Clients & Friends,
Here is an interesting recent case on liquidated provided by John Perten of Sheehan Phinney Bass & Green PA.
decision recently handed down by the MA appeals court, the Court reiterated the
analysis on how to determine whether a liquidated damage clause will be upheld
as enforceable or stricken down as an unenforceable penalty. Though this case does not
break any new ground, it is a good reminder that if liquidated damage
clauses are to be enforceable, you must look to the time of contracting to determine
whether the potential damages are difficult to ascertain and whether the sum included within the Contract as calculated represents a "reasonable forecast of damages expected to occur in the event
of a breach."
The case involves the breach of a development agreement. Please click on the attachment below for the courts decision on the Nantasket Beach front Condominiums, LLC v. Hull Redevelopment
Authority case. It is well worth the read.
Gary Brierley is a well know geotechnical and tunneling expert who I had the pleasure of working with years ago. On July 18, 2015 Gary was interviewed by CNN regarding the El Chapo Escape
Tunnel. Fascinating. Can you spot the media snafu? Let me know.
Gary is available on a consulting basis to assist in differing
site conditions and heavy civil claims resolution. Here is a little bit
about how he can help. . .
Claims, and Dispute Resolution
Dr. Brierley can assist with forensic engineering services that
require expertise in geotechnical engineering, heavy construction, tunneling
and trenchless construction. He believes that a good forensic expert is a
detective, one who patiently searches for evidence and reconstructs events in
order to reach unbiased conclusions that will stand the scrutiny of peers and
cross examination by attorneys. Dr. Brierley follows a disciplined approach;
determining the absence of a conflict of interest, accepting the assignment,
carefully assembling and reviewing pertinent information, proactive analysis,
and development of conclusions and opinions.
Dr. Brierley has served as a mediator and arbitrator and
has testified as an expert witness on numerous occasions. He has also served
on Dispute Review Boards. From this experience, Dr. Brierley fully
understands and embraces the role of a forensic engineering expert as
an unbiased provider of opinions and facts to the persons entrusted to
make final judgments. He also understands and embraces the importance of
explaining complex scientific and engineering concepts in simple, direct
language that can be understood by lay persons and finders of fact not familiar
with underground construction.
Brierley has provided the following services on behalf of project owners,
engineers, contractors, and attorneys.
- Document and Data Analysis
- Failure Analysis
- Geologic/Hydrogeologic Evaluations
- Evaluation of Remedial Solutions
- Peer Review
- Construction Dispute Resolution
- Expert Witness Testimony
- Technical Advisor
- Services as Mediator and Arbitrator
Dr. Brierley is always happy to provide a second
opinion about a design or a contract document, to conduct a pre-bid evaluations
for contractors, to serve on a board of consultants, or participate in a claim
discussion. Click here
for Dr. Brierley's resume and
publications. For more information on Doctor Mole Incorporated please
visit out website at www.drmoleinc.com.
On occasion I come across some interesting articles that are worth forwarding. Attached is one such article from a recent case in which the General Contractor failed to prevail on his differing site conditions claim due to its use of penny bidding. I thought you would find this interesting.
Stay tuned for Charlie & Bill's blog on common sense approaches to construction issues that arise every day on every project.