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August 2014

Construction Law Update

Third Quarter 2014

Gordon & Rees’s Construction Group is pleased to publish the latest issue of our Construction Law Update, a quarterly take on trends of interest to design professionals, contractors, and developers throughout the country.

In this edition of the Construction Law Update, we discuss potential fracking causes of action in Illinois; a Florida opinion that addresses an architect’s standard of care and the “first cost” defense; and the enforceability of limitation of liability clauses in pre-2007 professional contracts in Colorado.

Gordon & Rees’s Construction Group looks forward to bringing you this essential analysis on the impact of legal changes in the industry. Plus, Gordon & Rees’s Construction Law Blog ( enhances our quarterly newsletter to bring you additional timely and insightful information.

  1. What the Frack Is Happening in Illinois?

  2. New and Recently Revisited Florida Law Affecting Construction Disputes and Possible Implications

  3. Limitation of Liability Clause in Pre-2007 Professional Contracts Enforceable

  4. Construction Results

  5. About Gordon & Rees's Construction Group

I. What the Frack Is Happening in Illinois?
By Thomas G. Cronin

More than a year has passed since Illinois enacted a law allowing hydraulic fracturing, or “fracking,” in the state.  Due to the volume of comments and concerns with the proposed regulations, however, the practice has been put on hold while the Illinois Department of Natural Resources (IDNR) sorts through and finalizes the methods and rules by which the industry must abide. 

When the moratorium on fracking is eventually lifted, the longstanding debate regarding environmental issues will once more ramp up, including concerns involving water contamination, air pollution, noise pollution, and increased seismic activity.  However, the battles over such concerns and claims of loss or injury will ultimately be fought in the courtroom, and there seems to be a variety of potential causes of action that fracking may incite. 

To read a full, expanded version of this article, click here.










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II. New and Recently Revisited Florida Law Affecting Construction Disputes and Possible Implications
By Lynn Maynard Gollin

In March 2014, Florida’s Fourth District Court of Appeal issued The School Board of Broward County, Florida v. Pierce Godwin Alexander & Linville, 137 So. 3d 1059 (Fla. 4th DCA 2014), an opinion that addresses two legal issues of interest to parties involved in construction disputes – an architect’s standard of care and the “first cost” defense.

Architect’s Standard of Care

As a matter of law, Florida courts have uniformly applied a standard of care upon professionals that requires that the professional render services in a manner “used by similar professionals in the community under similar circumstances.” Moransais v. Heathman, 744 So.2d 973, 976 (Fla. 1999). See also, Pierce Godwin, 137 So. 3d at 1065 (and cases cited therein). An architect owes a duty of care to the client to render design services that are in compliance with applicable laws, including local ordinances. Id. See Robsol, Inc. v. Garris, 358 So. 2d 865, 866 (Fla. 3d DCA 1978).

To read a full, expanded version of this article, click here.

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III. Limitation of Liability Clause in Pre-2007 Professional Contracts Enforceable
By Ross A. Hoogerhyde

The Colorado Legislature enacted the Homeowner Protection Act (HPA), C.R.S. § 13-20-806(7), in response to unequal bargaining power between builders/developers and home buyers.  The Legislature was concerned that builders/developers included onerous clauses in form home purchase agreements that limited their liability for any homeowner dispute.  Homebuyers, left with the choice of agreeing to the limitation or not purchasing the home, would agree to limit their liability, often without reading or understanding the agreement.  Then, years later, the builder/developer would rely on the limitation of liability to defeat homeowner claims.  

The HPA addresses this concern by voiding any express waiver of or limitation on the legal rights and remedies provided by Colorado’s Construction Defect Reform Action as against public policy.  The HPA was enacted on April 20, 2007, and applies to any action filed after its enactment. 

To read a full, expanded version of this article, click here.

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IV. Construction Results

Gordon & Rees Las Vegas office managing partner Robert E. Schumacher and senior counsel Liane S. Binowitz won the complete dismissal with prejudice of a personal injury lawsuit for their engineering firm client. The suit arose out of the alleged defective design of a public roadway.

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V. About Gordon & Rees's Construction Group

Gordon & Rees's Construction Group consists of more than 80 lawyers covering the nation in 31 offices. In September 2013, the firm opened a Raleigh, N.C., office and recently launched offices in Charleston, S.C., and Oakland, Calif.

Gordon & Rees’s construction attorneys focus their practice on the comprehensive range of legal service required by all participants in the construction industry – architects, engineers, design professionals, design joint ventures, owners, developers, property managers, general contractors, subcontractors, material suppliers, product manufacturers, lenders, investors, state agencies, municipalities, and other affiliated consultants and service providers.

We serve clients who design, develop, or build all types of structures, including commercial buildings, single and multifamily residential projects, industrial facilities, universities, hospitals, museums, observatories, amusement parks, hotels, shopping centers, high-rise urban complexes, jails, airports, bridges, dams, and power plants. We also have been involved in projects for tunnels, freeways, light rail, railway stations, marinas, telecom systems, and earth-retention systems. Our experience includes private, public, and P3 construction projects.

If you have questions about this issue of the Construction Law Update or our nationwide construction practice, click here to visit our practice group page or contact  Mark Russell or George Milionis.

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