Dan Hassing recently secured a summary judgment for his client on a premises liability claim. In the case, Mr. Hassing represented a health club in greater Nebraska. The claim involved significant personal injuries including a fractured vertebrae. The plaintiff alleged that he had suffered the injuries as the result of being pushed into the wall during a game of basketball. The plaintiff claimed that the club knew that [...]
LDM attorneys and staff volunteered at the United Way’s Shine Bright event, where they rolled up their sleeves to put together care kits for local students. The 4000 Shine Bright boxes contained essential hygiene items which were age, gender, and ethnicity specific, and will be distributed to kids in the OPS and CBPS surrounding areas. The hope is that every box distributed to a student in their [...]
Dan Hassing and Mark Novotny recently secured a summary judgment for their clients on a legal malpractice claim. Hassing and Novotny represented a team of lawyers who had been sued on allegations that they had negligently handled a challenge to a tax increment financing project in rural Nebraska. Hassing and Novotny argued that the claim against their clients was barred by the statute of limitations. To support [...]
On March 15, 2022, LDM Attorneys Pat Vipond and Mike Storey obtained a unanimous defense verdict in a medical malpractice case after a four-day jury trial in the District Court of Douglas County, Nebraska. The case, which originated in 2014 and was the subject of two appeals to the Nebraska Court of Appeals and Nebraska Supreme Court, involved allegations that the defendant failed to diagnose Epstein Barr [...]
Partner, Cathy Trent-Vilim has been selected as the State Chair for Nebraska for the ABA Council of Appellate Lawyers. The State Chairs Committee was established to help carry out the Council’s goals of promoting excellence in appellate practice and building a stronger appellate bar to benefit courts, lawyers, clients, and the public. The Committee includes experienced appellate attorneys selected to serve as State Chairs in every state, the District [...]
Lamson Dugan & Murray attorney Lily Ealey recently spent her Friday nights and Saturday mornings coaching two thriving law students, Essence Hill and Dajuan Davis, to compete in the Thurgood Marshall Moot Court competition at the Midwest Regional BLSA convention. Her hard work and investment in these young students paid off. This dynamic duo advanced to the semi-finals and placed 4th overall. Please join us in congratulating Lily [...]
Lamson Dugan & Murray attorney Lily Ealey was recently appointment to the Santa Monica House Board of Directors. The Santa Monica House was the first halfway house in Omaha, Nebraska, designed exclusively for women. Since 1972, it has administered a caring, comprehensive program for women who desire to live without the burden of addiction.
LDM Attorneys Nichole Bogen and Lily Ealey published an article in the November/December 2021 Nebraska State Bar Association publication, The Nebraska Lawyer. The article featured is titled, "Help! My Client Received a Charge of Discrimination from the Nebraska Equal Employment Opportunity Commission." Nichole Bogen is a partner in the Lamson Dugan & Murray Lincoln office. She has represented clients in federal and state courts involving railroad and [...]
Lamson Dugan & Murray attorneys helped those in need by participating in the Salvation Army’s Red Kettle Collection bell ringing campaign on December 23, 2021. The Salvation Army of Omaha serves the greater Omaha metropolitan area from feeding programs and homelessness prevention to mental health and older adult services. The Red Kettle Collection bell ringing campaign is a great way to volunteer and help those in need in the [...]
Lamson Dugan & Murray attorneys and staff spread some holiday cheer by volunteering to serve dinner at the Siena Francis House in Omaha, Nebraska, on December 20, 2021. The Siena Francis House was founded in 1975. It provides shelter, food, clothing and other emergency services to individuals experiencing homelessness. The Siena Francis House also provides on-site, Permanent Supportive Services for formerly homeless, disabled persons, as well as [...]
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 [...]
Congratulations to LDM Partner Catherine French McGill for being appointed to the Salvation Army of Omaha’s Advisory Board. The Salvation Army of Omaha serves the greater Omaha metropolitan area through its multiple worship centers and service locations, from feeding programs and homelessness prevention to mental health and older adult services. See the announcement.
Congratulations to attorney Ellen Geisler for being named Nebraska State Bar Association Young Lawyer Section Representative for District 4.
Lamson Dugan & Murray Partners, Anne Marie O’Brien and David Schmitt will be giving a webinar presentation on defending FELA toxic tort cases on October 20, 2021. The Webinar is sponsored by ASLRRA, the American Short Line and Regional Railroad Association.
On August 13, 2021, Partner Mark Novotny received the Lifetime Fellow of the Nebraska State Bar Foundation honor. This is given to Nebraska lawyers for their outstanding legal ability, leadership and dedication to the administration of justice through philanthropic gifts to the Bar Foundation. Congratulations Mark!
Congratulations to attorney Andrew Huber for being selected to the 2021 Great Plains Rising Stars list. This honor is reserved for those lawyers who exhibit excellence in the practice of law. Only 2.5% of attorneys in Great Plains receive this distinction. Congratulations Andrew!
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 [...]
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. [...]
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 [...]
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 [...]
The Federation of Defense & Corporate Counsel (FDCC) group, which is comprised of 1200 defense lawyers world-wide highlighted LDM Partner Daniel Chesire in their July 2021 newsletter. Download the Article
The Small Business Stabilization Grant program has been extended until this Friday July 17, 2020 at 4:00 p.m. and is accepting new applicants (previous applicants are expected to be notified of the award status this week). Here is a press release put out by the Nebraska Department of Economic Development: DED Reopens Small Businesses Stabilization Grant Program with Expanded Eligibility They anticipate they can award up to 14,000 more grants [...]
Ouch. That’s what a court called a contract to remediate petroleum contamination at a number of gas stations in New York. Sometimes, it’s hard to believe the contracts that get signed. Environmental Risk hired Science Applications to remediate petroleum contamination at 47 gas stations. Environmental Risk had previously entered into a Professional Services Master Agreement with Science Applications, but also required Science Applications to sign three separate, but basically identical, subcontracts called [...]
Sean Minahan, one of my partners, and I were discussing a construction dispute the other day and we commented again and again about the significant organization required to get a construction project to completion. From the contracts, to the schedule, to the funding—everything has to be in lock step or there will be problems that could bring the project to a halt, or worse yet litigation. The same is true [...]
A contractor learned a $12M lesson when it tried to change course on a Corps of Engineer river dredging project. The case also illustrates the importance of documenting problems on a project and providing notice of those problems to the owner. In Weston/Bean Joint Venture v U.S., Weston/Bean was awarded a Corps of Engineers project to provide maintenance dredging on the Miami River to a depth of 15 feet. [...]
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 [...]
I hope you and your family are enjoying some well earned time off this Thanksgiving. Today’s post provides me an opportunity to thank everyone who gave me ideas for the blog and I thank you for reading it. I’d also like to thank all of my construction clients from whom this blog is written. I appreciate the opportunity to assist you in your construction projects. Finally, we will be smoking, [...]
I had the pleasure of speaking at the National Association of the Remodeling Industry (NARI) Education Day earlier this month. During my presentation, “The Myth of the One Year Warranty”, we discussed the impact of arbitration clauses in construction contracts and who should act as arbitrator. While the American Arbitration Association is certainly a popular forum, there are others. For example, the New York Times recently wrote about a hardwood [...]
A recent case out of New Mexico highlights the importance for subcontractors to review their contract with the general and the contract between the general and the owner. In Centex/Worthgroup, LLC v. Worthgroup Architects, L.P, the architect claimed that the limitation of liability clause in the prime contract trumped the provisions of the subcontract. The court disagreed and ruled that the specific provision in the subcontract controlled. In the case, [...]
We all know the importance of filing a construction lien within 120 days of your last work. Nebraska Construction Lien Act, § 52-137. 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, [...]
Fitness for Duty examinations can be an important part of an employer’s hiring and retention protocol. The Nebraska Supreme Court recently clarified when an employer may require applicants and employees to undergo fitness for duty examinations. In Arens v. Nebco, Inc., the court ruled that an employer must have a legitimate, nondiscriminatory reason for its demand that a current employee submit to a fitness for duty examination. In this case, [...]
I often advise clients on the use of E-Verify and the importance of getting policies and procedures in place to ensure compliance. This is particularly true for clients that do federal and state work. Now it’s my turn to follow my own advice. I was recently appointed to represent the Nebraska Board of Engineers and Architects. As such, I am a contractor for the State of Nebraska. That means I [...]
A recent case out of Missouri emphasizes the importance of providing notice to a surety when a bonded subcontractor is in default. When the question of whether a surety will be obligated under the bond is in the balance, notice is crucial. In CMS v. Safeco Insurance Company, Safeco provided a performance bond to a subcontractor for the benefit of CMS. The bond specifically provided: PRINCIPAL DEFAULT. Whenever the Principal [Subcontractor] shall be, [...]
You may know this situation all too well. You’ve submitted your certified claim to the contracting officer and there it sits. You ask for a decision and they say soon, but it’s not soon. And pretty soon, several months have gone by. Since the Court of Federal Claims’ decision in Rudolph and Sletten, Inc. v. U.S., the government may have to decide in 60 days or your claim will be [...]
I just attended an Associated Builders and Contractors meeting during which Lueder Construction discussed a fatality on one of its worksite. OSHA fully investigated the incident and did not issue a single citation. This is a testament to the safety plan and training Lueder had in place well before this incident. One defense to an OSHA citation is unpreventable employee misconduct. However, proving this defense requires substantial planning, well before an [...]
The California Court of Appeals has allowed the second lowest bidders on public construction projects to sue the lowest bidder where it appears that the lowest bidder was only the lowest because it paid its employees less than the established prevailing wage. This is a novel theory for recovery, but may provide for an opportunity to challenge improperly low bids. Background Between 2009 and 2012, American Asphalt outbid two asphalt companies [...]
Perhaps in anticipation of Labor Day, the National Labor Relations Board issued its ruling in Browning-Ferris Indus. of Cal. d/b/a BFI Newby Island Recyclery, establishing an easier standard for unions to prove that a joint employer relationship exists. This will make it easier for unions to make the upstream company, like a parent company, liable for unfair labor practices, even if the upstream company had no direct involvement. Some Background [...]
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 behalf of the subcontractor. Liquidating agreements bridge the privity gap between [...]
Flow-Down or pass-through clauses obligate downstream contractors to certain provisions contained in the up up-stream contractor contracts, such as the contract between the general contractor and the owner. These clauses are contained in every major form subcontract and they can expand the scope of your potential liability. This blog will look at typical language of a flow-down clause, what it means and how you can deal with them. [...]
This summer the Department of Labor's Wage and Hour Division issued proposed changes to the white-collar overtime regulations under the Fair Labor Standards Act (FLSA). The white collar exemptions include the executive, administrative, professional, outside sales and computer employee exemptions. The focus of the proposed regulations is to increase the salary level required to qualify for the exemption from $23,660 per year to $50,440 per year. The DOL predicts this [...]
On July 28, 2015, OSHA issued proposed rules seeking to clarify an employer’s ongoing obligation to make and maintain accurate records of work-related injuries and illness. The new rules were drafted in response to the U.S. Court of Appeals decision in AKM LLC, d/b/a Volks Constructors v. Secretary of Labor, in which a contractor successfully argued that OSHA’s citation was issued well beyond the six month limitation period. OSHA’s Injury [...]
Several months ago, I wrote about an escalator subcontractor that sued a general contractor, demanding payment for work completed based on approved shop drawings. The trial court agreed with the subcontractor, but the general contractor appealed. Ten months later, the Court of Appeals reversed, finding that the subcontractor had a duty to bring to the general contractor’s attention major discrepancies or errors they detect in the bid documents. The subcontractor [...]
The debate continues on whether a subcontractor’s faulty work constitutes property damage and an occurrence such that the insurer must cover the claim. The most recent court to weigh in on this issue is the New Jersey appellate court (one step down from the New Jersey Supreme Court) in Cypress Point Condominium Association, Inc. v. Adria Towers, LLC. In this case, the condominium association sued the general contractor, who also [...]
In a recent Trade Release OSHA announced 60-day delay in enforcing the new Confined Spaces in Construction standard. Here is my earlier blog on the new standard. Full enforcement will not begin until October 2, 2015. During this 60-day temporary enforcement period, OSHA will not issue citations to employers who make good faith efforts to comply with the new standard. Employers must be in compliance with either the training requirements of [...]
On July 15, 2015, the Department of Labor issued an Administrator’s Interpretation asserting that most independent contractors are actually employees under the Fair Labor Standards Act. The DOL claims that the FLSA’s broad definition of employment and “suffer to work” standard under the FLSA requires that most workers be treated as employees. The certainly appears to be the DOL’s warning shot over the bow and companies using independent contractors should [...]
The Deck--not quite done I had the pleasure of spending the 4th of July weekend working on a friend’s deck. Fortunately for her, and for my son and me, it was not a big project. It just involved replacing the decking, steps and railings. An old adage was reinforced for me this weekend--it’s better to have someone that knows what he’s doing handle some projects, than someone who dabbles [...]
Yep, our founding fathers, Thomas Jefferson and James Madison specifically, were responsible for proposing the first mechanic’s lien laws in the United States. Mechanic’s liens were not a new concept when the first law was passed in the United States; France, Spain and other countries already had them. But, in England, where landownership was limited to the upper classes, the concept of giving a tradesman an interest in the land for [...]
How often do you review both the additional insured language in the contract and the insurance policy provided by a subcontractor? My guess is, unless the project has gone off the rails, NEVER. Well, perhaps you should to make absolutely sure the extent of the subcontractor’s insurance obligations and whether those obligations are being fulfilled. This point was recently addressed in a recent DRI article analyzing the Deepwater Horizon/BP lawsuit. [...]
Another court has found that poor record keeping will prevent recovery on a claim. The court in Weatherproofing Tech., Inc. v. Alacran Contracting, LLC found that a contractor’s documents were a mess and that no reasonable jury could base a verdict on the contractor’s records. The underlying project involved the construction of an army training facility. The total project cost approximated $13 million. Alacran, the general contractor, subcontracted about $3 [...]
A recent Wall Street Journal article, Worker Shortage Hammers Builders, noted that construction industry employers are facing a tight labor market. U.S. builders shed more than 2 million jobs during and after the housing bust. Now they say they can’t find enough carpenters, electricians, plumbers and other craftsmen for a growing pipeline of work. That is certainly consistent with everything that I’ve heard and read about construction companies in the [...]
