Congratulations to Trial Attorney and Principal Mac W. Cabal for securing a prompt payment penalty construction victory for the client in arbitration. The client was a subcontractor who entered into a construction contract with a general contractor. The contract did not contain a prevailing party attorney fee provision. Indeed, just the opposite, the contract explicitly provided the parties would pay their own attorney’s fees and costs. The general contractor relied upon that contractual provision to defend the case. However, Mr. Cabal successfully argued that liability in the case did not flow exclusively from the contract but from the prompt payment statutes themselves. And those statutes provide for recovery of attorney’s fees and costs as a matter of law, notwithstanding the contract provisions to the contrary. But critically, Mr. Cabal successfully argued at arbitration that while statutory progress payments can be waived by contract, retention cannot. The arbitrator agreed and awarded the client all of its retention, plus attorney’s fees, plus costs, and the 2% per month statutory prompt payment interest on top of that. The ultimate disposition resulted in the client being awarded nearly five times the amount in dispute. It was a clean sweep for the client.
Congratulations to the client and Mr. Cabal for securing the holy grail of construction remedies (prompt payment) and achieving a decisive victory in arbitration.
