Latest News

23 Apr, 2019

The Risk of Conflicting Contract Provisions

2019-04-20T08:11:50-05:00April 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

2019-04-15T08:04:13-05:00April 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

2019-04-11T14:28:06-05:00April 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

2019-04-25T14:21:20-05:00April 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

2019-04-11T14:28:39-05:00April 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

2019-04-25T14:22:20-05:00April 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?

2019-03-30T10:42:15-05:00April 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.

2019-04-08T15:06:59-05:00April 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

2019-03-30T10:37:21-05:00April 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

2019-03-28T14:06:04-05:00April 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

2019-04-01T13:28:57-05:00April 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

2019-03-28T10:34:35-05:00March 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

2019-03-27T13:57:48-05:00March 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

2019-03-26T08:42:16-05:00March 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

2019-03-25T14:15:29-05:00March 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

2019-03-19T13:32:11-05:00March 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

2019-03-25T14:11:23-05:00March 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

2019-03-19T10:36:45-05:00March 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?

2019-03-21T14:01:04-05:00March 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

2019-03-15T10:33:02-05:00March 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

2019-03-14T07:38:09-05:00March 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

2019-03-18T13:42:42-05:00March 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

2019-07-22T16:45:51-05:00March 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

2019-03-08T10:45:37-05:00March 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?

2019-03-13T08:52:34-05:00March 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

2019-02-20T15:31:27-05:00February 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

2019-02-07T10:51:47-05:00February 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

2019-01-31T15:24:14-05:00January 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

2019-01-28T12:11:59-05:00January 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

2019-01-30T10:02:46-05:00January 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

2019-01-31T15:25:36-05:00January 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

2019-01-02T10:44:21-05:00December 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

2018-12-31T11:23:54-05:00December 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!

2018-12-28T12:28:52-05:00December 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 [...]

16 Nov, 2018

Liz O’Connor New Regent To The University of Nebraska

2018-11-16T14:19:02-05:00November 16th, 2018|Latest News|

LDM Attorney Liz O’Connor has been elected as the new Regent to the University of Nebraska for District 4.  She swept her opponent, obtaining 72% of the votes from District 4.  Liz is the fifth ever woman to serve on the University Board of Regents since its creation in 1869 This Board provides governance and oversees the University’s $2 Billion budget for its four campuses—UNL, UNK, UNO, and UNMC. Eight [...]

8 Nov, 2018

Win For Attorneys Minahan & Kampfe

2018-11-08T15:28:54-05:00November 8th, 2018|Latest News|

Attorneys Sean Minahan and Karson Kampfe recently successfully defended their client on a negligent construction claim in the Sarpy County, Nebraska District Court.  A property owner had claimed the contractor had negligently completed a large landscape project and refused to pay the contractor the final two invoices.  After 4 days of evidence, the jury took 2 ½ hours to find against the home owner and award the contractor the full [...]

6 Nov, 2018

LDM Partner Bill Settles 44th Jury Trial Win

2018-11-06T14:43:41-05:00November 6th, 2018|Latest News|

LDM Partner Bill Settles won his 44th jury trial when a Douglas County jury returned a unanimous verdict in favor of his clients on November 5, 2018. The plaintiff alleged that Mr. Settles’ clients failed to diagnose her breast cancer for over a year, causing the cancer to grow to an advanced stage when it was eventually diagnosed. Mr. Settles defended this difficult and emotional case by presenting top experts [...]

5 Nov, 2018

Unique Tax Breaks for Individuals with Disabilities

2019-01-01T11:09:24-05:00November 5th, 2018|Appealing Litigation|

We all know the saying—“When life gives you lemons, make lemonade.” One of the ways that individuals with disabilities can “make lemonade” out of the endless financial burden of living with a disability is by taking advantage of unique tax deductions available to them. Under the Tax Cuts and Jobs Act, the medical expense deduction floor of 26 U.S.C. § 213 was temporarily reduced from 10 percent to 7.5 percent. [...]

1 Nov, 2018

Trent-Vilim Co-Chair NSBA Appellate Law

2018-11-01T15:18:54-05:00November 1st, 2018|Latest News|

Cathy Trent-Vilim, a partner at Lamson Dugan & Murray LLP, has assumed the position of Co-Chair for the Nebraska State Bar Associations Appellate Law section.  The purposes of the Appellate Practice Section are (1) to promote the role and enhance the skills of Nebraska appellate lawyers to best serve clients, and (2) to improve the practice of appellate law in Nebraska. Congratulations Ms. Trent-Vilim!

30 Oct, 2018

Novotny Receives A Unanimous Verdict

2018-10-30T14:31:41-05:00October 30th, 2018|Latest News|

On October 26th, a twelve person jury returned a unanimous verdict in under three hours in favor of the clients of Partner and trial counsel Mark Novotny in Saline County District Court.   The case alleged that the death of a 17 year old girl was caused by medical malpractice.   The tragic case involved a rare form of necrotizing pneumonia following influenza.   Mr. Novotny provided the jury overwhelming evidence that the [...]

10 Oct, 2018

Walker/Trent-Vilim Success Before The Nebraska Court Of Appeals

2018-10-10T13:24:26-05:00October 10th, 2018|Latest News|

Congratulations to John Walker and Cathy Trent-Vilim for their recent success before the Nebraska Court of Appeals. At the trial court level, Mr. Walker successfully represented a guardian ad litem in a hotly-contested guardianship proceeding, including obtaining an award of attorney fees on grounds that the proceedings to unseat the guardian were frivolous. Ms. Trent-Vilim assisted Mr. Walker of the appeal, resulting in the affirmance of the trial court decision.

4 Oct, 2018

Can my Company Really Be Sued in Nebraska? A Short Discussion on Personal Jurisdiction

2018-10-10T13:21:10-05:00October 4th, 2018|Appealing Litigation|

Imagine Plaintiff John Doe has sued your company in, of all places, Nebraska. After consulting Google and confirming Nebraska does, in fact, have more cattle than people (6.6 million cattle to 1.8 million residents), you realize your company and have done little business in the State of Nebraska and has had limited contact with the state or its residents. So are you required to defend yourself in a Nebraska court? [...]

21 Sep, 2018

Lamson & Destache Trial Win

2018-09-21T08:06:32-05:00September 21st, 2018|Latest News|

Bill Lamson and Denise Destache represented a Certified Registered Nurse Anesthetist (CRNA) at trial beginning on August 20th . After a 5-day trial, the jury found for the CRNA in less than 1 hour! The case involved a patient who had been hospitalized for complications of alcohol abuse. The patient’s family sued the CRNA, alleging that a medication given prior to an emergency intubation caused the patient to suffer a [...]

19 Sep, 2018

Another Win For Partner Mark Novotny

2018-09-19T13:40:41-05:00September 19th, 2018|Latest News|

And they didn’t even wait for lunch!  Partner Mark Novotny just won a medical malpractice jury defense verdict in the District Court of Buffalo County (Kearney), Nebraska. After four days of trial, the jury started deliberations on Friday at 11:05 a.m. The jury returned a unanimous verdict in favor of the defense at 11:30 a.m. Twenty-five minutes!

14 Sep, 2018

Lamson Dugan & Murray Partners Among The Best In America

2018-09-14T11:25:46-05:00September 14th, 2018|Latest News|

Best Lawyers in America has named twelve Lamson Dugan & Murray LLP attorneys in The Best Lawyers in America 2019 Edition. The recognition of “Best Lawyers in America” is awarded to individual attorneys with the highest overall peer-feedback for a specific practice area and geographic region. Only one attorney is recognized as the “Lawyer of the Year” for each specialty and location. Attorney Daniel P. Chesire of LDM, was awarded [...]

10 Sep, 2018

Novotny & Dempsey – Case Dismissed

2018-09-10T17:45:32-05:00September 10th, 2018|Latest News|

Mark Novotny and Sarah Dempsey recently obtained a dismissal of a medical malpractice case.  The plaintiffs filed the case against a physician and his medical practice.  Mark and Sarah convinced the court to dismiss the case, arguing that the plaintiffs had failed to timely serve their clients with the lawsuit.  The court agreed and held that the case was dismissed by operation of law.

27 Aug, 2018

Nebraska Supreme Court Affirms LDM Client’s Trial Verdict

2018-08-27T08:50:44-05:00August 27th, 2018|Latest News, News|

LDM recently secured affirmance of a judgment in its client’s favor.  The case related to the value of a departing partner’s ownership interest in a national law firm.  LDM’s trial team – consisting of  Brian J. Brislen and Daniel P. Chesire – alongside co-counsel James J. Banks of Banks & Watson in Sacramento California, persuaded the court to adopt the client’s position on all issues raised by the departing partner.  [...]