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OVERVIEW

Scott R. Murphy
Partner

Grand Rapids

171 Monroe Avenue N.W.
Suite 1000
Grand Rapids, MI 49503-2694

P 616-742-3938

F 616-742-3999

OVERVIEW

Scott R. Murphy
Partner

Grand Rapids

171 Monroe Avenue N.W.
Suite 1000
Grand Rapids, MI 49503-2694

P 616-742-3938

F 616-742-3999

For nearly 20 years, Scott has represented construction owners, contractors, and subcontractors in connection with public and private projects involving energy, transportation, infrastructure, industrial, commercial, and residential works of improvement.

OVERVIEW

For nearly 20 years, Scott has represented construction owners, contractors, and subcontractors in connection with public and private projects involving energy, transportation, infrastructure, industrial, commercial, and residential works of improvement.

He provides construction counseling and advice to clients on any number of issues that arise during a construction project, including project planning and procurement, and drafting and negotiating construction contracts ranging from standard American Institute of Architects (AIA) contract documents to complex engineer procurement and construction (EPC) contracts. He advises clients on claims avoidance, including in relation to the validity of change orders, delay claims and liquidated damages.

Scott has considerable experience prosecuting and defending multi-million dollar extra work, delay, and disruption claims in state and federal courts and arbitrations.

With knowledge regarding virtually every kind of claim or dispute related to construction projects and the impacts on the individuals and businesses in the field, Scott serves as vice chair of the firm's Construction Law Practice Group.

His specific areas of focus include the following:

Construction Law Consulting and Litigation

Scott uses his vast experience representing private and public companies, municipalities, owners, contractors and subcontractors in a wide range of construction disputes and risk management counseling. On their behalf, he drafts construction agreements for a variety of applications ranging from distribution and manufacturing centers to combined cycle power generation plants. He also has deep litigation experience handling construction defect claims, delay/acceleration claims, differing site condition claims, superior knowledge claims and mechanics lien disputes across the country and specifically under the Michigan Builders Trust Fund statutes.

Energy and Utility Construction

Scott possesses targeted skills in connection to the energy, power plant and pipeline industries. For clients in those industries and for major equipment producers, he drafts, negotiates and litigates EPC and AIA contracts as well as standalone construction contracts. In addition, he has worked on projects involving combined cycle power plants valued in excess of $300 million, international waste to energy plants valued in excess of $500 million, paper plant expansion projects as well as gas pipeline expansion projects both from a contractual and litigation perspective.

Specifically, Scott has served as special counsel for a municipality for over five years in connection with the design and construction of a 125 MW gas-fired combined cycle power plant. In this role, he drafted and negotiated purchase agreements for the procurement of major power equipment including combustion turbine generators (CTGs), heat recovery system generators and a steam turbine generator valued in excess of $60 million. He also drafted, negotiated and administered the EPC contract with joint-venture EPC firms valued in excess of $140 million. In addition, Scott negotiated long term service agreements for the CTGs valued in excess of $40 million and developed strategies for risk avoidance and insurance programs both before and after first fire.

Professional and Community Involvement

Member, Construction Law Forum of the American Bar Association

Member, Construction Lawyers Society of America

Member, Association of Builders & Contractors

Honors

The Best Lawyers in America, 2015-2019

Michigan Super Lawyers, Rising Star, 2012-2013; Super Lawyer, 2018-2019

EXPERIENCE
  • Defended firm client, Eric Kus, the former CEO of a tier-two automotive supplier, Eagle Trim, Inc., from an Internal Revenue Service (IRS) tax assessment in excess of $1 million. The lengthy case lasted more than 13 years and included two trips to the U.S. Court of Appeals for the Sixth Circuit and to the U.S. District Court for the Eastern District of Michigan. The complicated matter, resolved in 2017, involved trust fund tax liability, alleged fraud by parties other than Kus, and alleged failure to pay employee withholding taxes in 2000. After reversing the district court on two separate occasions, the Sixth Circuit remanded the case back to the district court to conduct proceedings on the appellants' right to recover the assets that were seized by the IRS over the past 10 years in satisfaction of the original judgment.
  • Obtained summary judgment in favor of a steel manufacturer in an intentional tort case where employer disconnected a laser curtain and employee’s leg was struck by a steel bundle allegedly causing permanent damage. The district court rejected plaintiff’s claims that the employer committed an intention tort and held that plaintiff’s sole remedy was under the workers compensation statute. The district court’s decision was affirmed by the Sixth Circuit Court of Appeals.
  • Defended a building products manufacturer who prevailed in a significant case before the Sixth Circuit Court of Appeals. The case arose from allegations about the performance of an insulated glass (IG) component product. An IG fabricator alleged the product was defective and asserted contract, warranty and fraud claims. The defense addressed complex issues of expert disqualification, spoliation, causation, choice of law, and a host of others. The district court granted summary judgment for our client, and the Sixth Circuit affirmed in all respects.
  • Represented a fat and oil manufacturer prevailing at trial in an adversary proceeding pending in the United States Bankruptcy Court for the Western District of Michigan. Michigan Protein was sued by the Chapter 7 Trustee pursuant to section 549 of the Bankruptcy Code alleging that the debtor in possession was not authorized to make certain post-petition transfers in the amount of more than $834,000. After receiving evidence from a number of witnesses, the court entered judgment in favor Michigan Protein and held that the transfers were in the ordinary course of business and, thus, protected by Section 363(c)(1) of the Code. The case had been ongoing for a couple of years and involved application of two judicially developed tests, the horizontal and vertical tests, to determine whether the transactions were within the ordinary course.
  • Represented a steel manufacturer in a breach of contract case involving the purchase of silicomanganese from a raw material supplier. Defendant was the only supplier of silicomanganese in North America and refused to honor a blanket purchase order issued by the plaintiff after the silicomanganese market crashed and caused the price to escalate. On behalf of the plaintiff, firm attorneys persuaded the district court to reject the defendant’s argument that it never accepted the purchase order pursuant to the UCC. After a bench trial, the district court awarded the firm client approximately $600,000, which reflected the damages incurred by the client when it had to cover at a higher price.
  • Represented pharmaceutical drug manufacturer in a declaratory judgment action seeking a declaration from the district court that defendant had a common law duty to indemnity manufacturer from product liability claims. Although the contract between the parties contained an indemnification provision which required the manufacturer to indemnify the defendant for its own negligence, the court held that such a provision was unenforceable under Michigan law and granted manufacturer’s motion for summary judgment on its claim for common law indemnification. 
  • Defended a major bank in a check fraud case where it was alleged by the plaintiff that the bank was liable for conversion by paying over a forged endorsement. According to the complaint filed by the plaintiff, it discovered that its bookkeeper embezzled nearly $1.0 million by engaging in “double forgeries” whereby the employee would forge both the drawer and payee’s signature on payroll checks. The circuit court to grant summary disposition in favor of the payor bank, finding that the depository bank was solely liable for check conversion in “double forgery” cases.
  • Represented a manufacturer of grandfather clocks in an employment discrimination lawsuit brought by an employee under the Americans with Disabilities Act. The plaintiff had his right leg amputated due to complications from diabetes and took an extended leave of absence after recovering from surgery. Based on the restrictions imposed by plaintiff’s doctor, the employer argued that he could no longer perform the essential functions of job as clock repair person and that no reasonable accommodation was available. Based on controlling Six Circuit precedent, firm attorneys prevailed on the employer’s motion for summary judgment and persuaded the district court to find that plaintiff could not make a prima facie case under the ADA. This case was appealed to the Sixth Circuit but later dismissed by the plaintiff. 
  • Represented a Fortune 500 company in connection with claims against its warehouse service provider arising out of the collapse of a roof at a facility located in Carlisle, Pennsylvania. Our investigation revealed that a large amount of snow and ice had accumulated on the roof, and that this was a concurrent cause of the roof collapse. On behalf of our client, firm attorneys persuaded the arbitrator to reject the service provider’s argument that it was not liable because the roof collapse was also caused by a defect in the steel girder and truss connections supporting the roof. The arbitrator awarded our client approximately $2.4 million, which was the majority of the damages sought.
  • Represented principals of Trainor Glass Company who were sued by a bonding company after the company filed for bankruptcy and failed to complete over 20 construction projects throughout the United States. The bonding company alleged that it paid over $15 million to satisfy performance and payment bond claims and sought reimbursement from the principals under a general indemnity agreement. The circuit court dismissed the lawsuit for lack of subject matter jurisdiction because the project giving rise to the bonding company’s claims was located on sovereign land owned by Native Americans.
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