We are thrilled to announce that David M. McLain, a founding partner of Higgins, Hopkins, McLain & Roswell, LLC, has been recognized in the prestigious publication, The Best Lawyers in America® 2025. David has earned this honor for his outstanding work in Construction Law and Litigation – Construction.

For over two decades, David has been a leading figure in the field of construction law. His dedication to providing exceptional legal services to developers, general contractors, and other construction professionals has set him apart as a trusted advisor and advocate in the Colorado construction industry. His inclusion in The Best Lawyers in America® 2025 is a testament to his hard work, legal acumen, and the respect he has garnered from his peers.

About The Best Lawyers in America®
The Best Lawyers in America® is one of the oldest and most esteemed peer-review publications in the legal profession. Each year, lawyers are nominated and evaluated by their peers based on their professional expertise and achievements. Only a select few receive this honor, making it a significant recognition of excellence in the legal field.

A couple of miles past the western entrance to Yosemite National Park, visitors pass from California into a postcard. The road opens to a majestic view of Half Dome, El Capitan and Cathedral Rocks—celebrity peaks if ever there were—which form the towering walls of Yosemite Valley. On the pine-scented floor of John Muir’s mountain mansion, the Merced River flows gently by the side of the road as signs point toward trailheads and tourist destinations. Not far from Curry Village, a cluster of tent cabins and eateries at the eastern end of the road, is a section of employee housing known as the Stables. It was there that Erin Rau found herself wrapped in a sleeping bag one broiling afternoon last summer, wondering whether she was about to die.

Rau was a little over a month into a seasonal job selling goods in the village’s general store. Almost as soon as she arrived from Michigan, she recalls, she got the sense this wouldn’t be the carefree, post-college summer gig she’d imagined. In the evenings, she was left alone to manage a bunch of fellow early-twentysomethings making the same sixteenish bucks an hour until the shop closed at 10. At night a family of ringtail possums would crawl down from the rafters to tear into a display of baked goods, a long-standing issue she says her bosses did nothing to resolve, apart from throwing away half-eaten muffins in the morning. Similarly, deer mice kept leaving droppings on the pillows and sheets in the cabin Rau shared with three other women. When one of her roommates complained, she says, management supplied a Ziploc with a couple of mouse traps, a mask, gloves and some hand wipes, leaving the employees to sort out the rest.

The Illinois Appellate Court affirmed the trial court's dismissal of the insured's complaint after damage caused by a leak of carbon monoxide caused bodily injury. Allied Design Consultants, Inc. v. Pekin Ins. Co., et al., 2024 Ill. Ct. App. LEXIS 1433 (June 18, 2024).

Carbon monoxide leaked in a building addition to a middle school, prompting 23 lawsuits to be filed against the insured, Allied Design Consultants, Inc. Allied was retained to perform certain architectural services to the building addition. Pekin Insurance Company had issued a business owners liability policy and a commercial umbrella liability policy to Allied. Pekin denied a defense to Allied based upon the policies' professional services exclusions.

Allied filed suit for declaratory relief against Pekin. Pekin filed a counterclaim, seeking a declaratory judgment that it had no duty to defend. The parties filed cross-motions for summary judgment. The parties agreed the allegations in the personal injury complaint filed by Ferguson were typical and representative of the allegations in the other 22 underlying lawsuits.

A recent opinion out of the Southern District of Florida, Berkley Insurance Co. v. Suffolk Construction Co., Case 1:19-cv-23059-KMW (S.D.Fla. July 22, 2024), provides valuable takeaways on schedule-based disputes between a general contractor and subcontractor on a high-rise project.

In a nutshell, the general contractor’s original project schedule was abandoned due to project delays and the project wasn’t being built by any updated project schedule. The subcontractor claimed the general contractor was mismanaging the schedule putting unreasonable manpower and supervision constraints on it, i.e., it was working inefficiently. A bench trial was conducted and the Court found in favor of the subcontractor’s arguments. The Court found the general contractor had unrelated delays and that work activities were no longer methodical but, simply, piecemeal demands. The Court also rejected any inadequate manpower arguments finding the subcontract did not place any manpower requirements on the subcontractor.

A common question from clients, when a dispute arises on a construction project, is whether they can recover their attorney’s fees from the other side if they pursue a case and win. More often than not, such fees are not recoverable. As a general rule (commonly known as the “American Rule”), each party to a dispute must bear their own attorney’s fees unless there is some statutory provision or contractual agreement between the parties allowing otherwise. Since most construction disputes involve claims for breach of contract and/or negligence, no realistic statutory provision often allows for attorney’s fees. Many construction contracts do not typically provide a prevailing party the right to collect attorney’s fees from the other side. However, even if the American Rule applies, there may be another path to recovering attorney’s fees if the parties agree to arbitrate their dispute under the American Arbitration Association (AAA) rules.

Reprinted courtesy of Bill Wilson, Robinson & Cole LLP

Mr. Wilson may be contacted at wwilson@rc.com

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In Phila. Indem. Ins. Co. v. Gonzalez, No. 1-23-0833, 2024 Ill. App. Unpub. LEXIS 1372, the Appellate Court of Illinois considered whether the terms of a lease agreement limited a tenant’s liability for fire damages, a fire caused by her negligence, to her apartment unit only. The plaintiff insured the subject apartment building, which incurred damage to several units as result of a fire in the tenant’s unit. The lease defined “Premises” as the specific apartment unit occupied by the tenant and held the tenant responsible for damage caused to the Premises. While the court found that the lease permitted the plaintiff to subrogate against the tenant, it held that the lease terms limited the damages to the tenant’s apartment unit only.

In Gonzalez, the plaintiff’s insured owned a multi-unit apartment building in Chicago. In September 2019, the building owner entered into a lease agreement with the defendant for apartment Unit 601. The lease stated that Unit 601 was the “Leased Address (Premises).” Another provision stated that building owner “hereby leases to Tenant(s) and Tenant(s) hereby leases from Landlord(s) for use as a private dwelling only, the Premises, together with the fixtures and appliances (if any) in the premises…” The lease also stated that “Tenant shall be liable for any damage done to the premises as a result of Tenant’s or Tenant’s invitees, guests or others authorized to reside in the Premises [sic] direct action, negligence, or failure to inform Landlord of repairs necessary to prevent damage to the Premises.”

On the cusp of the 70th anniversary of the originally named New York Airport’s opening in Queens, N.Y., a blue-ribbon panel in 2017 released a report to the governor of New York: The facility, once popularly known as Idlewild Airport, needed a comprehensive master plan and a total transformation. In the seven years since, builders at John F. Kennedy International Airport have been anything but idle, and the speed at which that $19-billion transformation of the roads and terminals is occurring could be called wild.

Reprinted courtesy of Aileen Cho, Engineering News-Record

Ms. Cho may be contacted at choa@enr.com

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A contract awarded, protested, terminated, appealed, then reinstated. It’s no secret that federal construction procurements are plagued with uncertainty. From delays, constructive suspensions, compromised supply chains, the litigation-laden critical path method, and the mandate for all construction materials used in federally funded projects for infrastructure to be produced in the United States under the Build America, Buy America Act (BABAA) (to name just a few traditional and emerging favorites), just one of these issues could fill the rest of anyone’s month with substantive research. To add one more, which is entirely unique to bid protests, federal contractors–including construction contractors–listed in a General Service Administration (GSA) Schedule may have new grounds to have a contract award reinstated that was terminated by a federal agency pending a GAO decision.

GAO Protest
An initial GAO protest filed by Deloitte & Touche LLP (Deloitte) argued that the National Geo-Spatial Intelligence Agency (Agency) wrongfully made an award to Kearney & Company, P.C. (Kearney) when the Agency: (1) improperly evaluated quotes; and (2) failed to conduct a proper best-value tradeoff analysis. At issue was a competed task order with Kearney under a GSA FSS multiple-award contract. Before the GAO issued an opinion, however, it held an unrecorded predictive-outcome conference with Deloitte and Kearney where the only mutual consensus was the likely ineligibility of all offerors for the relevant award. The Agency subsequently elected to take corrective action, terminating Kearney’s contract award for convenience, amending the solicitation to avoid issues (including undisputed issues) addressed in the GAO protest. After the Agency adopted their corrective action, the GAO protest was dismissed as academic and moot.