Dallas Austin

How does COVID-19 impact the enforceability of non-compete agreements?  Even if enforceable, is that promise still worth enforcing?  Typically, when an employer chooses to enforce a non-compete agreement with a former employee, that employee has voluntarily left her/his position and has gone to work for a competitor.  The novel coronavirus and COVID-19 pandemic have resulted in mass layoffs, including layoffs of some employees with non-compete agreements.  These circumstances warrant a careful look at whether and when to enforce non-compete agreements.  A non-compete agreement, or covenan

On May 1, 2020, the Texas Supreme Court recognized its first exception to the eight-corners rule regarding an insurer’s duty to defend.  Given the significant interplay between insurance and many types of construction related disputes, the exception is noteworthy, even if narrow in its application. 1.    What is the eight-corners rule? One of an insurance company’s primary duties towards an insured is a duty to defend the insured against claims or suits seeking damages covered by the insurance policy.  For instance, an insurance company that issues a commercial general liability policy

Few parties are happy when the surety rolls into town as it typically means the construction project has gone awry.  The owner faces a project that may not be complete within the contract time or price.  The general contractor may face bet-the-company liability and the underlying owners of the contractor certainly face personal liability to the surety for amounts expended.  The subcontractors face potential payment delays and financial hardship.  And, of course, the surety faces potentially significant financial responsibility to pay claims or complete the project or both. Even during norm

Delay damages are the guests who show up uninvited for Thanksgiving dinner, tolerated, but not wanted.  No matter how high you set the temperature of the thermostat to make the guests uncomfortable and make them want to leave, they stay.  And stay.  And stay some more. Over the past several years, severe labor shortages in subcontracted trades have forced delays in critical paths of many projects.  The novel coronavirus and COVID-19 pandemic have made matters more acute.  Some projects have been shut down altogether, potentially giving rise to arguments that performance is impossible, imp

Gut-wrenching as it has been to close non-essential businesses or to keep essential businesses running while non-essential workers work remotely, it is proving equally, if not more, gut-wrenching to determine how to invite employees back into the physical workplace after the curve flattens and the pandemic subsides. What guidelines exist on reopening workplaces?  How do employers manage employee safety concerns while regaining some sense of back-to-business?  Will back-to-business ever return to pre-pandemic business as normal? Last week, the White House released federal guidelines for “Op

You negotiated and signed the terms for purchasing construction materials for the project. The project begins, but the materials arrive late or, worse yet, not at all. What can you do to avoid or mitigate liability for a breach of contract claim?  Our COVID-19 page has covered many related topics, including the applicability of a force majeure clause.  But what if your contract doesn’t include such a clause or some other alternative?  Many times, material is supplied under an invoice or purchase order, with no written purchase agreement or terms and conditions.  If the materials qualify

One version of the Golden Rule—he/she who holds the gold makes the rules—is particularly true when it comes to suspension or termination clauses in design and construction contracts.  In one of the tell-tale clues of who prepared the contract, termination clauses and suspension clauses (to a lesser extent) typically give all the power to the person who prepared the contract.  For example, if an owner prepared the prime contract, the owner typically has all the rights to terminate the contract; the general contractor usually has none.    Aside from making an interesting anecdotal study