The Architectural, Engineering and Construction Defect Litigation Practice Group of Marshall Dennehey clearly understands the relationship between construction professionals and their respective responsibilities. Our practice group has a considerable number of years of experience in defending construction industry cases. The practice includes representation of owners, developers, general contractors, construction managers, subcontractors and design professionals. This group quickly develops an understanding of the project and contract documents in order to identify key issues early, then proceeds to develop those issues into sound defense strategies. Our practice group's litigation experience includes initial negotiations, construction claims, arbitration proceedings and jury trials involving all phases of construction litigation.
Our defense approach is aimed at the early identification of key issues and is predicated on developing the earliest possible defense strategies tailored to the individual case and client. The application of this strategy is carried out by a team approach consisting of experienced partners, associates and paralegals capable of handling the basic, as well as the highly sophisticated and complex, construction litigation matters.
The Architectural, Engineering and Construction Defect Litigation Practice Group of Marshall Dennehey consists of a diverse group of professionals with considerable experience handling matters throughout Pennsylvania, New Jersey, Delaware, Ohio, West Virginia, Florida, New York and Connecticut. The group prides itself on its multi-jurisdictional range of experience and substantial number of cases handled.
We look forward to your inquiries and remain at your disposal for presentations or seminars which your company may desire.
Results
Multimillion Dollar Default Judgment Successfully Struck Down by Appellate Court
We succeeded in striking a $4.1 million default judgment entered in the Philadelphia Court of Common Pleas by a plaintiff who alleged defective residential construction. We convinced the court that Pennsylvania Prothonotaries and Clerks of Court lack authority to accept a praecipe to enter a default judgment in a specified amount unless the amount is approved by a judge or is a sum certain, meaning that the amount is ascertainable from a confessed judgment or a contract that specifies the amount due. The default judgment had spawned significant coverage litigation by and against the defendant’s insurer.
Summary Judgment Secured in a Design Defect Case
We won summary judgment on behalf of a company that provided software for the overall design of roof trusses in a design defect case. The plaintiff owned the apartment complex being built and hired Turnbull Wahlert to construct the building. 84 Lumber was subcontracted by Turnbull to build and install the roof trusses. 84 Lumber contracted with our client to use its software for the design of the roof trusses and to provide truss connect plate hangers. The building experienced severe water damage allegedly because the roof trusses were not sloped properly and the HVAC units were misplaced on the roof. Damages were estimated at over $1.2 million. 84 Lumber demanded that our client defend and indemnify it against Turnbull’s allegations. The court granted our motion for summary judgment.
Thought Leadership
Case Law Alerts
Closing the Loophole
July 21, 2026
On November 17, 2023, New York amended the Prompt Payment Act, establishing a 5% cap on retainage under section 765-c of the General Business Law. Specifically, this amendment limited any retainage withheld from a contractor or subcontractor on a private construction project to 5%. However, this amendment contained a significant gap: because the 5% limitation was not included among the void provisions enumerated in Section 757 of the General Business Law, owners and general contractors were able to circumvent the statutory cap through contractual provisions requiring higher retainage. Section 756-a of the General Business Law allowed the terms of a construction contract to supersede the Prompt Payment Act "except as otherwise provided" in the article. SB 5655, which went into immediate effect on December 19, 2025, closes this loophole by adding contract provisions that exceed 5% to be void and unenforceable under Section 757 of the General Business Law.
Case Law Alerts
Contractor Prevails on Contractual Risk of Loss Provision
July 21, 2026
Carnaval Home hired Berman Construction to renovate an existing home owned by Carnaval. Their contract set the date of substantial completion at September 4, 2019, and included a risk of loss provision placing risk predominantly on Carnaval. Berman hired subcontractors, including an electrician and project supervisor, to carry out the renovations. On July 29, 2019, with renovation 90% complete, a fire destroyed the home. Carnaval then sued Berman for breach of contract, negligence, and violation of Florida building code. Carnaval based its breach of contract theory primarily on Berman failing to deliver the renovated property by substantial completion. At trial, Carnaval presented evidence that faulty attic wiring caused the fire, while Berman claimed it was caused by arson or another cause beyond its control. During the charge conference, Berman requested a question on the verdict form regarding the risk of loss provision and its other defenses of impossibility of performance and frustration of purpose. The trial court granted a directed verdict on impossibility of performance and frustration of purpose, holding the risk of loss provision eliminated those defenses, and also denied Berman’s request for the risk of loss question on the verdict form. The verdict form ultimately included questions regarding the breach, negligence, and code violation claims. Its questions regarding the breach claim included the following: whether Carnaval did what was required by contract; whether Carnaval was excused from doing what was required by contract; whether Berman failed to do what was required by contract; and whether Carnaval was damaged by Berman’s failure to perform. The jury found Berman was not negligent but did violate the building code and breach its contract, though the code violation did not cause Carnaval’s damages. Carnaval was awarded $928,850 pursuant to the breach claim. The trial court denied Berman’s post-trial motions and granted Carnaval’s motion for attorneys fees. On appeal, the 4th DCA noted that Carnaval presented evidence that the fire occurred the day electrical work was completed and power was restored to the house for the first time since construction began, when the home was under the exclusive control of Berman and its subcontractors. It presented testimony from the carpenter that the kitchen and family room lights went out while he was at the property that evening, which was also corroborated by Carnaval principal Luis Ormo. It presented expert testimony that the fire likely started in the attic and was not a result of arson. Berman offered testimony that traces of gas were detected along with unusual burn patterns and heat deformation at the bottom of door frames. Its expert testified that the fire had multiple points of origin. Berman established the home was engulfed in flames emanating from the roof within twenty minutes of Carnaval leaving the property and argued the fire could not have moved so fast absent arson. It further suggested the electrician and Ormo had separate dealings in violation of their subcontract, thus some of the electrician’s conduct was beyond Berman’s control. The 4th DCA held Berman’s claim of inconsistency between the negligence, building code violation, and breach jury verdicts was to be remedied by a new trial, not directed verdict, and further held that it did not have to decide whether the verdict was truly inconsistent as Berman did not raise this issue before the jury was discharged and did not seek the appropriate remedy of a new trial. As such, it held the trial court was correct in denying Berman’s motion for directed verdict. However, the court held that the trial court erred in denying Berman’s special interrogatory request as to the risk of loss provision. It explained that, where interrogatory verdict forms are used, it should include questions on both the plaintiff’s claims and any affirmative defenses. Without allowing a question regarding whether the risk of loss provision excused Berman from performance, the trial court did not resolve “the major question in the case.” The jury, having found Berman not negligent, made Berman’s defense, and the verdict form question, particularly significant. The court rejected Carnaval’s argument that Berman had waived its demand for arson-specific instructions and that Berman bore the risk of loss from non-arson-induced fires. It also held that Carnaval incorrectly applied the negative-implication canon, wherein the express mention of one thing implies the exclusion of another, stating not every positive statement of rights or obligations carries a negative implication. Further, the risk of loss provision’s clause including “perils beyond contractor’s reasonable control” amounted to a catch-all, to which the negative-implication canon cannot be applied. When read in totality, the provision clearly places risk of loss on Carnaval for perils such as arson. Berman was therefore entitled to have the jury decide whether the loss was caused by arson or another peril beyond its control. Final judgment in favor of Carnaval was reversed, as was the trial court’s order denying Berman’s motion for attorneys fees, and the matter was remanded for a new trial.
