By Matt Bouchard

In With the New

Apparently time still flies by, even during a pandemic. It has been such an honor serving the Construction Law Section and its incredible members as Chair this past bar year, and it’s hard to fathom that the year is at its end. The section is in terrific hands as we move into the 2021-2022 bar year on July 1, with Parker Moore ([email protected]) taking the reins as Chair, ably assisted by Carl Burchette ([email protected]) as Vice-Chair, Sandy Mitterling Schilder ([email protected]) as Secretary, and Caroline Trautman ([email protected]) as Treasurer. Please reach out to them and let them know how the section can better serve you — as well as how you can serve the section.

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This article has been republished with permission from Smith Anderson. 

By Andrew Atkins, Peter Marino and Patrick Wilson

The North Carolina Supreme Court recently issued a decision in Crescent University City Venture, LLC v. Trussway Manufacturing, Inc.[1] The case decided the question of whether a commercial developer-owner can bring a negligence claim directly against a supplier of defective building material where no direct contract existed between the owner and supplier. The Supreme Court held that the owner could not maintain such a claim and reaffirmed that the “economic loss rule” applied. The economic loss rule provides that, when a duty to perform arises from a contract, no negligence claims can be brought for failing to perform that duty. Instead, only contract claims can be brought.

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By Matt Bouchard

It is a privilege and a pleasure to announce that the eighth edition of the North Carolina Construction Law Deskbook has been uploaded to the Construction Law community forum on the North Carolina Bar Association’s website.

The Deskbook is a benefit available to all members of the NCBA Construction Law Section and is easily accessible by following the steps below.

How to Access the Deskbook

• Enter your log-in credentials at www.ncbar.org, click the “Connect Now” button on the “Communities” window, click “My Communities” on the following page, and then select “Construction Law” on the next page.
• Once in our Construction Law Community forum, select “Library,” and you’ll see a folder on the left-hand side of the screen labeled “Desk Book – Foreword.” Click the triangular prompt to the left of this folder to see the list of 17 chapter folders.
• Clicking each chapter folder will bring up that chapter’s contents on the right-hand side of the screen.  Double-click the content you’re interested in to bring up a screen that allows you to view or download the chapter or form that you’ve double-clicked.

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By Luke J. Farley, Sr. 

We’ve all been there: you’ve been mediating all day, it’s 5:30 p.m. (or later), the parties just (finally) came to terms, and everyone is ready to go home. The mediator whips out a form, jots down the basic terms of the settlement, and hands you the form. You reach for your pen, and then ask yourself, “Shouldn’t my client be the one signing this?” Considering the increase in remote mediations since the start of the pandemic, there’s a good chance you and your client aren’t even together in the same room — or the same state. So do you sign? The North Carolina Court of Appeals just answered that question for you. After the decision in Mitchell v. Boswell, No. COA19-1077, 2020 WL 6437278 (N.C. Ct. App. Nov. 3, 2020), your client should definitely be the one signing the form.

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By Ben Buskirk and Riley Smith

Subcontractors and contractors with pending construction contract claims, read your monthly application for payment, lien waiver, and change order forms closely before signing. Failure to do so may result in a costly waiver of claims.

Imagine this: you are a subcontractor on a construction project that is nearing completion. Many of your change order requests are disputed by the general contractor. Cash flow requires that you bill for the undisputed contract balance. To do so, you execute and submit an application for payment and lien waivers on the general contractor’s forms as a condition precedent to receiving payment. Have you preserved your claims on the disputed work? A recent North Carolina Court of Appeals opinion serves as a reminder of the impact periodic lien waivers can have on pending construction contract claims.

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