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

What happens when fixing an alleged design or construction error leaves an owner with a project that’s better than originally promised? In this episode, we explore the doctrine of betterment—a key damages principle that prevents claimants from turning construction disputes into windfalls. Host David Suchar is joined by Keith Bergeron of Deutsch Kerrigan (New Orleans) and Matt Ryan of Allensworth (Austin) for a deep dive into how courts handle “added benefit” claims. We unpack the interplay between design omissions, retrofit costs, and contractual risk allocation, with real-world examples and case law from across the country. Whether you represent owners, designers, or contractors, this episode offers practical insight into how betterment shapes liability and claim strategy for construction disputes.

What does it mean to meet the “standard of care” in the construction industry—and what happens when that standard is called into question? In this episode, we’re joined by Chris Caddell of Spire Consulting and Tim Ross of Andrews Myers to explore how the standard of care applies to contractors, design professionals, and peer reviewers. Drawing on years of real-world experience, Chris and Tim share practical strategies for addressing standard of care issues in contracts, avoiding common pitfalls, and proactively managing risk from the earliest stages of a project.

In this episode we discuss a book recently published by the ABA Forum on Construction Law—"Design-Build and EPC Contracting: A Practical Legal Guide” (2024)—one of the ABA Forum on Construction Law's newest books.  Construction lawyer and book editor Ken Rubinstein discusses his role as editor (on behalf of other editors Nicole Lentini, Logan Hollobaugh, Wendy Venoit, and Paul Varela), the content and process for developing the book, current issues that face project Owners and emerging industry trends, and practical tips for how to navigate the unique challenges in this space as construction lawyers.

In this episode we discuss a book recently published by the ABA Forum on Construction Law—"Representing the Project Owner: A Construction Lawyer's Guide” (2025)—one of the ABA Forum on Construction Law's newest books and an excellent addition to the organization's catalog of useful resources.  Construction lawyers and book editors Anatoly Darov, Sanjay Kurian and Kristen Sherwin discuss their roles as editors, the content and process for developing the book and current issues that face project Owners.

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.