Episode 37: Force Majeure & Impossibility for COVID-19 and Other Construction Claims

In the latest episode of the Construction Law Today podcast series, Judge Nancy Holtz (Ret.), a seasoned JAMS mediator based in Boston, shares her insights on the critical role timing plays in achieving successful outcomes in construction mediations. Drawing from her extensive experience as a judge and mediator, Judge Holz discusses the delicate balance of timing in terms of exchanging information, sharing key information about mediation participants ahead of time and being willing to make bold moves as lawyers and party representatives in order to optimize settlement opportunities. Her practical advice and expertise offer valuable guidance for navigating the mediation process.

Our guest for this episode is Arlan Lewis, an accomplished construction lawyer and partner at Blueprint Construction Counsel in Birmingham, Alabama. Arlan recently served as chair of the ABA Forum on Construction Law and was elected this year as a Fellow of the American College of Construction Lawyers. Recorded live at the 2024 Forum Fall meeting in Pittsburgh, our conversation delves into Arlan’s journey in the Forum and the central role the organization has played in his career. Join us for an insightful discussion with one of the Forum’s leaders.

Our guest for this episode is Adrian Bastianelli, an attorney at Peckar & Abramson in Washington, D.C., and one of the nation’s most distinguished construction lawyers and arbitrators. Adrian’s career includes serving as Chair of the ABA Forum on Construction Law, editor of The Construction Lawyer, and the inaugural editor of the Journal of the American College of Construction Lawyers (ACCL). During the 2024 Fall Meeting of the Forum in Pittsburgh, Pennsylvania, I had the pleasure of speaking with Adrian about his remarkable journey in the Forum and how it has shaped his career.

In this episode we delve into the history of force majeure provisions and the impossibility doctrine. Our now repeat guest Benton Wheatley addresses this topic from the perspective of the common law history of force majeure and impossibility, leading up to a discussion about practical tips and frequently encountered problems in the area of COVID-19 and other developing claims.

In this episode we discuss the False Claims Act and its impact on the construction industry. Our guest is Chelsea Cullum, Executive VP, Forensics with Vertex in Washington, DC. She is a forensic accounting and quantum expert with a particular focus on government contracts, including analyzing and testifying with respect to false claims. Together we discuss the potential hazards and emerging trends with claims based on government contracts, including the most common types of claims that impact public construction projects.

In this episode we discuss autonomous vehicles and their impact on the construction industry. Our guest Tony Lathrop of Moore & Van Allen in Charlotte, NC addresses this topic using his many years of experience in his firm’s Transportation, Infrastructure & Logistics and Litigation groups and in leadership on the North Carolina Board of Transportation since 2017. Together we discuss the current capabilities and future of autonomous vehicle technology, its potential to transform many aspects of the construction industry and some interesting legal questions that arise as a result.

In this episode we discuss a topic that is familiar to many of our listeners—construction case and claims investigation—but with a focus on some innovative ways to consider and pursue information. Our guest Mark Becker at Fabyanske, Westra, Hart & Thomson, P.A., addresses this topic using his years of experience in the construction litigation field and on related topics of discovery, “document review,” effective use of experts, studies, subpoenas, FOIA requests, software review and depositions to gather the best information toward winning your case.

In this episode we explore the issues raised and opportunities presented by the infusion of Private Equity money in the construction industry and resulting issues in the field of construction law. Our guest Benton Wheatley addresses this topic using his years of experience in the area and on related topics of construction project financing, contracting, management and claims. Benton also provides an overview of practical tips and frequently encountered problems including ethical issues for lawyers practicing construction law in this era of increased private equity participation. 

In this episode we discuss double blind mediation techniques—and best practices for lawyers who participate in construction claims mediations. Accomplished construction lawyer and mediator Mark Heley addresses this topic. Together we explore the mediation of larger multi-party cases, how double blind mediation processes can help to solve disputes and the upsides and downsides of this approach.

In this episode we discuss DRBs—Dispute Resolution Boards—and best practices for experts and lawyers who participate in them. Engineer and expert Joe Siebold from Arcadis addresses this topic. Together we explore the range of processes undertaken by DRBs, their best uses including quarterly reviews and ways to stop disputes before they start. Joe describes the work that experts can perform, potential pitfalls for parties presenting to DRBs, and issues to look out for as lawyers, including whether DRB rulings and recommendations are binding or admissible in subsequent litigation.