Mid Atlantic Real Estate Journal — Owners, Developers & Managers — May 31 - June 13, 2013 — 23A C onstruCtion L aw
By Joshua C. Quinter, Kaplin Stewart Think bigger when you plan your next project
s counsel to compa- nies involved in con- struction at all levels, I
than an attempt to allocate risk on everything from non- payment to work site injuries. Any intelligent plan or contract will properly address the risks for a particular job, so compa- nies should start the process by identifying them. Next, figure out what entity or person is in the best position to control those risks and determine who actually controls them; and un- derstand there is a difference. The party that controls the risk is not always the one most able to do so. Typically, the company that has the greatest ability to control a risk should bear it.
After the risks are catalogued and quantified, companies can more easily decide how to allo- cate them. Distribution of risk is primarily about control. A company taking responsibility for a certain part of a project must determine how to best mange that potential exposure. This dynamic is, in part, why identifying those who are in the best position to control the risk is so important. It is also why consideration of how the risk can be controlled should be part of that same discussion. The contract language is only one part of risk manage-
ment. Bonds and insurance can be purchased to address completion, payment, and casu- alty loss issues. Sound internal safety practices and corporate controls on procedure and fi- nances also help. Even things as simple as the nature of the relationship with others on the work site, the personnel chosen for the project, and the equip- ment to be used can impact how risk is managed. These consid- erations are some of many that impact the contract and how you negotiate it. Every worksite presents its own challenges and should be
treated accordingly. Don’t be lulled into thinking there is a “one size fits all” plan for ev- ery project. Variations of prior plans can be a good place to start, but the same structure should not necessarily be used on every occasion. When you start preparing for the next project, think bigger. It will help you plan your project bet- ter and avoid the trap of think- ing that your “good contract” is all you need. Joshua C. Quinter, Esq. is a principal in the Construc- tion Law group of Kaplin Stewart in Blue Bell, PA. n
routinely par- ticipate in the negotiation of the terms and conditions of my c l i ent s ’ construction contracts. I consider this a smart busi-
Joshua C. Quinter
ness practice because a small amount of time and resources invested in discussing the terms before a project begins can avoid much larger – and more expensive – conflicts after the project starts. Practically speaking, this should be the last step though. Consideration of a number of other interre- lated things is often necessary before the contract negotiation even begins. Contracts are nothing more individually.” Further, while a plaintiff might also pursue a veil-piercing approach to per- sonal liability, nothing in the CFAor relevant cases suggests that, absent a veil-piercing, an individual employee or officer will be shielded from liability. The Court appeared to have the greatest difficulty with the question of whether an employee or officer of a cor- poration can be found liable where the basis of the CFA claim is a regulatory violation rather than an affirmative act or a knowing misrepre- sentation. Such violations are particularly tricky since many regulatory violations are analyzed in terms of strict liability, thereby implicating issues of fairness where, as in Allen, regulatory violations are utilized to impose personal li- ability on corporate employees and officers. The Court there- fore concluded that individual liability for regulatory viola- tions ultimately must rest on the language of the particular regulation at issue and the na- ture of the actions undertaken by the individual defendant. The Court reviewed in detail the three specific HIP regula- tions at issue: 1) requirement of a written contract, N.J.A.C. 13:45A-16.2(a)(12), 2) prohibit- ing submission of a final invoice in advance of issuance of a final continued from page 22A continued on page 26A By Jason T. Shafron, Esq. . . .
Contact: Joshua C. Quinter, Esq. 910 Harvest Drive, Blue Bell, PA 19422-0765 • 610-260-6000 • www.kaplaw.com Other Offices: • Cherry Hill, NJ 856-675-1550 • Philadelphia, PA 215-567-3120 Kaplin Stewart At t o rne y s a t Law Getting you through the maze of real estate law. Strategy. Skill. Success.
KS Ad 6x5.5 Maze.indd 1
10/9/12 9:53 AM
Made with FlippingBook HTML5