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Going Once, Going Twice … A New Alternative to Design-Bid-Build Contracts

The 2014 Legislative Session brought new possibilities for large construction projects under the Public Contract Law. Generally, a public entity is required to separately hire a design professional to design the project, and let the project out for public bid for the construction work. “Design-build” contracts, in which the public owner contracts with one entity for the design and construction of the facility, are prohibited under Public Contract Law.  However, the Legislature has now given public entities another option under the Public Bid Law: Construction Management at Risk Delivery Method (CMAR).

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What’s the Delay? Contractor Delay Damages Under the Public Bid Law

Generally, a provision in a construction contract for private work limiting the contractor’s right to recover additional costs arising from delays outside of the contractor’s control may be enforceable. However, under the Public Bid Law, such a provision has been found to be against public policy. La. R.S. 38:2216 prohibits any public contract provision that purports to waive, release or extinguish the rights of a contractor to recover delay damages if the delay was caused in whole or in part by the acts or omission of the public entity.

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Do Not Pass Go

The Louisiana Supreme Court recently considered the recoverability of indirect economic damages caused by negligent injury to property of others in MAW Enterprises, LLC, et al v. City of Marksville, et al. The Court found the defendant’s duty did not include liability for damages resulting from negligent interference of a contract, and dismissed the case.

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Keogh Cox’s win prevents plaintiff from recovering Louisiana Lottery Jackpot

The United States District Court for the Eastern District of Louisiana grants defendant, Circle K’s, Motion to Dismiss concluding that plaintiff has no right to claim loss of opportunity to win the Louisiana Lottery Powerball jackpot, $103,100,000.00, because of an expired ticket issued in error.

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Fraud Just Got More Expensive – Equity as a Factor in Attorney Fee Awards

The Louisiana Supreme Court recently held that the New Home Warranty Act (“NHWA”) is not the exclusive remedy for a purchaser of a new home where the builder fails to disclose known defects in the Residential Property Disclosure Act (“RPDA”). Stutts v. Melton, 2013-0557, — So.2d. —-. The Court also upheld an award of damages and attorney fees for fraud victims who elect not to seek rescission of a sales contract despite no Civil Code article expressly allowing for attorney fees in such instances.

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To Err is Human, To Rescind-Declined

The Louisiana Supreme Court recently addressed the impact of contractual “errors” in Cynthia Fry Perionnet and Elizabeth Fry Franklin v. Matador Resources Company, 2012-2292, 2012-2377, — So. 3d –.

The Perionnet case involved a dispute over the intent of a contract to extend a mineral lease. The property owners believed that the lease was extended as to only 168.95 acres of nonproducing land. The defendant/lessors argued that the contract contemplated that the lease would extend to the entire 1850.34 acres to include producing wells.  Plaintiffs/property owners argued that their unilateral error regarding the terms of the contract was ground for rescission. The jury ruled in favor of the defendant/lessors. The Court of Appeal reversed. The Supreme Court granted writs.

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