Baker & Daniels believes in an economics-first approach to construction disputes. This means we encourage clients at the "front end" to analyze the economic realities inherent in every dispute. Often times, this involves a straightforward assessment of the probability of a favorable and unfavorable results, projections of legal fees and related expenses, prospects for recovering costs from opponents and recognition of the fact that even a litigation “win” can sometimes result in a monetary loss. We then work within those realities to bring about, as best as we are able under the particular circumstances, the client’s objectives. Our range of services include:
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In construction defects cases, we are skilled in preserving evidence, developing a remediation protocol and identifying potential targets for recovery. We are experienced in the challenges of choreographing these activities with active or anticipated litigation.
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With delay and disruption claims, we work with clients and/or consultants to expeditiously quantify damages figures, or if defending, to separate the “wheat” from the “chaff” within opponents’ claims.
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With construction insurance cases, we look beyond obvious policy interpretations to potential “hidden” sources of coverage that may make the client whole.
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The construction business runs on narrow margins. When companies become insolvent during a project, our lawyers are experienced in counseling clients through the process of completion, in addressing or removing mechanic's liens and pursuing claims under payment or performance bonds.
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Procedural obstacles can make or break a bid protest. We are experienced in analyzing the strengths and weaknesses of a potential bid protest, and have both asserted and defended against such claims.
Construction Delay and Disruption
The recipe for handling delay and disruption claims successfully can be more than a little tricky. It requires an understanding of scheduling and related industry practice, a large dose of technical and legal understanding and more than a pinch of common sense. Contractual notice provisions can be either swords or shields, depending on your perspective. Recognition of the delay or disruption can itself be difficult – knowing what to do when it does is critical. Selection of the right experts to assist efficiently in identifying and documenting such things as compensable or concurrent delay or interference generated disruption and measuring their impact is crucial. It helps to work with someone who has been there before. Baker & Daniels construction lawyers have.
Surety Litigation and Insolvency
Perhaps the single greatest challenge to a construction project can be when a key party defaults or goes out of business. When that happens, it helps to have lawyers who know exactly what to do – whether that means asserting a claim on a payment bond on behalf of a subcontractor, negotiating a project takeover agreement with a performance bond surety or navigating the sometimes perplexing waters of subcontractor default insurance. Not only do Baker & Daniels professionals know the book on bond claims, we wrote it – one of our lawyers authored the Indiana chapter of the American Subcontractors Association Lien and Bond Claim Manual for the past several years.
Construction Defects
Defects in construction projects are unfortunate, but predictable. If these problems aren't addressed properly, they can blossom into challenges that create escalating costs in time and money. Baker & Daniels lawyers approach construction defects in several ways:
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By being proactive – That is, anticipating problems and challenges as or before they arise. In construction defects cases, that can mean taking steps early on to preserve evidence and maintain records and documentation. It also can mean developing effective processes for overseeing and completing projects and developing a coherent recovery program.
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By being cost-sensitive – One way to address construction defects is to act to minimize the scope of the problem created by the defect. We are experienced at identifying potential problems and developing a remediation protocol to address the problem so that a small defect doesn't grow into a big and expensive challenge.
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By being creative – Liability for construction defects often can be assigned to a variety of different parties. We work with clients to identify potential targets for recovery and protect clients from liability that properly lies with others.
Baker & Daniels professionals are experienced in the challenges of coordinating these activities in construction projects and in active and anticipated litigation involving construction defects.
Mechanic's Liens
A mechanic’s lien is more than a “clean-up” matter for the conclusion of a construction project. For an owner, it can be an extraordinarily frustrating obstacle holding up a sale or refinance transaction. On the other hand, for a contractor it is perhaps the single most formidable weapon to enforce payment – one that ensures not just the recovery of principal and interest, but often lawyers' fees as well. In either case, liens can become a high stakes battleground – with the outcome typically depending on whether all of the detailed formalities required by the law have been satisfied.
At Baker & Daniels, we view the subject of liens as something that is important to address not just when claims are brewing, but at the “front end” of construction projects as well. Toward that end, we have assisted contractors in developing the in-house capability to generate and record enforceable mechanic’s liens in multiple jurisdictions. We also have assisted owners in developing contractual and practical methodologies for minimizing the threat of liens on projects and soliciting appropriate documentation when claims are threatened.
Not only do we know the book on mechanic’s liens, we wrote it – one of Baker & Daniels' lawyers has authored the Indiana chapter of the American Subcontractors Association Lien and Bond Claim Manual for the past several years.
Residential Construction Problems
Residential construction involves many of the same challenges as commercial construction but with the importance of "habitability" added into the mix. Baker & Daniels lawyers assist homeowners, contractors and subcontractors from the beginning of the construction process, beginning with negotiating and drafting contracts that clearly define the parties' responsibilities and allocate risk appropriately. Our focus at this stage is to anticipate and avoid problems.
During the construction process, we provide counsel as issues arise. Such counsel often helps parties avoid expensive and time-consuming litigation later. Baker & Daniels' goal is to provide practical advice and solutions to help keep the project on-track, as well as to protect and preserve our clients' rights in the event of later litigation or arbitration.
Finally, Baker & Daniels lawyers represent parties in the residential construction process in litigation and arbitration. We have extensive experience in addressing mechanic's liens, insurance claims, water intrusion problems, mold claims, roofing defects, masonry issues, window defects and residential warranty problems of all types. We strive to provide the very best representation in an efficient and cost-effective manner in line with the more limited budgets that homeowners typically have.
Construction Insurance
Baker & Daniels professionals represent contractors and owners in negotiation of insurance coverages on projects around the country. While we are often called on to force property and casualty insurers to honor their coverage obligations, our understanding of the place and purpose of insurance on a construction project more frequently helps us help our clients in making sure the right coverages are in place before claims arise. We also have represented owners and contractors to draw on performance bonds and recover when others failed to provide the insurance coverage their construction contracts required.
Construction Safety
Despite great improvements, construction remains one of the most hazardous industries in which to work and, therefore, a frequent target of government safety and health inspections. Baker & Daniels lawyers have significant experience in construction-related safety and health matters.
For many years, a Baker & Daniels lawyer has served as safety counsel to the Associates General Contractors of Indiana (now the Indiana Contractors Association). In that capacity, we advise the ICA and its members on new rules, such as steel erection cranes and derrick and the application of OSHA's multiemployer liability policy for construction sites.
Baker & Daniels lawyers frequently become involved in the investigation and resolution of construction related fatalities and accidents. We assist from beginning to end – in investigating the cause, dealing with media and government investigators, and with the citations and lawsuits that inevitably follow. We assist many construction contractors in designing construction contracts and safety programs to minimize liability. Our experience ranges across the spectrum of construction, from underground trenching to steel erection and everything in between.
Construction Labor and Employment
Baker & Daniels lawyers understand the labor challenges unique to construction projects. We represent construction owners, managers and contractors throughout the country in all aspects of labor and employment law, including collective bargaining and administration of collective bargaining contracts, employment litigation, employment discrimination issues and day-to-day administration of employee relations.
Our lawyers work tirelessly to assist our clients in maintaining union-free projects and workplaces. Additionally, we concentrate on the full range of employee benefits law – from plan design to litigation, from health insurance to stock options and from corporate finance to union disputes.