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30 Jan, 2014

Forum Selection Clauses—where are you going to litigate?

By |2018-04-23T23:55:15+00:00January 30th, 2014|Construction Contractor Advisor, Construction Contracts|

Late last year, the United States Supreme Court ruled that forum selection clauses in a construction contract are enforceable and, in some states, may require a construction dispute to be litigated outside of the state in which the project is located. The case, Atlantic Marine Construction Co. Inc., involved a construction project in Texas. Atlantic Marine was awarded a project at Fort Hood and subcontracted with J-Crew Management, a Texas [...]

29 Jan, 2014

WHO HAS A DUTY TO NOTIFY AN EXCESS INSURER? The Policyholder or the Primary Insurer?

By |2018-04-23T20:59:43+00:00January 29th, 2014|Claim Notice, Excess and umbrella policies, Midwest Insurance Law Guide|

  THE BOTTOM LINE: BOTH! The policyholder has a duty to provide notice under the terms of the contract.  The primary insurer has a duty under guidelines adopted by the industry.  A standard form excess insurance contract contains a clause requiring the policyholder to notify the insurer of a loss. While the policyholder's duty may be excused - a topic for another blog post - courts have generally held that this notice is a condition precedent [...]

28 Jan, 2014

Texas Contractors Win Big–CGL Covers Work Defects

By |2018-04-23T23:55:15+00:00January 28th, 2014|Construction Contractor Advisor, Insurance coverage|

The Texas Supreme Court recently ruled that a general contractor has coverage for construction defects under its Commercial General Liability (CGL) insurance where the contract required the work to be performed in a good and workmanlike manner. While this may sound like no big deal, this was the most anticipated opinion of the year. As is often the case in litigation over insurance policies, the debate over coverage delves deeply into [...]

24 Jan, 2014

A Defense Verdict for Partner, Sean Minahan

By |2018-07-11T18:17:17+00:00January 24th, 2014|Latest News, News|

On January 17, LDM Attorney, Sean Minahan, obtained a defense verdict on behalf of Johnson Sand & Gravel, Co. in Polk County, Nebraska, which was sued by a neighboring landowner for crop damage caused by flooding.  The landowner alleged Johnson Sand & Gravel negligently blocked the natural drainage of rain water in the area causing water to back up onto the landowner’s fields resulting in approximately $200,000 in lost corn [...]

23 Jan, 2014

Liquidated Damages—A Great Tool, But Hard to Use

By |2018-04-23T23:55:15+00:00January 23rd, 2014|Construction Contractor Advisor, Construction Contracts|

I had lunch with the American Society of Professional Estimators (ASPE) the other day and we discussed construction contracts. There were a lot of questions about liquidated damages. As I explained during the meeting, liquidated damages can provide some certainty about damages under a contract, but if the clause is unreasonable, it will not be enforced. Here is some more information on liquidated damages. What are Liquidated Damages? Liquidated damages [...]

22 Jan, 2014

A Dose of Perspective on Doctor Tardiness

By |2018-04-23T23:52:19+00:00January 22nd, 2014|Midwest Medical Legal Advisor|

There is a blog being circulated right now that addresses frustrations over doctor tardiness.  The woman who writes the blog is married to a pediatric physician and wants everyone to remember the reason why a physician might be running late to a dinner /next appointment/ anniversary date night / sporting event.  There is always an appointment before our own.  She writes: “We may never know what struggles the child and [...]

21 Jan, 2014


By |2018-04-23T20:59:43+00:00January 21st, 2014|Homeowner's policy, Insurance contract, Midwest Insurance Law Guide|

THE BOTTOM LINE:   If a specific peril's policy does not define theft, a court will use a broad definition that may ultimately allow coverage.    In a recent case, Peterson v. Homesite Indemnity Co., 287 Neb. 48 (Dec. 20, 2013),  the Nebraska Supreme Court reviewed a standard coverage clause on theft.  The policyholder had hired a moving company to transport his household goods to Florida.   The cost of the move was based upon the weight [...]

21 Jan, 2014

Know your Site — or Pay the Price

By |2018-04-23T23:55:15+00:00January 21st, 2014|Construction Contractor Advisor, Construction Contracts|

Contractors are supposed to be familiar with the site and any conditions that may impact the project. AIA contracts typically include the contractor’s obligation to become familiar with the site. Yet, time and time again, site conditions cause delays and other problems on the project. The contractor on the  Seattle Tunnel project appears to be having a site condition issue on the project. Some of you may have seen all [...]

16 Jan, 2014

Arbitration Clauses Must Be Clear and Consistent

By |2018-04-23T23:55:15+00:00January 16th, 2014|Construction Contractor Advisor, Construction Contracts|

I bring you a case from Hawaii to warm you through this cold snap we are having. A recent case required the parties to litigate whether the arbitration clause in the contract applied to the supplemental conditions and the damages caused by the work done under the supplemental conditions. The contract at issue contained a boilerplate arbitration agreement:  Any claim arising out of or related to the contract . . [...]

14 Jan, 2014

Nebraska Slowly Buying into Obamacare

By |2018-04-23T23:57:56+00:00January 14th, 2014|Health Care Law, Midwest Medical Legal Advisor, Tort Reform|

The Omaha World Herald recently reported that Nebraska has seen a surge in applicants for coverage under the Affordable Health Care Act aka Obamacare.  In its article, Obamacare: Health Plan Enrollment Surges in Iowa, Nebraska, the World Herald reports that, in Nebraska, 14,464 people had enrolled in a plan by the end of December.  That's more than seven times as many as the 1,965 Nebraskans who had enrolled through the [...]

13 Jan, 2014

Truth is Scarier than Fiction—Union Extortion

By |2018-04-23T23:55:15+00:00January 13th, 2014|Construction Contractor Advisor, Unioin Campaign|

A press release from the FBI revealed that three union members admitted to being involved in a campaign of threats, violence, and property destruction against non-union contractors to force them to enter into a collective bargaining agreement. This almost sounds like the plot of a bad Steven Seagal movie. The tactics used by the union members are alarming. One member stabbed a contractor in the neck, beat him up in a [...]

10 Jan, 2014

Partner Mark Novotny Speaks on Current Health Care and Risk Management Topics

By |2018-07-11T18:17:17+00:00January 10th, 2014|Latest News, News|

Presenting to the Johnson County Hospital Medical Staff, LDM Partner Mark Novotny recently spoke on current topics concerning health care and risk management.  Attended by medical, nursing and physician assistant staff, the Power Point slide show and discussion provided examples of critical situations and solutions to avoid patient misunderstandings and avert medical malpractice claims and lawsuits before they start.

9 Jan, 2014

Senate Considers Another Independent Contractor Misclassification Bill

By |2018-04-23T23:55:15+00:00January 9th, 2014|Construction Contractor Advisor, Worker Classification|

The Senate is considering Payroll Fraud Prevention Act which would impose significant penalties on contractors that misclassify their employees as independent contractors. The bill’s sponsors deem this practice payroll fraud and assert that employers that engage in payroll fraud evade tax laws and deprive workers of benefits and workers compensation protection. This is the ninth independent contractor misclassification law introduced since 2007. Given the current discord in Congress, the chances [...]

7 Jan, 2014


By |2018-04-23T20:59:43+00:00January 7th, 2014|Midwest Insurance Law Guide|

THE BOTTOM LINE:  NO! In the case of First Express Services Group, Inc. v. Easter, 286 Neb. 912 (2013 Neb.), the Nebraska Supreme Court found that a customer list is not a trade secret. The opinion turned on the unique nature of crop insurance and the Nebraska Trade Secrets Act - Neb. Rev. Stat. 87-502(4).  Nebraska courts are reluctant to protect customer lists to the extent that they embody information that is [...]

7 Jan, 2014

New OFCCP Regulations and What They Mean for You

By |2018-04-23T23:55:15+00:00January 7th, 2014|Construction Contractor Advisor, Office of Federal Contract Compliance Programs (OFCCP)|

As discussed in earlier blog posts, here and here, the Office of Federal Contract Compliance Programs (“OFCCP”) issued the Final Rules for the Vietnam Era Veteran’s Readjustment Assistance Act (“VEVRAA”) and Section 503 of the Rehabilitation Act. This blog, written by David Voorman, identifies the most significant changes to the rules.     Three significant revisions were made to VEVRAA, and five significant revisions were made to Section 503. VEVRAA [...]

2 Jan, 2014

EEOC Position Statements—Your reason for firing better be consistent

By |2018-04-23T23:55:15+00:00January 2nd, 2014|Construction Contractor Advisor, Employment Discrimination|

Why was that employee fired? If you are responding to a charge of discrimination filed with the EEOC or the NEOC, you had best make sure your reason for termination is consistent with all other written explanations of the employee’s termination. Otherwise, you could be looking at a trial instead of dismissal. A recent case out of the Court of Appeals brings home this point. In that case, the employer [...]