Without A Fee-Shifting Provision, Recovery Of Attorney's Fees Is Highly Unlikely In Construction Disputes

In my representation of clients in the construction industry, a question that continually arises (the answer to which often causes frustration) is whether my client can recover its attorney's fees.  The answer to that question is generally "no" unless the underlying contract contains what is known as a "fee-shifting" provision.  This provision allows the winning or "prevailing" party to recover its fees and expenses from the losing or non-prevailing party if the dispute goes through a trial or arbitration that results in a judgment or award.  Otherwise, and subject to some other exceptions, Virginia follows "the American Rule" which provides that each party shall bear its own legal costs.  The question of recovery of attorney's fees comes up frequently in mechanic's lien and payment bond claims:

Construction disputes almost always involve contract issues.  Contractors should therefore include fee-shifting provisions in their contracts and subcontracts to preserve their rights to recover attorney's fees in the event of disputes.

Spotts Fain publications are provided as an educational service and are not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.


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