Latest News

22 Sep, 2021

The worst $333 never spent and the continuation of the common fund doctrine.

2021-09-22T13:54:28-05:00September 22nd, 2021|Appealing Litigation, Latest News|

The common fund doctrine is alive and well in Nebraska, according to the Nebraska Supreme Court.  In Hauptman, O’Brien v Auto-Owners Ins. Co., 310 Neb. 147, - - N.W.2d - - (September 17, 2021), an injured plaintiff’s law firm sued Auto-Owners, the plaintiff’s automobile insurer. The insurer refused to reduce its $1,000 medical payment subrogation interest pursuant to the common fund doctrine. Standard Practice The common practice in Nebraska is [...]

15 Sep, 2021

Biden Executive Orders Mandates Vaccines for Federal Contractors

2021-09-13T17:39:11-05:00September 15th, 2021|Construction Contractor Advisor, COVID-19, Federal Construction Projects, Government Regulations|

On September 9, 2021, the Biden Administration issued an Executive Order “Ensuring Adequate COVID Safety Protocols for Federal Contractors.” While the details are not entirely clear, it appears that in the next few weeks, federal contractors will have to provide evidence of vaccination of their employees working on federal projects. Implementation The Safer Federal Work Task Force has been directed by Executive Order to issue guidelines by September 24, 2021, [...]

25 Aug, 2021

Best Lawyers In America 2022

2021-08-25T14:25:51-05:00August 25th, 2021|Latest News|

Lamson Dugan & Murray LLP is proud to announce that 15 of their attorneys have been recognized in the 28th Edition of The Best Lawyers in America. This recognition is awarded to individual attorneys with the highest overall peer-feedback for a specific practice area and geographic region. Congratulations to the following Partners! Appellate Practice William R. Settles Bet-the-Company Litigation William M. Lamson, Jr Closely Held Companies and Family Businesses Law [...]

25 Aug, 2021

Daniel Waters – Presenter at the Ag Law Summit

2021-08-25T13:32:21-05:00August 25th, 2021|Latest News|

Daniel Waters, Partner at Lamson Dugan & Murray LLP, will be presenting at the Ag Law Summit: Law, Tax, and Regulation in America on Friday, September 3, 2021 at Mahoney State Park in Ashland, Nebraska. Mr. Waters will be presenting on Farm Succession and Continuity Planning. His presentation will discuss the challenges of transitioning an agricultural business across multi-generations. This event is hosted by the Washburn University School of Law. [...]

10 Aug, 2021

Judicial Response to COVID-19 – UPDATES x15

2021-08-10T09:40:24-05:00August 10th, 2021|COVID Court, COVID-19|

Updates in red Due to the global pandemic of COVID-19, a public health emergency has been declared in the United States.  Experts say that one of the most effective ways to protect against this disease is to limit the risk of exposure.  This has prompted the “Stay at Home” movement for many Americans, but many judicial matters still need prompt attention during this time.  Varying regulations have been put into [...]

4 Aug, 2021

Just say no to drugs?  How Iowa law requires extraordinary efforts by employers to enforce a drug testing policy

2021-07-31T07:14:46-05:00August 4th, 2021|Construction Contractor Advisor|

The illegal use of drugs by employees presents a host of issues for employers – from safety to work place errors to morale.  A well thought out and written drug testing policy has been a key tool in an employer’s tool box to manage its workforce and to prevent potentially catastrophic results from illegal drug use at work.  However, at least in Iowa, the task of creating and complying with [...]

28 Jul, 2021

Material Costs Continue to Rise—What’s a Contractor to do?

2021-07-24T09:08:33-05:00July 28th, 2021|Construction Contractor Advisor, Construction Contracts, Escalation Clause|

While COVID has made the past year wild and unpredictable, this summer could be even wilder with rapidly escalating material costs.  Lumber prices have tripled, steel prices are through the roof and PVC has doubled. These increases can turn into real numbers on your projects and if you don’t have any protections in place, the project could turn ugly in a hurry.  Now is the time to review your current [...]

13 Jul, 2021

Partners Daniel Chesire and Mark Novotny Recognized by the Nebraska Defense Counsel Association

2021-07-13T14:36:54-05:00July 13th, 2021|Latest News|

At this year’s annual meeting the Nebraska Defense Counsel Association recognized Daniel Chesire and Mark Novotny for their excellent work as defense trial attorneys.  Dan received the Masters Emeritus Award and Mark received the Defense Counsel of the Year Award.  Congratulations Dan and Mark! The Nebraska Defense Counsel Association is a state-wide association dedicated to serving the needs of their members.  Membership is open to Nebraska attorneys who devote a [...]

6 Jul, 2021

Iowa Supreme Court Values Closely Held Farm Corps

2021-07-06T11:05:19-05:00July 6th, 2021|Farm Management, Latest News, Midwest Agricultural Law|

A recent case issued by the Iowa Supreme Court addressed the “fair value” of stock in a closely held farm corporation buyout. In Guge v. Kassel Enterprises, No. 19-2151 (Iowa Sup. Ct June 18, 2021), the Court provided clarity for determining what factors Iowa courts consider in calculating the “fair value” of a corporation in lieu of a dissolution proceeding. In Guge, three siblings owned all of the shares of [...]

16 Jun, 2021

How Should You Respond to An Accident on the Jobsite?

2021-06-12T09:43:38-05:00June 16th, 2021|Accident Investigation, Construction Contractor Advisor, OSHA|

If you have ever experienced a serious accident on the jobsite, you know it can be an incredibly stressful experience.  Having a plan in place setting forth how you expect employees to respond will help your company respond competently and quickly to an accident.  Here are a few things to consider for your plan: Prepare a checklist of how you want employees to respond to an accident, including: Who should [...]

26 May, 2021

Murphy’s Law: 5 Reasons to Insist on Written Custom Farming Contract

2021-05-26T14:56:08-05:00May 26th, 2021|Contract, Farm Management, Midwest Agricultural Law|

  VS.      Custom farming agreements seem pretty straightforward and simple.  Landowner asks Custom Operator to till the field, apply the inputs, plant and harvest the crop or cut and bale the hay.  Custom Operator sets a price.  Landowner and Custom Operator shake hands.  Deal is done, right?  Yes, if everything goes right.  No, if the parties run into Murphy's Law of "if anything can go wrong, it will".  [...]

26 May, 2021

Contractors Do NOT Have to Record Vaccine Reactions

2021-05-25T08:18:30-05:00May 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 [...]

12 May, 2021

Another Reason Not to Act As Your Own General Contractor

2021-05-24T14:14:56-05:00May 12th, 2021|Construction Contractor Advisor, Construction Contracts, Statute of Limitations|

The Nebraska Supreme Court recently issued an important opinion concerning the statute of limitations for a homeowners bringing claims against contractors. When an owner acts as his own builder or general contractor, he must file a lawsuit against a subcontractor within four years of the subcontractor completing its work, not within four years of completion of the total home or project. Add this to the list of reasons a homeowner [...]

6 May, 2021

Hassing Named as Panel Counsel for Aircraft Owners and Pilots Association’s Pilot Protection Services Plan

2021-05-06T12:44:57-05:00May 6th, 2021|Latest News|

Partner Daniel J. Hassing was recently added to the list of panel counsel for the Aircraft Owners and Pilots Association’s Pilot Protection Services Plan.  Dan joins just one of a handful of panel attorneys in Nebraska.  Nationwide, the plan consists of a network of 750 panel attorneys across all 50 states. The plan assists pilots with issues affecting the pilot’s airman certificate or medical certificate.  Panel attorneys assist pilots in [...]

28 Apr, 2021

Material Cost Increases—Are you ready?

2021-04-25T12:09:44-05:00April 28th, 2021|Construction Contractor Advisor, Construction Contracts, Escalation Clause|

Construction contractors are seeing material costs increase, particularly lumber, steel and fuel. As you review your contracts for 2021 and beyond, you may want to consider adding a price-escalation clause the protect against material cost increases. What is a price-escalation clause? In its simplest terms, a price-escalation clause allows contractors to recover material cost increases on a project.  While triggering events for escalation clauses vary, the two most popular types [...]

23 Apr, 2021

Hassing Secures Affirmance of Dismissal of Class I Railroad in Missouri Supreme Court

2021-04-23T13:41:55-05:00April 23rd, 2021|Latest News|

The Missouri Supreme Court recently affirmed the dismissal of a toxic tort case obtained by a team led by Lamson Dugan & Murray attorney Daniel J. Hassing.  The decision once again evidences the talent of LDM attorneys who were able to obtain a dismissal in the trial court and then defend it in the appellate courts. In the case, the plaintiff sued a Class I railroad, alleging that occupational exposure to [...]

14 Apr, 2021

I’m sorry I asked.  What You Need To Know About Asking Employees If They Have Been Vaccinated.

2021-04-13T11:41:42-05:00April 14th, 2021|ADA, Construction Contractor Advisor|

During the early days of the Covid-19 pandemic the promise of a vaccine and a return to normalcy was the light at the of the tunnel.  A year later the ability to receive a vaccine is becoming rapidly available to people in almost all age groups, including your employees.  However, with the increased ability to receive the vaccine comes a new question – can you ask your employees if they’ve [...]

7 Apr, 2021

Work Changes and Considerations

2021-04-08T07:25:42-05:00April 7th, 2021|Change Orders, Construction Contractor Advisor, Construction Contracts|

Changes on construction projects are inevitable, especially with the reality of projects during and after the COVID-19 pandemic. Due to this inevitability, owners should consider including contingency in the budget to deal with change orders. Accounting for legitimate changes quickly and obtaining an agreement that the payment fully resolves the issue can limit larger disputes down the road. Unresolved change orders often result in disputes that end up with legal [...]

31 Mar, 2021

Update on PPP Loan Fraud

2021-03-30T07:59:33-05:00March 31st, 2021|Construction Contractor Advisor, PPP Loans|

You may recall a blog post from last year in which I explained that a contractor should not use PPP loan funds to buy a motorcycle or for golf outings.  Well, another contractor was just convicted of PPP loan fraud with similar allegations. Last Friday, a jury deliberated for 2 hours and found the roofer guilty of falsely acquiring $2 million in PPP loans.  That was about enough time for [...]

24 Mar, 2021

Settling your claim? Make sure you get paid.

2021-03-23T08:20:10-05:00March 24th, 2021|Construction Claims, Construction Contractor Advisor|

Your work on the project is done, but your final payment is delayed. You then hear that the owner and general contractor are arguing about final payment.  The owner contacts you directly to pay your final pay application.  You sign the release and get your check. But, the check bounces.  Now what?  You may be out of luck. When entering into a settlement agreement on a construction project, you need [...]

22 Mar, 2021

Vacating Crop Insurance Arbitration Ruling: Is it 3 Months or 1 Year?

2021-04-06T14:02:59-05:00March 22nd, 2021|Arbitration, Crop Insurance, Midwest Agricultural Law|

Which is it? Admittedly I keep going back to the well.  Maybe it is because the rules and procedure for arbitrating a crop insurance claim are too complicated.  Or maybe it is a dead horse and I need to get past feeling the Nebraska Supreme Court improperly ruled against my client in an arbitration claim in 2017. In that case, Karo v. NAU, an arbitrator ruled against the [...]

19 Mar, 2021

Five Things You Should Know About Nebraska’s Legal Malpractice Limitations Period

2021-03-19T12:34:28-05:00March 19th, 2021|Legal Malpractice, Limitation of Liability, Litigation, Nebraska Litigation & Trial Advisor, Statute of Limitations, Statute of Repose|

Legal malpractice claims are an unfortunate part of the practice of law.  Nebraska’s professional negligence statute is ‘occurrence based.’  See Neb. Rev. Stat. § 25-222.  That means the two-year limitations period is triggered by, and begins to run from, the date of the alleged negligent act or omission. As straightforward that may sound, as with most things there are exceptions.  So here are 5 things you should know: 1.The limitations [...]

10 Mar, 2021

Is that an Employee or an Independent Contractor? 

2021-03-10T08:13:54-06:00March 10th, 2021|Construction Contractor Advisor, Employee, Employee Classification, Independent Contractor|

The Nebraska Court of Appeals has again answered the age old question of whether a worker is an employee or an independent contractor.  In Wight v H&S Contracting the court found that an individual who held himself out as a single employee operation was an independent contractor. In this case, Navarro Robles fell off of a roof while working on a job site.  His widow claimed that he was an [...]

3 Mar, 2021

Lien Waivers—Worth a Thorough Review

2021-02-27T08:28:10-06:00March 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 [...]

23 Feb, 2021

Modern Day Cattle Rustling: A New Remedy Under the P&S Act

2021-04-06T14:21:52-05:00February 23rd, 2021|Government Regulations, Midwest Agricultural Law|

It's tough to reclaim cattle once they get to the feedlot While we are no longer living in the days of the Wild West, livestock dealers continue to face theft—particularly, in sales transactions gone wrong.  Unfortunately, common remedies generally are inadequate to recover the full amount lost.  In response, Congress has taken an active role in protecting the interests of the livestock industry. Statutory Trusts Under the Packers [...]

17 Feb, 2021

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

2021-02-13T12:54:55-06:00February 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 [...]

10 Feb, 2021

Buy America—The Biden Administration’s Plan

2021-02-06T11:16:48-06:00February 10th, 2021|Buy America Act, Construction Contractor Advisor, FAR Council, Federal Construction Projects|

The Biden Administration issued another executive order, this one focusing on the application and enforcement of the Buy America Act.  As the name indicates, the Buy America Act is intended to increase the amount of American goods used on and in government contracts.  President Biden’s executive order focuses on enforcement and the administration of the Act. The most significant change created by the executive order is to create a Made [...]

5 Feb, 2021

Partner Michael Storey Appointed Chairperson of Nebraska Disciplinary Review Board

2021-02-05T12:52:51-06:00February 5th, 2021|Latest News|

The Nebraska Supreme Court recently appointed partner Michael Storey as the Chairperson of the Nebraska Disciplinary Review Board.  Members of the Nebraska Disciplinary Review Board resolve appeals arising from disciplinary decisions made by the Nebraska Committee on Inquiry against Nebraska lawyers.  Mr. Storey will serve in that role for a two year term.

3 Feb, 2021

LDM Announces A New Office In Iowa

2021-02-03T12:42:40-06:00February 3rd, 2021|Latest News|

Lamson Dugan & Murray LLP announces the opening of a new office in Des Moines, Iowa. The opening of the Iowa office expands LDM’s geographic offering and further strengthens its existing Midwest offices.  Expanding into Iowa will enhance the depth and breadth of services available to clients among our litigation and corporate practices. LDM also has offices in Omaha, NE and Lincoln, NE. Leading the Des Moines office will be [...]

3 Feb, 2021

President Biden Orders OSHA to Issue New COVID-19 Guidance

2021-01-30T09:38:10-06:00February 3rd, 2021|Construction Contractor Advisor, COVID Construction, COVID-19, OSHA|

President Biden recently issued an Executive Order (copy here) requiring OSHA to issue “science-based guidance” to help keep workers safe from COVID-19 exposure.  The Executive Order does not create immediate changes, but calls for quick action by OSHA to update its guidance. The Executive Order  requires OSHA to: issue, within two weeks, revised guidance to employers on workplace safety during the COVID-19 pandemic; consider whether any emergency temporary standards on [...]

29 Jan, 2021

Time to Collect: Missouri River Landowners Get Win Against Corps of Engineers

2021-02-05T09:38:44-06:00January 29th, 2021|Midwest Agricultural Law|

  In a multi-phase litigation, the United States Court of Federal Claims in Washington, D.C. recently entered its trial order against the United States Army Corps of Engineers.  The December 14, 2020 order found the plaintiff landowners were collectively entitled to damages for certain losses. Back in 2018, the Court issued its order in the Phase I trial of a “takings” action under the Fifth Amendment: The government’s physical invasion—via [...]

27 Jan, 2021

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

2021-01-26T11:22:56-06:00January 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?

2021-01-21T08:58:20-06:00January 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

2021-01-13T14:22:41-06:00January 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 [...]

8 Jan, 2021

Judicial Response to COVID-19 – UPDATES x15

2021-01-08T11:27:55-06:00January 8th, 2021|COVID Court|

Updates in red Due to the global pandemic of COVID-19, a public health emergency has been declared in the United States.  Experts say that one of the most effective ways to protect against this disease is to limit the risk of exposure.  This has prompted the “Stay at Home” movement for many Americans, but many judicial matters still need prompt attention during this time.  Varying regulations have been put into [...]

23 Dec, 2020

Happy Holidays

2020-12-19T10:42:59-06:00December 23rd, 2020|Construction Contractor Advisor|

Another year is drawing to a close and we want to thank all of our construction clients with whom we have had the pleasure of working this past year.  We really do appreciate the opportunity to help you with your business operations.  We look forward to working with you in 2021. Happy Holidays

16 Dec, 2020

COVID-19 Vaccines are Here:  Can you require employees to be vaccinated?

2020-12-15T12:58:18-06:00December 16th, 2020|Construction Contractor Advisor, COVID Vaccine, COVID-19|

Today's post is by Eric Tiritilli, one of our Employment Law specialists. Currently, there is no formal guidance from federal agencies regarding whether an employer may require an employee to be vaccinated for COVID-19.  But, the EEOC has previously allowed mandatory vaccinations in the context of flu. Given that the EEOC considers the COVID-19 pandemic a “direct threat” to health in the workplace, it is likely that it would similarly [...]

11 Dec, 2020

Dempsey & Vipond Obtain Dismissal of Medical Malpractice Case in Iowa

2020-12-11T14:30:05-06:00December 11th, 2020|Latest News|

On an issue of first impression, Attorneys Sarah Dempsey and Patrick Vipond recently obtained a dismissal of a physician in a medical malpractice action in Iowa state court.  New rules in Iowa require a plaintiff to file a certificate of merit signed by an expert witness who is willing to testify that the defendant physician breached the standard of care.  The Iowa rules require that this certificate be signed by [...]

11 Dec, 2020

Nebraska “Farm Products” Definition: Now Includes Hemp and Goats

2020-12-11T14:30:58-06:00December 11th, 2020|Midwest Agricultural Law|

Wait. Did you say Hemp? Nebraska has amended the definition of “farm products” for statutes that govern security interests on farm products.  For the first time, the list of farm products now includes goats and hemp.  Really, goats are just now being added?  The Secretary of State has published a revised Nebraska Effective Financing Statement (Form EFS-1) that includes goats and hemp, which is in effect now.  Effective [...]

25 Nov, 2020

Enigma Wrapped in a Riddle: Federal Arbitration Act Interplay with Crop Insurance Disputes

2020-11-25T16:28:32-06:00November 25th, 2020|Arbitration, Crop Insurance, Midwest Agricultural Law|

Around this time last year, the 8th Circuit Court of Appeals found that an arbitrator did not exceed his authority when a dispute over the interpretation of a crop insurance policy provision arose after the arbitration proceedings.  Balvin v. Rain and Haill, LLC. Why is this important? It is important because in 2015, the Federal Crop Insurance Corporation ("FCIC") issued Final Agency Determination ("FAD") 230* which stated the following: A [...]

18 Nov, 2020

Workplace Safety–the Unpreventable Employee Misconduct Defense

2020-11-14T10:08:22-06:00November 18th, 2020|Construction Contractor Advisor, OSHA|

Just because an employee gets hurt on the job does not mean you are facing an OSHA penalty.  Employers have a defense to an OSHA citation when the violation of a safety rule was due to unpreventable employee misconduct. However, proving this defense requires substantial planning, well before an incident or investigation. Unpreventable Employee Misconduct Defense OSHA requires that an employer do everything reasonably within its power to ensure that [...]

12 Nov, 2020

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

2020-11-12T10:30:43-06:00November 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 [...]

11 Nov, 2020

Judicial Response to COVID-19 – UPDATES x14

2020-11-11T11:48:41-06:00November 11th, 2020|COVID Court, COVID-19|

Updates in red Due to the global pandemic of COVID-19, a public health emergency has been declared in the United States.  Experts say that one of the most effective ways to protect against this disease is to limit the risk of exposure.  This has prompted the “Stay at Home” movement for many Americans, but many judicial matters still need prompt attention during this time.  Varying regulations have been put into [...]

4 Nov, 2020

Arbitration versus Litigation

2020-10-31T11:08:55-05:00November 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 [...]

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