpgLaurie & Brennan, LLP is pleased to announce that Kendall Woods has been named its newest partner, effective January 1, 2017.  Kendall joined Laurie & Brennan in 2011 and has demonstrated exceptional skills in litigating, arbitrating and mediating construction disputes.  Kendall concentrates her practice on construction law, and also has substantial experience in commercial, product liability, premises liability, and copyright and trademark litigation at both the trial and appellate level.  She represents and counsels owners, developers, construction managers, contractors, subcontractors, tenants, and business owners in both litigation and alternative dispute resolution.  Kendall is actively involved in the American Bar Association Forum on Construction Law, serves on the board for the National Association of Women in Construction, Midwest Region, Chicago Metro Chapter and is an adjunct professor at Loyola University Law School teaching legal writing.   Kendall has also been recognized as an Illinois Rising Star in Super Lawyers Magazine.

Laurie & Brennan values Kendall’s dedication and excellent client service and congratulates her on her election to partner.

Subrogation Claims Up In Smoke Following Casino Fire

Posted December 14, 2016 by laurieandbrennan
Categories: Construction Law

gikvy_ks9vq-michal-parzuchowskiIn Empress Casino Joliet Corporation, et al., v. W.E. O’Neil Construction Co.et al., the Appellate Court of Illinois recently held that a construction contract’s subrogation waiver prevented three insurance companies and Empress Casino Joliet Corporation (“Empress”) from seeking nearly $85 million from contractors, subcontractors and an architect after a fire erupted during a renovation project.

Empress began renovating its Joliet, Illinois casino in 2008. During the renovation, a welder working for the HVAC subcontractor sparked cooking grease and other combustible residue in ductwork above the casino’s kitchen.  The spark quickly spread and destroyed large sections of the casino property. Following the fire, three insurance companies paid more than $80 million for the loss.

Empress and the insurers as subrogees sued the general contractor and HVAC subcontractor, alleging among other things that they did not take proper safety measures to prevent the fire. Claims were also asserted against the project’s architect, the mechanical engineer, and a subcontractor, for not providing a sufficient sprinkler and fire protection system. Empress added its cleaning company, Averus, to the lawsuit, contending that Averus failed to properly clean the ductwork of the combustibles that ignited and caused the fire. Empress’s complaint alleged, among other things, negligence, breach of contract, and willful and wanton misconduct against the defendants. The defendants moved for summary judgment.  The defendants contended that the plaintiffs waived their subrogation rights under the construction contract, and the trial court agreed. Empress and the insurance companies appealed.

The appellate court agreed with the trial court on its central ruling: The plain language of the contract required Empress to insure the project and waive its subrogation rights against the architect, general contractor and its subcontractors. In particular, the contract required Empress to purchase all-risk property insurance covering “without limitation, insurance against the perils of fire,” and Empress to “waive all rights […] for damages caused by fire or other causes of loss.”  Elsewhere in the contract, Empress and the general contractor waived all rights against “(1) each other and any of their subcontractors […] and (2) the Architect, Architect’s consultants […] and any of their subcontractors […] for damages caused by fire or other causes of loss […]” to the property during the renovation.

The appellate court determined that “the parties here agreed that any casualty loss resulting from a fire would be borne solely by Empress’s property insurance and that accordingly Empress expressly waived all claims against the defendants arising from such a loss covered by such insurance.” Thus, Empress and the insurance companies could not bring an action against the general contractor, the mechanical engineer, the architect, or any downstream subcontractors or consultants for damages from the fire.

The appellate court rejected the plaintiffs’ argument that the waiver was an exculpatory clause and the allegations of willful and wanton misconduct dictated that, as a matter of public policy, such an exculpatory clause should not be enforced in the face of such allegations.  Subrogation clauses are not exculpatory clauses that “immunize the wrongdoer,” but instead merely shift the risk of loss and the costs of insuring loss between parties negotiating a contract. The parties involved in the renovation, according to the court, freely contracted to place the risk of loss by fire on Empress, regardless of how that fire started.

The appellate court also found that the subrogation waiver trumped the general contactor’s duty to indemnify Empress.  The appellate court’s reasoning  was premised on two main points: first, the subrogation waiver was tied to Empress’s property insurance whereas the indemnity provision was tied to a separate type of coverage, the general contractor’s liability insurance; and, second, the express language of the subrogation waiver supersedes the indemnity provision when it states that the waiver “shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, […] and whether or not the person or entity had an insurable interest in the property damage.”

Averus—the cleaning company— did not fare so well.  The appellate court found that the subrogation waivers did not apply to Averus because Averus was not a party to (or subcontractor under) the construction contract. Instead, Averus worked for Empress under a preexisting and separate oral contract it had directly with the casino, rather than with the general contractor. Moreover, the vice president for Averus who negotiated the oral contract admitted during his deposition that he never discussed or contemplated a subrogation waiver. Empress thus never waived subrogation rights in its oral agreement with Averus.

 


%d bloggers like this: