8:55 Welcome and Introductions
9:00 The Lasting Impact of Seminal Cases on Present-Day Construction Litigation
Peter J. Marino, Smith Anderson Blount Dorsett Mitchell & Jernigan LLP, Raleigh
William "Casey" Vaughn, Smith Anderson Blount Dorsett Mitchell & Jernigan LLP, Raleigh
Explore the impact, progeny, implications and limitations of several key construction law decisions: Spearin, Gilbert Engineering, Ports Authority and Kaleel Builders. Starting with Spearin and Gilbert Engineering, we discuss how owners/architects have tried to cut into the implied warranty of design sufficiency via contract terms and alternative project delivery. Next, we take a look at Ports Authority and the squirrely (and arguably inconsistent) economic loss rule cases that have followed. Finally, we review the seminal indemnity case of Kaleel Builders, focusing on what the decision really means and how it impacts contract drafting and claims recovery in litigation.
10:00 Break
10:10 A Well-Regulated Construction Industry: The Licensing of Construction Professionals
Stephanie U. (Roberts) Eaton, Spilman Thomas & Battle PLLC, Winston-Salem
Bryan G. Scott, Akerman LLP, Winston-Salem
Receive an overview of the leading regulatory boards applicable to the construction industry, including general contractors, subcontractors, architects and engineers. With a focus on the regulatory and civil consequences of engaging in unauthorized practice of these trades, attendees learn about the disciplinary powers of the key licensing boards.
11:10 Break
11:20 More Money, More Problems? Frequently Litigated Issues When a Contractor Seeks Additional Compensation
Thomas L. "Tom" Antoine, JD Beam Inc., Raleigh
Robert L. "Bob" Burchette, Johnston Allison & Hord PA, Charlotte
Bentford E. "Ben" Martin, Hamilton Stephens Steele & Martin PLLC, Charlotte
Walk through the legal issues and proof questions that can arise when seeking additional compensation for such project impacts as owner-requested changes/design revisions and unexpected subsurface conditions. These issues include the criticality of maintaining and preserving claim documentation and satisfying contractual notice and presentment requirements, treatment of overhead and lost profit claims (including the practical difficulties in proving unabsorbed home office overhead damages under the Eichleay formula), taking care with progress payment lien releases to avoid inadvertently waiving a claim, the use of pass-through and liquidating agreements when extra work claims involve subcontractors, and apportionment of liquidated damages.
12:20 Adjourn
Thank you for joining us today for day one of Déjà Vu All Over Again — Virtually. We'll see you tomorrow.
Take a sneak peek inside the forthcoming North Carolina Construction Law Deskbook 8th Edition as we trace the evolution of key construction law principles as they have developed through our decisional law.
Thomas L. "Tom" Antoine is co-owner, president and COO at J.D. Beam, Inc. a general contractor located in Raleigh, NC that is focused on commercial construction. Mr. Antoine is a licensed attorney in Illinois and North Carolina. He also is qualifier on his firm's unlimited general contractor license in North Carolina, Virginia, South Carolina.Tom holds a Bachelor of Science in Construction Management from the University of Wisconsin at Platteville, a Juris Doctor and Legum Magister in Real Estate Law both from the University of Illinois at Chicago. At UIC, he was Editor-In-Chief of the Morrisey Scholar Ethics Law Review, recipient of the Morrisey Scholarship, and served as a Teacher's Assistant in Dispute Resolution classes. Tom and his wife of 21 years, Michelle, have eight children together and reside in Clayton, NC. He has served on the board of several non-profits over the years and currently serves as a Deacon at White Oak Baptist Church in Archer Lodge, NC. At work, Tom leads a team of 26 professionals to contract and build between $20 and 40 million in work on an annual basis.
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Matthew C. "Matt" Bouchard joined Poyner Spruill, LLP in 2019 as a partner in the firm's Litigation Section. His practice focuses exclusively on serving the needs of private property owners, prime contractors, subcontractors, and bonding companies in construction law and surety law matters across North Carolina. From September 2006 until joining Poyner Spruill, Matt practiced construction and surety law in the Raleigh office of Lewis & Roberts, after having spent the first five years of his practice at Holland & Knight's Boston office. He is a 1994 graduate of Duke University and a 2001 graduate of the University of North Carolina at Chapel Hill School of Law. Matt currently serves as Chair of the Construction Law Section of the North Carolina Bar Association and is active in various construction-related trade organizations.
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Thomas M. Buckley is a partner in Goldberg Segalla’s Raleigh office who represents businesses in complex commercial litigation matters, including construction defect, construction injury and death, and the defense of professionals in liability actions and licensing board complaints. His practice also entails defending clients against catastrophic personal injury and death claims, unfair trade practice claims, and a wide variety of business and contractual disputes, including employment discrimination, wrongful termination, and disputes related to business dissolution. His background in construction and employment law have come together in the OSHA and safety area, where he represents clients in OSHA investigations and assists in the development of safety protocols and plans.
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Robert L. "Bob" Burchette is a partner with Johnston Allison & Hord PA in Charlotte. He is especially well known for his experience and expertise in construction law and litigation, having handled disputes in many states and jurisdictions, and represented major construction clients and other businesses, for more than 30 years.
In addition to construction disputes, Bob has been deeply involved in right-to- build, condemnation and conservation easement matters, and has lobbied on behalf of the construction industry. He is also a sought-after certified mediator and arbitrator and is referred often by other lawyers who know his leadership in the North Carolina bar construction section, the American Bar Association (ABA) and the American Arbitration Association (AAA).
Bob is the co-author of Claims and Insurance Sections of the North Carolina Construction Law Deskbook (1994-present), "Construction Claims" Chapter, NCBA NC Construction Law Deskbook (1997-present), co-contributor and presenter: "North Carolina Construction Law" (1999-2003) and co-Author, Construction Law: Can this job be saved? Creative strategies for project completion "Litigation Avoidance in North Carolina," Lorman Services (1999).
Bob earned his B.A. from Guillford College and his J.D. from Wake Forest University School of Law, where he was a member of the Law Review.
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Connor H. Crews is an assistant professor of Public Law and Government at the UNC School of Government, where his work focuses on local government contracting, procurement, conflicts of interest, ethics, and surplus property disposal. Immediately prior to joining the School, he worked as an associate at McGuireWoods LLP in Raleigh, where he served as bond counsel, borrower's counsel, and underwriter's counsel in a wide range of tax-exempt and tax-advantaged financings for public entities and nonprofit organizations.\
Crews received his J.D. from the University of Virginia School of Law, where he served as an Articles Editor for the Journal of Law & Politics. He earned a B.A. with highest distinction from the University of North Carolina at Chapel Hill. He is a member of the North Carolina State Bar.
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Thomas H. "Tom" Davis Jr. is a partner at Poyner Spruill LLP in Raleigh, North Carolina. He has more than 30 years of experience in the litigation and arbitration of complex cases. He advises clients on legal matters including construction contract negotiation, claims analysis and presentation, labor and OSHA disputes, professional licensing disputes, and land condemnation.
Prior to joining Poyner Spruill, Tom served as Assistant Attorney General of the North Carolina Department of Justice, Highway Division. He is a Certified Superior Court Mediator and District Court Arbitrator. He received his B.A. degree with honors in History from North Carolina State University and his J.D. degree from Wake Forest University.
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Stephanie U. (Roberts) Eaton is a member of Spilman Thomas & Battle, PLLC, in Winston-Salem. Her principal areas of practice are litigation and dispute resolution with an emphasis on construction-related product liability, and industrial accident matters. She has represented contractors in various licensing matters, as well as contract review and negotiation involving private and governmental commercial construction projects. Ms. Eaton is the immediate past chair of the Construction Law Section, a member of the Diversity Task Force, a YLD Fellow, a former member of the Foundation Development Committee, and a former site chair of the 4All Task Force of the North Carolina Bar Association. She is also a member of the Women in the Law, Product Liability, and Public Service Committees of the Defense Research Institute and vice chair of the organization's Construction Defect Specialized Litigation Group; a member of the South Carolina Defense Trial Attorneys Association; and the former president of the Forsyth County Women Attorneys Association. Ms. Eaton received her B.A. from Emory University in 1993 and her J.D. from the University of Florida School of Law in 1996.
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Philip T. Gray is a practicing attorney and partner at StephensonLaw, LLP in Cary, North Carolina, where he specializes in commercial & residential construction defects, materialman liens, contract disputes, eminent domain and general litigation.
Mr. Gray received his B.S. degree from North Carolina State University and his J.D. degree from Campbell University. At Campbell, he was a member of the National Trial Team and selected for membership in The Order of Barristers. He devotes a large portion of his free time as a guest-teacher in Wake County elementary, middle and high schools introducing students to constitutional principles and our legal system with his favorite lesson being a mock trial putting the Big Bad Wolf on trial for the murder of the Three Little Pigs. Mr. Gray has partnered with the Law-Related Education Advisory (LREA) Committee of the North Carolina Bar Association's Foundation to bring his Big Bad Wolf lesson to reach all of North Carolina students.
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Daniel J. Knight is an associate attorney with Parker Poe Adams & Bernstein LLP in Raleigh. He is a litigator who focuses on construction law. He has represented owners, general contractors, and subcontractors in a broad range of construction litigation claims, including over breaches of contract, defective construction, delay, enforcement of lien claims, and bond claims. He has also represented insurance companies in litigation over property and casualty (P&C) insurance related to product liability, automobile negligence, and defective work claims.
Daniel has experience in state and federal court, as well as in arbitration.
Daniel earned his B.A., cum laude, in History and Political Science from North Carolina State University and his J.D. from Campbell University School of Law. In law school, he was a member and officer of the Delta Theta Phi law fraternity, which was actively involved with the Food Bank of Central, and Eastern North Carolina, the Campbell Law Innocence Project and the Military Law Student Association.
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Jennifer M. Leuschner is a Bond Claim Manager for Philadelphia Indemnity Insurance Company. Prior to joining Philadelphia in 2017, Ms. Leuschner worked for Hartford Fire Insurance Company for eleven years. Ms. Leuschner earned her B.A. in Economics and History from Providence College in 1997 and her J.D. from Roger Williams University School of Law in 2003 and is a licensed attorney in the State of Texas. She is a frequent speaker on various surety topics at professional education conferences and author to number of articles and publications in area of surety and construction law.
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Peter J. "Pete" Marino is a Partner at Smith, Anderson Blount Dorsett Mitchell & Jernigan LLP in Raleigh. He has been practicing in the area of construction and public infrastructure law for more than 30 years and co-chairs Smith Anderson's Real Estate Development and Construction Law groups.
Pete also serves as chair of the Freeways Division for the Regional Transportation Alliance. He has been integrally involved as lead legal counsel in some of the most significant infrastructure projects in North Carolina and the surrounding region, including, among others, the state's first Interstate toll road project and its largest single award design-build highway project, the state's first and second light rail projects, numerous international airport and land and airside projects, and a LEED-certified World Headquarters campus for a Fortune 500 company. In Chambers USA, clients say he's "truly an expert in the field," and "incredibly responsive and diligent" (Chambers USA).
Pete's practice includes all facets of construction law arising out of public and private projects, representing owners, developers, general contractors, sureties, design professionals and large subcontractors, and serves upon request as an independent arbitrator in construction disputes. He regularly represents clients in various public construction bid, contracting and litigation matters involving highway and other public infrastructure and military projects. He has represented clients in connection with contracting, bid and claim disputes related to reconstruction projects in Iraq and Afghanistan, among many other national and international projects.
Pete has served as past chair of the NCBA Construction Law Section, is a Co-Author of the North Carolina Construction Law Deskbook and has held various leadership positions in the American Bar Association's Forum on Construction Law.
Pete earned his B.A. from Lemoyne College and his J.D. from the University of North Carolina School of Law.
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Bentford E. "Ben" Martin is an attorney with Hamilton Stephens Steele + Martin PLLC in Charlotte. He has been a civil litigation attorney for over 30 years, having handled numerous cases in federal and state courts, as well as before administrative bodies and arbitrators, and appeals to the North Carolina Court of Appeals, North Carolina Supreme Court, Fourth Circuit Court of Appeals and U.S. Supreme Court.
For more than a decade, Ben has focused his practice on the areas of construction law and litigation, representing general contractors, trade contractors and subcontractors, owners, developers, as well as sureties, municipalities, designers and owners' associations in contract review, negotiation and preparation, as well as claims, litigation and arbitration. He has prepared contracts and handled claims concerning a wide variety of projects including hospitals, schools, condominium and apartment projects, hotels, manufacturing facilities, shopping centers, subdivisions and highways. He also has extensive litigation experience with real estate disputes and the areas of products liability, insurance claims and other areas of commercial litigation.
Ben has an AV Preeminent Peer Rating by Martindale-Hubble, and has been selected annually for inclusion in Business North Carolina's "Legal Elite," North Carolina "Super Lawyers" and Best Lawyers in America, in the fields of construction law and litigation, since 2005-2006. He was ranked as Lawyer of the Year – Construction Law (Charlotte 2014, 2016) by Best Lawyers. He currently serves on the Council of the Construction Law Section of the North Carolina Bar Association.
Ben earned his B.A., magna cum laude, from Wake Forest University and his J.D., with honors, from University of North Carolina at Chapel Hill School of Law.
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Carmela E. Mastrianni is an attorney in the Hamilton Stephens Steele + Martin PLLC's Commercial Construction Litigation Group. She primarily represents subcontractors, and design professionals, general contractors and more in lawsuits alleging construction defects, delay claims, accounts collection, and other work or project issues. In addition to her construction work, Carmela represents landlords in summary ejectment actions, unconventional tenancies, and related litigation matters.
Carmela is licensed in both North Carolina and South Carolina and splits her practice between the two states. Most recently, she was recognized for her legal work by Chambers USA as one of the Construction "Associates to Watch" in North Carolina (2020, 2021); was invited to join the 2024 Class of the NC Construction Council, a division of the North Carolina Bar Construction Section; and was selected as one of the 2020 Diversity Fellows for the ABA Forum on Construction.
Carmela is a "double-heel", having earned both her undergraduate and law degrees at the University of North Carolina at Chapel Hill.
When outside the office, Carmela enjoys hiking and adventuring with Harvey, her Pitbull Boxer and competing in her local kickball league on Sunday afternoons.
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Robert A. "Bob" Meynardie is a business and consturction lawyer at Meynardie & Nanney PLLC in Raleigh. He has been a commercial and construction lawyer in North Carolina since 1993 following a two year clerkship at the Middle District of Florida and the 11th Circuit Court of Appeals. His litigation practice focuses primarily on delay/productivity claims and complex construction defect cases. In addition to his litigation practice, he has served as a neutral in more than 300 mediations and arbitrations since 2000.
Bob is certified by the North Carolina Dispute Resolution Commission for civil matters and is an active member of AAA's arbitration and mediation panels for both commercial and construction disputes. He has written numerous articles on topics ranging from delay and acceleration in construction to preparing for better advocacy in mediation and has spoken on these topics at conferences of both the NCBA Construction section and the ABA Forum. He is a member of the Construction Section and formerly served as its chair.
An avid student of negotiation skills and mediation theory and practice, Bob publishes articles and insights on both at carolinamediations.com.
Bob earned his B.S. in Economics from the Wharton School at the University of Pennsylvania, his M.B.A in Finance from the University of San Francisco and his J.D. from Emory University School of Law
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Brian J. Schoolman is an attorney with Safran Law Offices in Raleigh. He has been with Safran Law Offices since 2003, and has represented clients in all roles in the construction industry, including commercial, residential, and public owners, general contractors, subcontractors, suppliers, design professionals, and trade associations. His practice includes construction law and litigation, commercial litigation, contracts, corporate organization and governance, administrative hearings, and appellate practice, both in state and federal courts. He has also served as a lobbyist and advocate on several pieces of construction legislation before the North Carolina General Assembly, including bills on public construction delivery methods and on prequalification.
Brian is admitted to the North Carolina and California State Bars, the 4th Circuit Court of Appeals, and all three Federal District Courts in North Carolina. Brian is a member of the North Carolina Bar Association Construction Law Section, and the American Bar Association Forum on Construction Law. He is also certified as a Superior Court Mediator by the North Carolina Dispute Resolution Commission (NCDRC).
Brian earned his J.D. from the Duke University School of Law, and graduated, magna cum laude, from Claremont McKenna College, earning his B.A., with honors, in Government.
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Bryan G. Scott is a partner in the Winston-Salem office of Akerman LLP. He practice includes construction law and litigation, commercial litigation, and creditor's rights in North Carolina, Virginia, and West Virginia. Mr. Scott represents owners, developers, and contractors in contract negotiations, project monitoring, lien disputes, and construction claims and defect litigation. He is a former Chair of the NCBA Construction Law Section, editor of the Section's newsletter The Change Order, and CLE co-chair. Mr. Scott is AV Rated by Martindale-Hubbell and was selected for inclusion among construction lawyers in the "Best Lawyers in America" by Best Lawyers, "Legal Elite" by Business North Carolina magazine, and "North Carolina Super Lawyers" by Super Lawyers magazine. He received his B.A., magna cum laude, from Appalachian State University in 2001 and his J.D. from Wake Forest University in 2004.
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David A. Senter is a Partner in the Raleigh office of Maynard Nexsen PC and is widely respected for his background in construction law, commercial litigation, and commercial collections. He has 35 years of experience delivering legal strategies and solutions on a wide range of issues impacting the construction industry and a wide range of large, complex construction projects.
Since David joined the firm in 1984, clients have trusted him to handle routine and complex cases. David has been recognized in Construction law by Best Lawyers in America (Lawyer of the Year for Litigation-Construction/Greensboro), named Legal Elite by Business North Carolina, and as a North Carolina Super Lawyer. He frequently speaks before national and local audiences on topics related to construction law.
David has authored many articles in bar and trade publications and has served in leadership positions for several professional associations. He is an Adjunct Professor of Construction Law at Wake Forest University School of Law. He is also a certified North Carolina mediator and a member of AAA's Large Complex Case Panel.
Click here for more information about David. David may be reached at 336.387.5126 or by email.
Michael J. Sugar III grew up in Brandon, Florida. He received his Bachelor of Science in Mechanical Engineering from Boston University. Following his graduation from BU, Michael moved to Tampa, Florida and began his career with Clark Construction Group. Michael served as a Project Manager for Clark for 6 years. Michael oversaw the construction of both the US Central Command Joint Intelligence Center and the new US Central Command Headquarters, each project was located on Macdill Air Force Base in Tampa. While working for Clark, Michael obtained his MBA from the University of Tampa.
In December 2012, Michael began his career with Forcon International (a forensic engineering, accounting and Surety consulting firm). He has consulted on a wide variety of projects up and down the East Coast of the United States. In 2018, Michael was promoted to President of Forcon. Michael currently oversees the day to day operations of the Company and manages a staff of 25 employees and 100+ consultants while still consulting on projects several Sureties.
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William C. "Casey" Vaughn is a Partner at Smith Anderson Blount Dorsett Mitchell & Jernigan LLP in Raleigh. He represents owners, contractors, and subcontractors in all aspects of the construction process from drafting and negotiating contracts to advising on risk management and claims issues and litigating post-construction disputes. He also has experience representing clients in licensing enforcement actions and advising clients regarding public procurement requirements.
Examples of Casey's representative experience include acting as outside construction counsel for an international airport authority; representing general contractors in asserting claims against NCDOT and municipal owners; representing contractors, subcontractors, construction managers, and suppliers in construction defect and delay claims; and representing owners, developers, design-builders, general contractors, and subcontractors in drafting and negotiating construction contracts, joint venture agreements, subcontracts, and other related documents.
Prior to joining Smith Anderson, Casey was an associate in the Dallas office of a large international law firm where he worked on a wide range of complex commercial and construction disputes, including domestic and international arbitrations, multi-district class action litigation, regulatory investigations and antitrust disputes.
Casey earned his B.A. in Peace, War & Defense and Political Science, with honors and distinction, from the University of North Carolina and her J.D., with honors, from The University of Texas School of Law.
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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
1. Click here to log in to "My Communities"
2. Select "Construction Law".
3. Select "Library" on the menu bar in the middle of the page.
4. Under "Folders" on left-hand side of the page, click the rotating triangle to the left of this folder labeled "Desk Book – Foreword" to expand the folder directory. You will see the list of 17 chapter folders.
5. Click on each chapter folder to bring up the chapter's contents on the right-hand side of the page under "Folder Contents".
6. Double-click the content you're interested in to bring up a page that allows you to view or download the chapter or form that you've double-clicked.