Parker Poe Adams & Bernstein LLP

Mark Twain famously wrote that the reports of his death were exaggerated.  Following the South Carolina Supreme Court’s decision in Smith v. D.R. Horton, Inc. last month,[1] you may have heard arbitration is dead for South Carolina residential builders.  In that decision, the Court found an arbitration agreement unconscionable and therefore unenforceable.  While the decision makes clear that South Carolina courts remain hostile to arbitration, reports of arbitration’s death are greatly exaggerated.  Despite the…
Implied in every government contract is a requirement of “good faith and fair dealing” regardless of whether the written terms state such a requirement.  Therefore, contractors should be careful to avoid conduct that the written terms of the contract may not address but that would violate the implied good faith obligation.  The problem for contractors is the amorphous term “good faith” creates uncertainty as to what conduct violates the good faith obligation.  The Civilian Board…
We have all heard the saying that an ounce of prevention is worth a pound of cure.  This holds true for litigation arising from construction projects where it is much easier and cheaper to avoid a large judgment through careful contract drafting on the front end.  One important tool for doing so is a limitation of liability provision which is commonly found in construction contracts. The South Carolina Supreme Court recently held in Maybank v.…
Unless a contractor wants to finance public construction projects, a contractor on a State project wants to collect interest on any late payments the State of South Carolina owes. South Carolina’s Prompt Payment Act permits contractors to recover interest on such late payments, but a recent decision shows contractors must carefully comply with the statute’s notice requirement to preserve this right. In Consensus Construction & Consulting, Inc. v. Horry-Georgetown Technical College, Case No. 2015-003, (CPOC,
For developers and builders of single-family communities and multi-family housing, an increasingly common tactic is for plaintiffs’ counsel to assert a class action, a procedural device that allows one person to sue on behalf of related persons who are not parties to the lawsuit. Plaintiffs’ counsel then relies on statistical extrapolation from limited inspections of a few homes or units to prove liability and damages.  For example, a plaintiff’s expert may inspect three residences in…
The Office of the State Engineer proposed adopting the following building codes for state buildings which would take effect on July 1, 2016: International Building Code (IBC), 2015 Edition International Existing Building Code (IEBC), 2015 Edition International Fire Code (IFC), 2015 Edition International Fuel Gas Code (IFGC), 2015 Edition International Mechanical Code (IMC), 2015 Edition International Plumbing Code (IPC), 2015Edition International Private Sewage Disposal Code (IPSDC), 2015 Edition International Property Maintenance Code (IPMC), 2015 Edition,…