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 [...]
COVID-19 is hampering all aspects of our lives, and the construction industry is no exception. As you continue to assess your construction projects, don’t forget that you likely have notice obligations to upstream contractors or the owner to let them know of potential delay and cost increase claims. Review Your Contract Your contract probably requires you to provide notice of delays to upstream contractors or the owner. And, it likely [...]
We are all feeling the impact of the Corona virus, either because we or someone we know has been exposed or it is causing changes to our schedules. Have you given any thought about how the schedule on your project will be impacted? This could come in the way of a reduced labor force or scarcity of building materials. Perhaps it’s time to look at your contract to see how [...]
Have you ever considered whether you could be held personally liable for signing company documents? Maybe you should, especially if you know the documents are false. A recent case out of Ohio, Decker v. Wesex, is considering whether the CFO of a construction company can be held personally liable for falsifying affidavits that stated that the construction company was paying its subcontractors. In this case, Wesex was hired to build [...]
I often harp on the importance of having an experienced construction attorney review your construction contracts. A recent situation at Dartmouth College emphasized the importance of anticipating the unexpected when reviewing your construction contracts. Dartmouth is building a new $200 million engineering school, with a 340 vehicle underground parking garage. The first step was to dig a 70-foot-deep hole for the 160,000 square foot building. The problem is that the [...]
According to a quick Google search the term holding the bag" comes from the mid eighteenth century and means be left with the onus of what was originally another's responsibility. Nobody wants to be left holding the bag. But that is the situation our client (subcontractor) found themselves in when upon completion of a public project the general contractor went out of business before paying the remaining amount due and [...]
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 recent article in the Construction Executive discussed the importance of preserving your claim, both in terms of timeliness of submitting your claim and making sure that you aren't waiving portions of your claim when executing releases. These are all excellent points and bear some follow-up. Timing Your Claim I often review construction contracts that contain deadlines by which claims must be submitted. It may seem counter intuitive to think [...]
Construction Insurance Coverage Ah, the age old question, What does my insurance really cover? A federal court in Georgia recently weighed in on this issue in Standard Contractors, Inc. v. National Trust Insurance Company, and ruled that a contractor’s commercial general liability insurer did not have to pay for damage caused by a subcontractor. Standard Contractors was hired to renovate the pool on an army base. Standard hired [...]
Looking for assistance with a construction problem? Whether a contractor will be liable to a second purchaser, even though the contractor never contracted with the second purchaser, varies state to state. The Pennsylvania Supreme Court, in Conway v. The Cutler Group, is the latest court to rule that a subsequent purchaser lacks privity and cannot pursue an action against the builder. In that case, the Conways purchased a [...]
Thanks to everyone that attended last week’s Lunch & Learn on preparing claims. We had some great discussion from both the ranks of general contractors and subcontractors. For those of you that missed the meeting or didn't pick up the handout, A Winning Procedure to Develop a Request for Compensation, send me an e-mail and I'll send it to you. My e-mail address is cmartin@ldmlaw.com. In a nutshell, to develop [...]
The Nebraska Court of Appeals has ruled that a home builder that fails to adequately compact the soil does not have insurance coverage to repair damages to the home caused by the settling soil. In “insurance speak”, there was no occurrence to trigger coverage. In this case, Cizek Homes, Inc. v Columbia National Insurance Company, a home builder contracted with a buyer to build a house. A lot was selected and [...]
Nothing puts your record keeping practices under a microscope like litigation. Every piece of paper that you created or kept on a project may be reviewed and analyzed. And, every decision to throw away a document will be assessed to figure out why you didn't keep it. The best way to ensure you have the necessary documents to support your claim is to have a written document retention policy. Do [...]
