Nebraska Construction Law - Lamson Dugan & Murray LLP

23 Oct, 2023

Is a Contractor Entitled to Prejudgment Interest on Contracts in Nebraska?

Craig Martin2023-10-23T14:54:17-05:00October 23rd, 2023|Construction Contractor Advisor, Construction Contracts, Nebraska Construction Law|

In a recent ruling by the Nebraska Supreme Court, the answer was YES. Nebraska’s prejudgment interest statute provides that parties are entitled to twelve percent (12%) interest per annum on money due on any instrument in writing (such as a contract), unless the parties agree on another amount or to waive contractual interest. The statute provides that the account bears interest from the date of billing unless paid within thirty [...]

4 Apr, 2023

Selecting the Right Arbitrator for Your Case

Matthew Karnes2023-06-28T11:33:22-05:00April 4th, 2023|Arbitration, Construction Contractor Advisor, Construction Industry, Construction Law, Nebraska Construction Law|

Maybe you have negotiated with your counterpart to include an arbitration provision in your construction contract or picked up a form contract that selects arbitration as the method of dispute resolution. Regardless of the circumstances, when the time and need for arbitration comes, the big question remains, who will be the arbitrator(s) tasked with the fate of my case, my client, my company or my project?When it comes down to [...]

10 Mar, 2023

Winning Isn’t Everything . . . Unless You Can Collect: The Nebraska Supreme Court’s Recent Cautionary Holding

Callie Kanthack2023-05-03T08:52:00-05:00March 10th, 2023|Construction Contractor Advisor, Latest News, Nebraska Construction Law|

Unfortunately, winning a case does not guarantee that you will collect money. The court is not responsible for collecting the judgment. Rather, if the judgment debtor (losing party) does not voluntarily pay the judgment to the judgment creditor (winning party), the judgment creditor must take action to collect. For construction cases, the issue becomes more complicated and nuanced where a construction lien is filed on real property owned by a [...]

16 Jan, 2023

How to Protect Yourself When the Job Site Isn’t What You Expected.

Craig Martin2023-01-14T07:59:25-06:00January 16th, 2023|Construction Contractor Advisor, Construction Contracts, Differing Site Conditions, Nebraska Construction Law|

It happens far too often – you show up at a job site that ends up much different than what you anticipated. What is your best course of action? First, look at your contract. Do you have a differing site conditions or changed conditions clause? Absent such a clause, you may be required to assume any additional difficulty, burden, or expense. However, even in the absence of such a clause, [...]

16 Jan, 2023

How to Protect Yourself When the Job Site Isn’t What You Expected

Andrew Wilkinson2023-01-16T01:00:38-06:00January 16th, 2023|Construction Contractor Advisor, Construction Contracts, Differing Site Conditions, Nebraska Construction Law|

It happens far too often – you show up at a job site that ends up much different than what you anticipated. What is your best course of action? First, look at your contract. Do you have a differing site conditions or changed conditions clause? Absent such a clause, you may be required to assume any additional difficulty, burden, or expense. However, even in the absence of such a clause, [...]

31 Oct, 2022

How to Get 12% Interest on Construction Liens

Craig Martin2022-10-31T13:47:55-05:00October 31st, 2022|Construction Contractor Advisor, Construction Lien, Nebraska Construction Law|

You know the construction project is not going well when you are considering filing a construction lien. However, here is a little light at the end of the tunnel—you can now demand that the property owner pay you 12% annual interest on your claim from the date you filed your construction lien. A recent Nebraska Supreme Court decision made this right clear. In Echo Group v. Lund Ross, the material [...]

26 May, 2021

Contractors Do NOT Have to Record Vaccine Reactions

Craig Martin2021-05-25T08:18:30-05:00May 26th, 2021|Construction Contractor Advisor, COVID-19, Nebraska Construction Law, Vaccination|

On May 21, 2021, OSHA reversed course on employer-required COVID-19 vaccinations, no longer requiring employers to record vaccine reactions. This is a great step forward for employers and is supported by both industry groups and labor unions. As you may recall, last February OSHA originally mandated that if an employer required employees to get a vaccine, an employee’s adverse reaction to the vaccination must be recorded in their OSHA 300 [...]

3 Mar, 2021

Lien Waivers—Worth a Thorough Review

Craig Martin2021-02-27T08:28:10-06:00March 3rd, 2021|Construction Contractor Advisor, Construction Contracts, Lien Waiver, Nebraska Construction Law|

Throughout a project, and especially at the end, you are likely being asked to sign a lien waiver. Given the significant impact that these waivers may have on your opportunity to get paid, how closely are you reviewing lien waivers before you sign them? Here are some points to think about before your sign. Is the lien waiver conditional or unconditional? The concern here is whether the lien waiver goes [...]

17 Feb, 2021

I’m Not Getting Paid. Can I Terminate the Contract?

Craig Martin2021-02-13T12:54:55-06:00February 17th, 2021|Construction Contractor Advisor, Construction Contracts, Nebraska Construction Law, Termination|

I’d like to say that the answer is clearly yes, but that’s rarely the case with construction contracts. Ultimately, it will come down to the facts of your situation and whether the construction contract specifically allows you to pull off the job. Not Getting Paid Not getting paid is probably the most popular reason contractors terminate a construction contract. The difficulty arises when we look closely at the circumstances leading [...]

27 Jan, 2021

How to Deal with the Dreaded Pay-if-Paid Clauses

Craig Martin2021-01-26T11:22:56-06:00January 27th, 2021|Construction Contractor Advisor, Construction Contracts, Nebraska Construction Law, Pay-if-Paid|

It seems that more and more general contractors are using pay-if-paid clauses in their construction contracts. Pay-if-paid clauses are some of the most controversial and heavily negotiated clause in construction contracts. This article will explain what pay-if-paid clause is and provides some guidance on how to negotiate around these difficult clauses. A pay-if-paid clause, if properly drafted, pushes the risk of non-payment from the general contractor to you. The clause [...]

20 Jan, 2021

I’m Not Getting Paid. Can I Terminate the Contract?

Craig Martin2021-01-21T08:58:20-06:00January 20th, 2021|AIA Contracts, Breach of Contract, Construction Contractor Advisor, Construction Contracts, Nebraska Construction, Nebraska Construction Law|

I’d like to say that the answer is clearly yes, but that’s rarely the case with construction contracts. Ultimately, it will come down to the facts of your situation and whether the construction contract specifically allows you to pull off the job. Not Getting Paid Not getting paid is probably the most popular reason contractors terminate a construction contract. The difficulty arises when we look closely at the circumstances leading [...]

13 Jan, 2021

Construction Contracts–The Scope of the Work

Craig Martin2021-01-13T14:22:41-06:00January 13th, 2021|Construction Contractor Advisor, Construction Contracts, Nebraska Construction Law, Scope of Work|

Construction contracts can take on many shapes and sizes and there are several important provisions that you should review. But, the most important, in my mind, is the scope of work to be provided. Preventing Costly Overruns Ideally, the scope of work will detail, and limit, the work that is to be provided for the money that the owner is obligated to pay. We recommend that the scope of work [...]

12 Nov, 2020

So You’ve Got A Construction Lien, Now What?

Craig Martin2020-11-12T10:30:43-06:00November 12th, 2020|Construction Contractor Advisor, Construction Lien, Nebraska Construction Law|

Contractors sometime believe that once the lien is filed, they are home free for getting paid. Unfortunately, that is often not the case. There are always concerns about whether the owner has sufficient funds to pay the contractor and subcontractors. Obviously, that is why the lien was filed. There are also concerns about whether there is any equity in the property to satisfy the liens. But, even if you file [...]

4 Nov, 2020

Arbitration versus Litigation

Craig Martin2020-10-31T11:08:55-05:00November 4th, 2020|Arbitration, Construction Contractor Advisor, Construction Contracts, Nebraska Construction Law|

Construction contracts often contain an arbitration or litigation provision. While each forum has its advantages, a question often times overlooked is whether an arbitration provision is enforceable. Litigation is the Default Litigation is the default method of dispute resolution. This is not to say that litigation is the best way to resolve a case. But unless the contract contains an enforceable arbitration agreement, the parties will have to take their [...]

3 Sep, 2020

What Does it Mean to Incorporate the Prime Contract?

Craig Martin2020-09-02T07:23:53-05:00September 3rd, 2020|Construction Contractor Advisor, Construction Contracts, Nebraska Construction Law|

How often have you read that the terms of the prime contract are incorporated into the subcontract? If you read your subcontracts, you’ve probably seen that language in every contract over the last 10 years. But, what does that mean? It means you are bound by the terms of the prime contract, even if you haven’t seen it. Contract Language Most construction subcontracts incorporate the prime or upstream contact. A [...]

26 Aug, 2020

The Economics of Litigation Must Make Sense

Craig Martin2020-08-22T09:11:28-05:00August 26th, 2020|Construction Contractor Advisor, Construction Litigation, Nebraska Construction Law|

Much as the economics of a construction project must make sense, the same is true when you are considering litigation. The costs associated with litigation must be considered in light of the potential recovery. A recent decision from the Nebraska Court of Appeals drove this point home. The case, Scheichinger v Swain Construction, involved the sale of a skid loader and a claim that Swain Construction misrepresented the number of [...]

10 Jun, 2020

Liquidated Damages—They Must have a Reasonable Basis

Craig Martin2020-06-06T09:35:00-05:00June 10th, 2020|Construction Contractor Advisor, Liquidated Damages, Nebraska Construction Law|

A recent case out of Pennsylvania refused to allow an owner to assess liquidated damages for project delay. This case serves as a reminder that if you are including liquidated damages in your construction contract, there must be some reasonable basis for the amount of liquidated damages. In this case, D.A. Nolt v. The Phila. Mun. Auth., the City of Philadelphia sought to enforce a $10,000 per day liquidated damages [...]

3 Jun, 2020

Indemnity Obligations in the Age of COVID-19

Craig Martin2020-05-30T10:12:42-05:00June 3rd, 2020|Construction Contractor Advisor, COVID-19, Indemnity clauses, Nebraska Construction Law|

COVID-19 has created chaos in the construction world. One of the biggest problems is staffing projects to meet deadlines on the project. But, what if your company is hit with a COVID-19 outbreak and you cannot staff the job? Have you already agreed to indemnify the upstream contractor or owner for any damages stemming from a COVID-19 outbreak? We recommend reviewing your indemnity obligations to determine your risk and the [...]

27 May, 2020

Best Practices in Dealing with COVID-19

Craig Martin2020-05-25T08:53:38-05:00May 27th, 2020|Best Practices, Construction Contractor Advisor, COVID Construction, Nebraska Construction Law|

We have all been dealing with the impact of COVID-19, but the situation becomes more personal when one of our own employees reports that he or she is suffering from COVID-19 symptoms. And, with all the guidance out there, it may be difficult to figure out exactly what to do. We sifted through the various CDC guidance and other governmental regulations on this and compiled these best practices on responding [...]

11 Mar, 2020

A Very Bad Day Indeed

Craig Martin2020-03-04T07:53:57-06:00March 11th, 2020|Construction Contractor Advisor, Construction Damages, Construction Defect, Nebraska Construction Law|

As a construction attorney, I am often tasked with confronting architects and engineers on the decisions they made in planning or monitoring construction projects. The vast majority of times, the architect or engineer is well versed in the underlying regulations and codes on which he or she based their decisions. But sometimes, the architect or engineer admits to having no knowledge of the underlying codes and to having no previous [...]

26 Feb, 2020

Can I Borrow Your Backhoe?

Craig Martin2020-02-22T12:21:51-06:00February 26th, 2020|Construction Contractor Advisor, Construction Insurance, Nebraska Construction Law|

Borrowing equipment is a common occurrence on construction sites. But, it’s riskier than you might think. There could be a number of questions about whose insurance is responsible to pay for damages should something go wrong. The Situation A fellow subcontractor has asked to borrow your backhoe for the remainder of the day. You don’t need it for the work you are doing, so you let him borrow it. The [...]

30 Jan, 2020

Construction Contract Basics—Schedule

Craig Martin2020-01-29T09:32:51-06:00January 30th, 2020|Construction Contractor Advisor, Construction Contracts, Nebraska Construction Law|

Last week’s post on the Las Vegas Raiders’ stadium got me thinking about scheduling language in construction contracts. Scheduling is a critically important piece of the construction contract puzzle, yet not all contracts contain firm schedules or even start dates. This may be because the general contractor wants some flexibility as to when the work will start. But, for the subcontractor, an elusive start date can wreak havoc on its [...]

15 Jan, 2020

Construction Contract Basics—Scope of Work

Craig Martin2020-01-11T10:37:04-06:00January 15th, 2020|Construction Contractor Advisor, Construction Contracts, Nebraska Construction Law, Scope of Work|

This year, every other blog post will address common construction contract clauses. My hope is that my readers will either find the content a good refresher or provide a new understanding of common construction clauses. Today, I’ll address the Scope of Work provision. Some contractors and construction attorneys would argue that the Scope of Work provision in the contract is the most important section because it defines what a contractor [...]

31 Dec, 2019

The Vagaries of Litigation

Craig Martin2019-12-30T07:30:19-06:00December 31st, 2019|Construction Contractor Advisor, Construction Litigation, Nebraska Construction Law|

Over the past few years, I’ve posted blogs about the Seattle Viaduct project and the problems Bertha, the tunnel-boring machine, ran into on the project. Not surprisingly, the parties sued each other. And, Big Bertha’s problems continued into the courtroom. As some of you may recall, Big Bertha was launched with much fanfare, then ran into a pipe and stopped working. The project was finally completed in February, 2019, three [...]

17 Dec, 2019

OSHA Inspections Continue to Rise

Craig Martin2019-12-14T12:28:58-06:00December 17th, 2019|Construction Contractor Advisor, Nebraska Construction Law, OSHA|

Earlier this month, OSHA released its final statistics for 2019 and they show a significant increase in the number of inspections. But, OSHA also provided a record number of compliance training opportunities for employers. OSHA Inspections This past year, OSHA conducted 33,401 inspections addressing violations related to trenching, falls, chemical exposure, silica and other hazards. This is up nearly 1,400 from the previous year. OSHA Training OSHA also provided a [...]

10 Dec, 2019

What is a “Waiver of Subrogation” in Construction Contracts?

Craig Martin2019-12-07T12:15:51-06:00December 10th, 2019|Construction Contractor Advisor, Construction Contracts, Nebraska Construction Law, Subrogation|

Waiver of Subrogation clauses are contained in nearly every form construction contract. Contractors sign them as a matter of course, but how often do you actually consider what it means to waive subrogation? In this blog, we’ll discuss what subrogation is and why it’s usually a good idea to waive it. What is Subrogation? Legally speaking, subrogation is a concept that allows an insurance company that has paid a loss [...]

22 Nov, 2019

A Bond is NOT Insurance

Craig Martin2019-11-22T09:23:13-06:00November 22nd, 2019|Bond Claims, Construction Contractor Advisor, Insurance coverage, Nebraska Construction Law|

There are fundamental differences between insurance and surety bonds and knowing the difference will help you avoid making mistakes, should claims arise. This blog will discuss the differences between insurance and surety bonds. Insurance An insurance policy is a two party contract between an insurer and the insured. The policy is intended to protect the insured. The cost of insurance is calculated by the insurer based on how many claims [...]

6 Sep, 2019

Can a General Contractor Be Liable for a Subcontractor’s Employee’s Injury?

Craig Martin2019-09-05T09:08:32-05:00September 6th, 2019|Construction Contractor Advisor, Nebraska Construction Law, Risk Management|

The short answer is maybe. Nebraska courts have long held that a general contractor can be held liable for a subcontractor’s employee’s injury, but only if the general contractor exercises significant control over both the worksite and the subcontractor. The question becomes whether the general contractor’s conduct demonstrates this control. A general contractor that retains control over a subcontractor’s work has a duty to use reasonable care to prevent injuries [...]

22 Aug, 2019

Filing Your Construction Lien on Time

Craig Martin2019-08-19T14:46:36-05:00August 22nd, 2019|Construction Contractor Advisor, Construction Lien, Nebraska Construction Law|

As we have discussed in other blog posts, filing a construction lien on time is critical to preserving your claim. If you file a construction lien in Nebraska outside of the 120-day window, your lien will be invalid. This past week, we filed a construction lien electronically in Douglas County. This means that we submitted the lien on-line and waited for a Douglas County employee to review the lien and [...]

16 Aug, 2019

Will You Get Paid for Delays? No Damage for Delay Clauses Say No.

Craig Martin2019-08-16T14:47:48-05:00August 16th, 2019|Construction Contractor Advisor, Nebraska Construction Law, No-damage-for-delay|

No-damage-for-delay Clauses are commonplace in construction contracts. But, have you ever read one and wondered if they are enforceable? Courts across the country have consistently enforced them and these clauses will severely limit your ability to recover damages caused by delays, even if the delays were not caused by you. What is a No Damage for Delay Clause A no-damage-for-delay clause is just that, a clause that explains that if [...]