Latest News

21 May, 2019

Responsible Contractor Reform–a Wolf in Sheep’s Clothing

2019-05-14T17:18:58-06:00May 21st, 2019|Construction Contractor Advisor, Merit Shop|

Employers in the construction industry have long known the value of apprentice programs, such as those offered by Associated Builders and Contractors.  But, did you know that having or participating in a qualified apprentice program may become a requirement to bid on government projects?  If organized labor gets it way through the so-called Responsible Contractor Reforms, it could happen. Supplemental Conditions, a construction blog worth reading, recently posted an article on [...]

16 May, 2019

Never Underestimate the Importance of Contract Language

2019-05-11T09:00:03-06:00May 16th, 2019|Construction Contractor Advisor, Construction Contracts|

A recent article in ENR described the setbacks associated with a public rail project.  There are problems with the schedule, concrete quality, including precast girders , panels and rail ties, and allegations of fraud.  In a nutshell--a mess.  But, I wonder if there are contract provisions that address these problems.  Below are some problems on the project and my thoughts on contract provisions. Schedule. The article mentions that the general [...]

15 May, 2019

Refresher on Nebraska Ag Liens Pt. 3: Keeping The Thresher’s Lien Clear

2019-05-29T10:59:12-06:00May 15th, 2019|Farm Management, Lien Rights, Midwest Agricultural Law|

  -     A lien for the owner or operator of any threshing machine or combine against the grain or seed harvested or processed.  Neb. Rev. Stat. Sec. 52-501. A combine with a plugged feeder house is extremely frustrating and basically useless until the plug is removed. Similarly, liens that are plugged with filing or notice problems are frustrating and potentially unenforceable.  Even a straightforward thresher's lien can contain [...]

14 May, 2019

Getting Paid is Important and the Prompt Pay Act Can Help

2019-05-11T08:12:15-06:00May 14th, 2019|Construction Contractor Advisor, Prompt Pay Act|

As this year’s construction projects are in full swing, it’s a good time to review your rights to payment.  Since 2014, the Prompt Pay Act has been a tremendous resource for contractors to recover retainage and interest from upstream contractors and owners for failing to timely pay on a project.  Here are a few highlights from the Prompt Pay Act. Limit on Retainage. Retainage may not exceed 10%. And, when [...]

9 May, 2019

So, You’ve Been Sued, Now What?  Tender–Quickly.

2019-05-06T10:21:04-06:00May 9th, 2019|Construction Contractor Advisor, Insurance coverage|

If you or your construction company have ever been sued, you know it can be a stressful time.  You have deadlines, you have subcontractors clamoring to get paid or defended, and it’s a generally awful situation.  But, keep your mind on the prize--to make sure you have insurance coverage that will provide a defense to these claims.  The most important step to ensure you have coverage is to tender your [...]

7 May, 2019

Construction Material Costs are Rising–Are You Protected?

2019-05-06T10:19:26-06:00May 7th, 2019|Construction Contractor Advisor, Construction Contracts, Escalation Clause|

Construction material costs are rising, at least that’s what AGC, ABC, ACEC, ENR and the government are saying.  So, let’s assume that its true—construction material costs are rising.  What can you, as a general contractor or subcontractor do about it? Not surprisingly, it all comes down to your contract and whether you included a cost escalation clause. What is a Cost Escalation Clause? These clauses are pretty self-explanatory in [...]

2 May, 2019

The Importance of Confidentiality and Non-Solicitation Agreements

2019-04-29T08:27:24-06:00May 2nd, 2019|Confidentiality, Construction Contractor Advisor, Noncompete|

While this is not typically a topic of discussion on this construction blog, two recent construction related lawsuits filed in Nebraska highlight the importance of making sure your key employees do not walk away with your projects and employees. We all know the situation.  A long-term, faithful employee gets the itch to head out on his own or take another job for a few more dollars.  Maybe you wish the [...]

30 Apr, 2019

What do you mean you LOST it?

2019-04-26T09:16:54-06:00April 30th, 2019|Breach of Contract, Construction Contractor Advisor, Construction Litigation|

Back in 2014, I posted a blog about the problems contractors were having digging the tunnel for Route 99 in Seattle.  Bertha, the boring machine, hit a pipe and some rocks and got stuck, causing two years of delay. Well, that problematic situation, now a $624 million lawsuit, has wound its way through the courts and the Seattle Tunnel Partners (“STP”) is blaming the slow down on the pipe they [...]

29 Apr, 2019

Hassing & O’Brien Win Motion for Summary Judgment

2019-04-29T15:47:50-06:00April 29th, 2019|Latest News|

Daniel Hassing and Anne Marie O’Brien recently won a motion for summary judgment in the Southern District of Texas.  This success came in an action under the Federal Employer’s Liability Act, a federal statute granting a cause of action to railroaders working in furtherance of interstate commerce. The case involved a widow who alleged that her late husband developed colon cancer as a result of occupational exposures while working for [...]

25 Apr, 2019

Walker Elected To The Board Of The Regency HOA

2019-04-25T14:20:53-06:00April 25th, 2019|Latest News|

Congratulations to Partner John Walker, who was recently elected to the Board of the Regency HOA.  John has long represented both HOAs, and homeowners in disputes with their HOAs, allowing him to bring unique perspective to his newly elected position. Partner John M. Walker

25 Apr, 2019

The Benefit of Early Resolution Through Mediation

2019-04-22T08:21:32-06:00April 25th, 2019|Construction Contractor Advisor, Mediation|

Let’s face it, some projects just don’t go well and everyone knows there will be a fight over payment at some point.  If there were only some way to avoid costly litigation or arbitration.  Or is there?  You could include a mandatory mediation provision in your contract to require the parties try to resolve the matter before litigation or arbitration is initiated. What is Mediation? Mediation is not simply requiring [...]

24 Apr, 2019

Thank You Administrative Professionals

2019-04-24T10:15:11-06:00April 24th, 2019|Latest News|

Thank you to all of our Administrative Professionals for your hard work, tireless effort, and every day enthusiasm. Your work is key to our success! Vonnie Lorenson, Cassandra Kuhr, Jan Grisinger, Jeanna Lichtenberg, Amy Kluza, Natale Sipple, Kim Wike, Kathy Poskevich, Laura Cejka, Kelly Busboom, Christie Donnermeyer, Debra Tweed, Michele Rambousek, Judy Ray, Connie Harrold, Patty Morgan, Shelli Eden, Tracey Shughart, Doris Crayton, Kris Flott, Kate Fenton, Evelyn Owens, Peg [...]

23 Apr, 2019

The Risk of Conflicting Contract Provisions

2019-04-20T08:11:50-06:00April 23rd, 2019|Construction Contractor Advisor, Construction Contracts|

On large construction projects, with several layers of contractors, there is the risk of conflicting contract provisions.  For example, the owner’s architect may use an AIA contract, the general contractor may use its own contract with the subcontractors, and some subcontractors may use their own contract with subsubcontractors.  With so many contracts, there are almost certainly conflicting provisions, be it relating to indemnity, insurance and waivers of damages.  It is [...]

16 Apr, 2019

OSHA’s Defense of Unpreventable Misconduct

2019-04-15T08:04:13-06:00April 16th, 2019|Construction Contractor Advisor, OSHA, Penalty|

Employees do the darnedest things.  But, you’d hope they wouldn’t do them in front of an OSHA inspector.  Isn’t there some way you can defend your company against an OSHA citation and penalty when there is truly no defense to the employee’s misconduct?  Well, there is—the “unpreventable employee misconduct defense” may be of help, but only if you meet the four elements necessary for the defense.  As you will read, [...]

16 Apr, 2019

Liquidating Agreements—Preserving Subcontractor Claims against Owners

2019-04-11T14:28:06-06:00April 16th, 2019|Construction Contractor Advisor, Subcontractor|

What is a subcontractor to do when the owner has demanded additional work, but has refused to pay for it?  Typically, a subcontractor cannot sue the owner because the subcontractor doesn’t have a contract with the owner.  Perhaps the subcontractor and general contractor should enter into a liquidating agreement through which the general contractor can pursue the claim on the subcontractor’s behalf. Liquidating agreements bridge the privity gap between owners [...]

15 Apr, 2019

Defense Judgement For Attorney Mike Storey

2019-04-25T14:21:20-06:00April 15th, 2019|Latest News|

LDM attorney Mike Storey recently won a defense judgement in a jury trial for an underinsured motorist claim.   The plaintiff claimed injuries related to a motor vehicle accident and had already received a total of $105,000.00 in liability payments from the other driver’s insurance policy.  At trial, plaintiff sought a total recovery of $289,000.00 for her alleged injuries.  After a 3-day trial in the District Court of Douglas County, where [...]

11 Apr, 2019

General Contractors Can Be Liable for Subcontractors’ OSHA Violations

2019-04-11T14:28:39-06:00April 11th, 2019|Construction Contractor Advisor, OSHA|

OSHA has long held the opinion that general contractors may be held liable for subcontractor’s OSHA violations and the Eighth Circuit Court of Appeals, overseeing the Midwest, has agreed since 2009. To combat this risk, general contractors would be well served to incorporate targeted indemnity provisions into their subcontracts that require subcontractors to pay for all claims and costs associated with subcontractor caused OSHA violations. OSHA’s Multi-Employer Policy OSHA’s Multi-Employer [...]

10 Apr, 2019

Settles – Lawyers Of Distinction For 2019

2019-04-25T14:22:20-06:00April 10th, 2019|Latest News|

LDM is pleased to announce that partner Bill Settles has been certified as a member of Lawyers of Distinction for 2019. Lawyers of Distinction is recognized as the fastest growing community of distinguished lawyers in the United States. Lawyers of Distinction offers membership to less than 10% of attorneys in any given state. Membership is based upon peer recommendations and an objective analysis of an attorney’s qualifications, reputation, experience, and [...]

9 Apr, 2019

Are Defense Costs In Addition to Policy Limits?

2019-03-30T10:42:15-06:00April 9th, 2019|Construction Contractor Advisor, Insurance coverage|

I recently had a discussion with an insurer about whether defense costs were included within the policy limits of a client’s coverage or in addition to policy limits.  This was an important discussion because if costs of defense were included in the policy limits, my client was going to exceed those policy limits in a hurry.  How would this situation play out with your insurance? Fortunately, the majority of insurance [...]

8 Apr, 2019

REFRESHER ON NEBRASKA AG LIENS, PT 2: The Artisan Lien and possession as 9/10ths the law.

2019-04-08T15:06:59-06:00April 8th, 2019|Farm Management, Lien Rights, Midwest Agricultural Law|

Good work. Now make sure to hold onto the tractor until you get paid - A lien for the  person who makes, alters, repairs, or enhances the value of machinery, farm tools or implements, or shoes horses or mules. Why the lien is called an Artisan's Lien is beyond me.  I don't remember anybody who would be covered by this lien calling themselves an artisan.  Maybe I need [...]

4 Apr, 2019

Be Careful When Thinking about Terminating for Default

2019-03-30T10:37:21-06:00April 4th, 2019|Construction Contractor Advisor, Termination|

During a construction project, subcontractors may be performing poorly and a general contractor may want to terminate a subcontractor for default.  A recent case out of the Eight Circuit Court of Appeals (overseeing the Midwest) rejected a general contractor’s right to terminate for default because the general contractor, not the subcontractor, was the first one to breach the contract. The case, Randy Kinder Excavating, Inc. v. JA Manning Construction Company, [...]

2 Apr, 2019

Construction Contract Review—Sole Discretion

2019-03-28T14:06:04-06:00April 2nd, 2019|Construction Contractor Advisor, Construction Contracts|

General contractors and owners often time include language in construction contracts that provides them with sole discretion to make decisions.  These provisions can severely limit a subcontractor’s ability to negotiate changes or increased pay applications. What do these phrases look like? The “sole discretion” language can take a number of forms, including: Contractor reserves the right, in its sole discretion to . . . As solely determined by Contractor ____ [...]

1 Apr, 2019

Motion for Summary Judgment – Win for Novotny & Dempsey

2019-04-01T13:28:57-06:00April 1st, 2019|Latest News|

Mark Novotny and Sarah Dempsey recently won a motion for summary judgment, obtaining the dismissal of a medical malpractice case filed against an orthopedic surgeon.  The case arose out of a knee replacement surgery.  The plaintiff alleged that the nurses from the hospital and the defendant surgeon had negligently left a piece of sponge behind in the knee following surgery.  Mr. Novotny and Ms. Dempsey successfully argued that the claim [...]

28 Mar, 2019

Partner Bill Settles – Unanimous Defense Verdict

2019-03-28T10:34:35-06:00March 28th, 2019|Latest News|

LDM partner Bill Settles recently won a unanimous defense verdict in a medical malpractice case against an orthopedic surgeon in Sidney, Nebraska. The patient claimed she suffered a pressure ulcer on her heel because the surgeon misapplied a posterior splint following ankle surgery. After Mr. Settles’ presentation, the jury only took an hour to reject this claim. Interestingly, the trial was disrupted by the worst blizzard in Sidney in the [...]

28 Mar, 2019

Withdrawal Liability—A Big Problem for Unionized Employers

2019-03-27T13:57:48-06:00March 28th, 2019|Collective Bargaining Agreement, Construction Contractor Advisor, Withdrawal Liability|

Employers that are subject to a collective bargaining unit often are required to make contributions to a defined benefit pension plan sponsored by a union.  If the employer and the union part ways, the employer may be subject to withdrawal liability--even if the company has made all of its pension contributions.  And, this liability can cripple a company. This is a BIG Problem The underfunded status of multiemployer pension plans [...]

26 Mar, 2019

Location, location, location—even in construction liens

2019-03-26T08:42:16-06:00March 26th, 2019|Construction Contractor Advisor, Construction Lien|

We all know the importance of filing a construction lien within 120 days of your last work (90 days in Iowa).  But, equally, if not more important, is filing the construction lien on the correct property. Often times on a construction project, the exact address of the project may not be known.  And, if there are a few buildings going up on the same general site, it is difficult to [...]

25 Mar, 2019

Lamson, Grams & Storey – Significant Settlement

2019-03-25T14:15:29-06:00March 25th, 2019|Latest News|

Lamson, Dugan & Murray, LLP is proud to announce a significant settlement of a long-pending industrial product defect case.  Representing their Fortune 500 client, LDM attorneys Bill Lamson, Jason Grams, and Mike Storey brought suit against a supplier and, after over three years of litigation, negotiated payments to LDM’s client of $50 million and a resumption of the parties’ business relationship.  The case involved over three million units of products [...]

21 Mar, 2019

Beware of Waiving Your Lien Rights

2019-03-19T13:32:11-06:00March 21st, 2019|Construction Contractor Advisor, Construction Lien|

You know the situation—the lender or general contractor is waiving a check in front of you, but they won’t give it to you until you sign a waiver.  Before you sign it, make sure you know exactly which rights you are waiving. Nebraska statutes specially allow a contractor to waive lien rights.  Section 52-144 allows a contractor to waive lien rights even before the work has been preformed or materials [...]

20 Mar, 2019

REFRESHER ON NEBRASKA AGRICULTURAL LIENS PT. 1: Types of Security

2019-03-25T14:11:23-06:00March 20th, 2019|Lien Rights, Midwest Agricultural Law|

  Lately we have been fielding a lot of calls from farmers, ranchers and various other agribusiness to assist in collecting on unpaid debts. Our first question when taking that call is “when was the work performed or the materials supplied?” Our second question, “is there an ag lien on file yet?” It seems that everybody knows ag liens exist. It also seems that only the most sophisticated know exactly [...]

19 Mar, 2019

Dave Schmitt Secures Summary Judgment Dismissal in Railroad Crossing Accident Case

2019-03-19T10:36:45-06:00March 19th, 2019|Latest News|

Partner Dave Schmitt successfully secured summary judgment dismissal in a crossing accident case in Iowa. The case involved an individual who ignored lowered crossing gates at an Iowa railroad crossing and ran across tracks when this individual was struck by the front corner of an oncoming train. Fortunately, the individual survived and quickly recovered from her physical injuries, although plaintiffs also claimed the individual suffered psychological, cognitive and behavioral difficulties [...]

19 Mar, 2019

Construction Liens—What Do You Have to Include in the Lien?

2019-03-21T14:01:04-06:00March 19th, 2019|Construction Contractor Advisor, Construction Lien|

The information that you must include in a Nebraska construction lien is pretty straightforward.  A construction lien must include the following: The real estate subject to the lien; The name of the person against whose interest in the real estate a lien is claimed; The name and address of the claimant; The name and address of the person with whom the claimant contracted; A general description of the services performed [...]

15 Mar, 2019

Attorneys Novotny & Dempsey – Case Dismissed

2019-03-15T10:33:02-06:00March 15th, 2019|Latest News|

Mark Novotny and Sarah Dempsey recently obtained the dismissal of a medical malpractice case filed against an orthopedic surgeon and his clinic arising out of a wrist surgery.  The plaintiff had attempted to assert the claim as a claim for battery in an attempt to use the longer statute of limitations for the alleged intentional tort instead of the expired statute of limitations for alleged professional negligence.  Mr. Novotny and [...]

14 Mar, 2019

Getting Paid for Your Work

2019-03-14T07:38:09-06:00March 14th, 2019|Construction Contractor Advisor, Construction Contracts, Pay-if-Paid|

I’ve reviewed three construction contracts this week and all three of them contained a pay-if-paid clause.  Are you signing contracts with pay-if-paid clauses? Here are some suggestions to minimize your risk with pay-if-paid clauses. What is a pay-if-paid clause? Pay-if paid clauses eliminate the general contractor’s obligation to pay subcontractors if the general contractor does not get paid.   Courts reviewing these clauses have found that a subcontractor that signs a [...]

12 Mar, 2019

Construction Liens—When and Where to File

2019-03-18T13:42:42-06:00March 12th, 2019|Construction Contractor Advisor, Construction Lien|

This is the first in a series of blogs on preserving your rights to get paid on a construction project.  The most effective tool you have to get paid is by filing a construction lien.  But, there’s a lot to consider before you file that lien.  This blog will cover when you must file your lien and where the lien should be filed. The Nebraska Construction Lien Act is contained [...]

10 Mar, 2019

Craig F. Martin Rejoins LDM

2019-07-22T16:45:51-06:00March 10th, 2019|Latest News|

Lamson Dugan & Murray LLP would like to announce that attorney Craig F. Martin has rejoined the firm as a partner in the Construction Law Practice Area.  Mr. Martin practiced law at Lamson Dugan & Murray for more than seven years before becoming Vice President and General Counsel at a long time client. Mr. Martin focuses his practice on construction law, and has extensive experience dealing with complex construction claims [...]

7 Mar, 2019

Back in the Saddle Again

2019-03-08T10:45:37-06:00March 7th, 2019|Construction Contractor Advisor|

After a three year experiment as Vice President and General Counsel at a long time client, I’m back to practicing law at Lamson Dugan & Murray. It was an amazing three years and I learned first hand how hard it is to deal with the day to day operations of a company, let alone the legal details. For the past three years, I was a jack of all trades, and, [...]

1 Mar, 2019

Does Nebraska’s Revised Summary Judgment Statute Require Submission Of A Statement Of Undisputed Material Facts?

2019-03-13T08:52:34-06:00March 1st, 2019|Nebraska Litigation & Trial Advisor|

Appealing Litigation first addressed the 2017 “facelift” to the summary judgment statute in an October 2017 blog post. In her post, Partner Cathy Trent-Vilim noted that the revisions to Nebraska’s summary judgment statute, Neb. Rev. Stat. § 25-1332, now require the moving party, as well as the responding party, to provide citations to the evidence in support of their assertions of fact. After the statute became effective, it was unclear [...]

20 Feb, 2019

Storey – E & O Claims Presentation

2019-02-20T15:31:27-06:00February 20th, 2019|Latest News|

On February 14, 2019, Attorney Mike Storey presented for an hour at a member luncheon for the Independent Insurance Agents of Omaha.  The topic, “Recent Court Cases Affecting E&O Claims,” focused on the recent decision in Hansmeier v. Hansmeier, 25 Neb. App. 742 (2018). The presentation explored and compared various Nebraska cases to create helpful rules of thumb to avoid future E & O claims.  Mr. Storey, as well as various [...]

7 Feb, 2019

Lamson Dugan & Murray Announces Catherine E French, Maria T Lighthall, and Adam R Feeney as Partners

2019-02-07T10:51:47-06:00February 7th, 2019|Latest News|

Lamson Dugan & Murray is pleased to announce that attorneys Catherine E. (Katie) French, Maria T. Lighthall, and Adam R. Feeney have become partners of the Firm as of January 1, 2019. Katie French Bio: https://www.ldmlaw.com/profiles/catherine-e-french/ Maria Lighthall Bio: https://www.ldmlaw.com/profiles/maria-t-lighthall/ Adam Feeney Bio: https://www.ldmlaw.com/profiles/adam-r-feeney/

31 Jan, 2019

Coauthors Trent-Vilim and Hofer: Beyond The Pleadings

2019-01-31T15:24:14-06:00January 31st, 2019|Latest News|

LDM attorneys Cathy Trent-Vilim and Janae Hofer published a featured article in the January 2019, The Voice, Vol 18 Issue 4.  The article offers extrinsic evidence on Rule 12 motions.  See the article below. Beyond the Pleadings: Offering Extrinsic Evidence on Rule 12 Motions: voice_1_30_19          

28 Jan, 2019

French – Legal Planning for Parents Presentation

2019-01-28T12:11:59-06:00January 28th, 2019|Latest News|

Katie French is providing another FREE opportunity to see her presentation on Legal Planning for Parents. It will take place on Wednesday February 20th. The discussion will focus primarily on planning for parents with minor children, but also provide an overview of the process of probating a will, as well as what happens if you die without a will. Here is the link to RSVP, space is limited based on [...]

23 Jan, 2019

Looking Beyond the Pleadings for Motions to Dismiss: Part 3 of 3

2019-01-30T10:02:46-06:00January 23rd, 2019|Nebraska Litigation & Trial Advisor, Pleading|

This is the third installment of a three-part blog series on evidence that courts may consider when deciding motions to dismiss without converting the motion to one for summary judgment. Previous blog posts in this series discussed the admissibility of certain documents, matters of public records, and subjects of judicial notice. Concessions and Admissions The next type of evidence that courts may consider outside of the pleadings is any concession [...]

9 Jan, 2019

Looking Beyond the Pleadings for Motions to Dismiss: Part 2 of 3

2019-01-31T15:25:36-06:00January 9th, 2019|Nebraska Litigation & Trial Advisor|

As discussed in the previous blog post regarding evidence admissible for motions to dismiss, courts can only consider limited types of evidence when deciding motions to dismiss. Public Records and Judicially Noticed Matters Public records, and subjects of judicial notice, are other forms of evidence defendants can properly rely upon on a motion to dismiss. Typically, all that is required is attaching the record since authenticity is not generally an [...]

31 Dec, 2018

Lamson Dugan & Murray Raises Money For Omaha’s Children’s Hospital

2019-01-02T10:44:21-06:00December 31st, 2018|Latest News|

Lamson Dugan & Murray participated in No-Shave November to help raise money to support Omaha's Children's Hospital & Medical Center - Hematology/Oncology program.  The goal of No-Shave November is to grow awareness by embracing our hair, which many cancer patients lose, and letting it grow wild & free.  The firm had 19 attorneys and support staff participate in the month long charity event and together raised $2,076.00 for Children's Hospital!

21 Dec, 2018

Looking Beyond the Pleadings for Motions to Dismiss – Part 1 of 3

2018-12-31T11:23:54-06:00December 21st, 2018|Nebraska Litigation & Trial Advisor, Pleading|

Defense attorneys sometimes file motions to dismiss in lieu of answering complaints. To support these motions, defense attorneys may offer evidence, which is often objected to by opposing counsel on grounds that the admission of evidence would convert the motion to dismiss to a motion for summary judgment. If the trial court agrees, evidence that should be admissible is excluded. After months of discovery, the issue raised in the motion [...]

6 Dec, 2018

Murray Inducted Into Hall of Fame!

2018-12-28T12:28:52-06:00December 6th, 2018|Latest News|

On Saturday, November 3, LDM Partner Bob Murray was inducted into the Nebraska State Soccer Association’s Hall of Fame! In the late 80’s, Creighton was in danger of losing its NCAA accreditation because it did not have at least 7 Division 1 programs for both men and women. Bob convened a group of individuals to approach Father Morrison (then President of Creighton University) to offer a solution to the NCAA [...]