Monthly Archives: August 2012

2000 Projects Reported in 2012!

Builders Exchange has reported on its 2000th project of the year!

Last year this benchmark was met in mid-October, so we’re nearly two months ahead of schedule!

Keep track of where we’re at on our home page, where we update the project count daily!

New Special Events Committee for Builders Exchange of Kentucky

Hello, my name is Don Woods and I am the chairman for the new Special Events Committee at Builders Exchange of Kentucky.  I am pleased to not only introduce myself today but to give the members of the Exchange an inside look at the mission of the committee.

Recently, John Cary, the Executive Vice President of the Builders Exchange, asked if I would consider chairing this committee due to my experience at Lamkin Wealth Management.  There, I oversee one of the most aggressive event schedules within my industry and want to share that experience with the Exchange.  At Lamkin Wealth Management, we have discovered the power of properly planned and diversified events can not only raise the presence of a group but can maximize its effectiveness.

The vision that I have for the Special Events Committee is to find a variety of entertaining events that compel the membership to become more actively involved plus introduce an ongoing series of programs that promote education and growth of our members. With that, we have a clear cut mission of providing a greater service commitment to each of our members that will allow them to further their business goals and needs.

This committee will focus to promote the very core strength of Builders Exchange, which is the membership of the association.  As an organization of almost 1,000 businesses, members can establish both a working relationship with each other which can be a tremendous asset for your company.  Once again, the Special Events Committee will help create this networking atmosphere for companies to connect with each other.

The committee will want to learn from our members the true needs that are important in today’s business climate so we can provide the resources through our special events to help your firm prosper and grow.  In a business climate as difficult as today’s we feel the association can become a vital part of helping our members thrive and grow.

Currently, John and I are in the process of asking others to become members of this committee in helping us promote the association to a new level of visibility. If any current member would like to become involved with this committee or to learn more about ways to become involved with some of our events please contact John Cary for more information, 502-459-9800 or

I look forward to sharing with you in the next newsletter some of the details of our upcoming events and provide more information on our plans to help the association better promote all the members in the Builders Exchange of Kentucky.

Thank you.

Don Woods, Lamkin Wealth Management
Special Events Committee
Builders Exchange of Kentucky

Recovery of Damages for Breach of a Construction Contract

By: J. Mark Grundy – 502-587-3628
Jeffrey A. McKenzie – 502-587-3594

Bingham Greenebaum Doll LLP
3500 National City Tower
101 South Fifth Street
Louisville, Kentucky 40202

Kentucky allows recovery of a variety of damages when there has been a breach of a construction contract or wrongful conduct within the context of a construction job.  Actual and incidental contract damages are generally recoverable unless they are otherwise excluded in the contract.  Oftentimes, construction contracts have liquidated damages clauses which state the precise dollar amount of damages that may be recovered in the event of a breach of the contract.  Kentucky courts enforce liquidated damages clauses as long as they have some reasonable relation to the transaction.

Consequential damages are damages resulting from a party’s breach of contract that are not directly related to the breach of the contract itself.  To be recoverable in Kentucky, such damages must have been a foreseeable consequence of the breach at the time the contract was entered.  Such damages may include delay, lost profits, loss of bonding capacity, financial costs, and unabsorbed overhead.  Generally, the courts will enforce reasonable contract clauses that waive the recovery of consequential damages.

The Kentucky Fairness in Construction Act (“KFCA”), adopted in 2007, contains exculpatory clauses regarding damages.  The Act states that certain types of clauses in contracts are unenforceable, including no damages for delay clauses, which attempt to waive the right of a contractor or subcontractor to recovery costs, time or damages for delay, which are in control of the real owner of the property or the public facility.  The Act applies to commercial properties, not residential properties and certain utilities.  Therefore, delay and disruption damages may be recovered as consequential damages, unless too remote or if they violate the provisions of the KFCA.

In addition, Kentucky has a statute, Ky. Rev. Stat. Ann. § 371.180, that provides “any provision contained in any construction services contract purporting to indemnify or hold harmless the contractor from the contractor’s own negligence or from the negligence of his or her agents, or employees is void and wholly unenforceable.”

Attorneys’ fees are not recoverable as damages unless provided for in statute (such as provided in Kentucky Building Code) or by the contract.  The Kentucky Building Code is a unique and powerful statutory provision that requires payment of either the cost to repair to bring the property up to code compliance, payment of the diminution in fair market value of the property because of code infractions, plus a possible award of the cost of litigation, including attorneys’ fees.  See Ky. Rev. Stat. Ann. § 198B.130.

Kentucky allows statutory interest on pre-judgment amounts if those amounts are liquidated, and post-judgment interest at a statutory rate.

Kentucky will allow stigma damages only where there has been a “physical injury to the property.”  Mercer v. Rockwell Int’l Corp., 24 F. Supp. 2d 735 (W.D. Ky. 1998).

Kentucky allows for the recovery of punitive damages if there is tortious wrongful conduct, which is malicious or wanton in nature.  Punitive damages are not available for breach of contract.

The Kentucky Supreme Court has clarified that Kentucky follows the economic loss doctrine, stating that where there is only economic damage, and no personal injury, then contract principles rather than tort principles apply.  Kentucky courts strongly favor arbitration clauses, and will resolve any ambiguity in a contract provision regarding arbitration in favor of arbitration.  Kentucky has a statute for arbitration procedure, providing for very limited appeal of arbitration damage awards absent manifest injustice, or a clear accounting error.  The actual procedure for arbitration is usually provided for in the contract, along with provisions as to recoverable damages.

IPIN Tip of the Month: IVS Pro Viewer Basics and Measuring/Markup Tools (Part 1)

Driving to a planroom, flipping through plus-sized blueprints, busting out your scale ruler, and writing down each measurement by hand. This was the way takeoffs were done in the not-so-distant past. In today’s information age, online digital takeoff tools have replaced these physical tools. Builders Exchange members have access to one such powerful tool: the IVS Pro Viewer.

Last month I covered the IVS Lite Viewer; our plan viewer that gives members the ability to quickly view, print and save plans. In this edition I’ll cover the basics of the IVS Pro Viewer and the first five major measurement and markup tools.

The Pro Viewer includes most of the tools that the Lite Viewer features: the ability to zoom in and zoom out, magnify specific areas, jump to different sections of the plans, and save and print documents. In fact, the two viewers are so similar that all of the viewing tools covered for the Lite Viewer work the same way for the Pro Viewer. If you need a refresher on these functions, refer to last month’s tip (linked above).

Click this and the other images to enlarge

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