Latest News

20 Jun, 2017

Don’t Get Caught Holding the Bag: Hold the State Liable When General Contractor Fails to Pay on a Public Project.

By |2018-04-23T18:22:19+00:00June 20th, 2017|Bond Claims, Breach of Contract, Construction Claims, Construction Contractor Advisor, Construction Law, Government Contracting, Lien Rights, Midwest Agricultural Law, Nebraska Construction, Payment Bond|

Holding the Bag 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 [...]

8 Aug, 2016

Pulled from the Swamp: EPA Wetland Determination Now Judicially Reviewable

By |2018-04-23T18:22:19+00:00August 8th, 2016|Construction Activity, Construction Contractor Advisor, Construction Law, EPA, Midwest Agricultural Law|

Landowners and developers bogged in an EPA wetland determination were recently thrown a life line when the United States Supreme Court determined The Army Corps of Engineer's (Corps) "jurisdictional determinations" (JD) regarding wetland designations are reviewable by the court.  United States Army Corps of Engineers v. Hawkes Co. Inc. Under the Clean Water Act (CWA) landowners and developers who do not have the proper permits can face severe criminal and [...]

7 Jul, 2015

Hire the Right Professional for the Job

By |2018-04-23T23:55:10+00:00July 7th, 2015|Construction Contractor Advisor, Construction Law|

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 [...]

29 Jan, 2015

Why I Love Being Your Construction Attorney

By |2018-04-23T23:55:11+00:00January 29th, 2015|Construction Contractor Advisor, Construction Law|

I love working as a construction attorney because I get to work with clients who love what they do. As a construction attorney, I have the privilege of working with individuals who have taken their passion, created a business, and are striving for success. These individuals, that love the trade, love the work, but hate the legal red tape, are the reason I love doing what I do. I was [...]

23 Jan, 2015

Construction Law Seminar–Free

By |2018-04-23T23:55:11+00:00January 23rd, 2015|Construction Contractor Advisor, Construction Law|

SAVE THE DATE Tuesday, March 10, 2015  Best Practices in Construction Seminar La Vista Conference Center 12520 Westport Parkway, La Vista, Nebraska‎ Goldleaf Surety is sponsoring a seminar on Construction Best Practices.  I will be presenting on the following topics: Lien Claims in Nebraska and Iowa Filing a lien may prove to be one of your best protections to get paid. But, doing it right is crucial to getting paid. During [...]

6 Oct, 2014

When Do You Call Your Lawyer?

By |2018-04-23T23:55:13+00:00October 6th, 2014|Construction Contractor Advisor, Construction Law|

The National Association of Home Builders recently conducted a survey asking its members about the legal issues they faced in the last 12 months and whether they consulted their attorney to deal with the problem. Below are some highlights of the survey. Legal Issue % of Homebuilders % Contacted Counsel Warranty/call back claims 34% 51% Contract disputes 22% 84% Defective Install/Workmanship 20% 83% OSHA Issues 13% 33% CGL Coverage Questions [...]

15 Dec, 2013

Is the Accepted and Completed Work Doctrine Evolving?

By |2018-04-23T23:55:16+00:00December 15th, 2013|Construction Contractor Advisor, Construction Law|

A recent case out of Colorado raises a question as to the continued use of the accepted and completed work doctrine and indicates that courts are abandoning the rule in favor of the foreseeability rule. Nebraska courts still apply the accepted and completed work, but change may be afoot.  Let's take a look at these two rules. Accepted and Completed Work Doctrine Under the completed and accepted rule, an independent [...]

2 Jul, 2013

Does CGL Insurance Cover Construction Defects? The Debate Continues.

By |2018-04-23T23:55:17+00:00July 2nd, 2013|Construction Contractor Advisor, Construction Law|

The debate of whether construction defects are covered by commercial general liability (“CGL”) insurance continues. The West Virginia Supreme Court recently reversed its longstanding position that construction defects were not covered by CGL insurance and joins the growing majority of state courts that have determined that defective work is covered by commercial general liability insurance. In West Virginia’s recent case, Cherrington v. Erie Insurance Property & Casualty Co., Ms. Cherrington [...]

7 Jun, 2012

Setting Up a Contract Administration System, Part II

By |2012-06-07T08:15:39+00:00June 7th, 2012|Construction Contracts, Construction Law, Nebraska Construction|

As promised, here are a few more necessary steps to set up a Contract Administration System. You can find the first two steps here. Today, we’ll discuss contract risks and the theories you may pursue to recover your damages, along with checklists for making common claims. Who is Responsible for the Risk? It is important to consider who is responsible for the risk associated with the project. When considering who [...]

29 May, 2012

Does Your Company Have a Contract Administration System?

By |2012-05-29T15:17:56+00:00May 29th, 2012|Construction Law, Contract|

These is the first in a series of blogs that will discuss the importance of creating a Contract Administration System that will help you better track your contracts and improve your chances of recovering full payment. Below are the first 2 of 10 steps to create a Contract Administration System. But first, why set up a Contract Administration System? It is becoming increasingly difficult to get owners to pay for change orders [...]

1 May, 2012

Are you Communicating with Your Bonding Company about Claims?

By |2012-05-01T14:50:01+00:00May 1st, 2012|Bond Claims, Construction Law|

How well do you communicate with your bonding company when you receive notice of a claim? A recent case out of Indiana highlights the problems that can occur if you do not investigate the claims and timely report back to the bonding company. In this case, the bonding company was contacted by various subcontractors demanding payment. The bonding company called the contractor to investigate the claim. It took several weeks [...]

17 Apr, 2012

The Joys of Litigating a Construction Claim

By |2012-04-17T08:32:54+00:00April 17th, 2012|Building Contracts, Construction Contracts, Construction Law, Nebraska Construction|

The Nebraska Court of Appeals recently decided a construction defect claim that illustrates the frustration that may result with taking a case to trial. After one trial and two appeals, the Court of Appeals sent the case back to the trial court to try the case a second time. And, this was over a $15,000 claim. This is one of those situations where someone is saying, “Only the attorneys got [...]

13 Mar, 2012

Judge Invalidates PLA on New York Road Project

By |2012-03-13T14:36:40+00:00March 13th, 2012|Construction Law, Government Contracting|

Earlier this month, a judge in Albany, New York, invalidated a government mandated Project Labor Agreement (PLA), finding that the New York Department of Transportation failed to demonstrate that the PLA advanced the interests of the state’s competitive bidding statutes. A copy of the opinion can be found here. The Court’s decision took the Department of Transportation (“DoT”) to task, ultimately finding that the DoT failed to support its decision [...]

10 Mar, 2012

Do You Have Pay-if-Paid Clauses in Your Contract?

By |2012-03-10T09:35:45+00:00March 10th, 2012|Construction Law, Contract|

Do you review the payment terms in your contracts? Do they contain a Pay-if-Paid clause? Did you know that this clause can bar your claim if the owner does not pay the general contractor? Pay-if-paid clauses can be very complicated, but well worth reviewing so that you can adequately gauge your risk before you take on a project. A recent case highlights the problems that a pay-if-paid clause can cause. [...]

7 Mar, 2012

Notice Provisions—Are you abiding by them?

By |2012-03-07T08:46:35+00:00March 7th, 2012|Construction Contracts, Construction Law, Nebraska Construction|

Construction contracts often contain notice provisions that a subcontractor must follow to request additional compensation for work performed. While the notice provisions are generally straightforward, they are often one sided and a subcontractor’s failure to follow them may bar the subcontractor’s claim. A common form of change order is found in the AIA A201, which provides: Claims by either the Owner or Contractor must be initiated by written notice to [...]

9 Feb, 2012

What do you mean you won’t honor your bid?

By |2012-02-09T15:14:51+00:00February 9th, 2012|Construction Contracts, Construction Law, Nebraska Construction|

As a general contractor, you hate to hear that your subcontractor will not honor its bid. But, there are remedies. You may even be entitled to expectation damages – the difference between what you thought you were going to pay the old subcontractor and what you paid the new subcontractor. When a subcontractor submits a bid on which the general contractor relies in bidding a project, the general contractor may [...]

5 Jan, 2012

Government Contracting can be Difficult

By |2012-01-05T12:35:25+00:00January 5th, 2012|Construction Contracts, Construction Law, Government Contracting, Nebraska Construction|

Contractors often complain that while government contracts are good for business, the governmental bureaucracy is oftentimes more hassle than it is worth. A recent decision of the Boards of Contract Appeals and the Comptroller General drives this point home. In this recent situation, a service-disabled veteran-owned small business was the low bidder on a Department of Veteran Affairs project. However, the contracting officer determined that the low bid was unreasonably [...]

22 Dec, 2011

Who’s Reviewing Your Contracts?

By |2011-12-22T08:13:20+00:00December 22nd, 2011|Construction Contracts, Construction Law, Contract, Nebraska Construction|

I came across a Linked-In post the other day in which an attorney was asking whether he should add any extra language to an AIA agreement between the owner and contractor. This question got me wondering how  many construction companies ponder the same question. Here are some questions to think about as you wait for the holiday party to start. Should your attorney review the contracts you are signing? And, [...]

21 Nov, 2011

What Core Competencies Do You Expect From Your Construction Attorney?

By |2011-11-21T17:57:12+00:00November 21st, 2011|Construction Law, Nebraska Construction|

A friend of mine, Cordell Parvin, retired construction attorney and now legal consultant, recently shared a list of core competencies that he expected new construction attorneys in his firm to learn. Here is a copy of his list. It covers everything from general knowledge of the construction industry and construction law, to contract drafting and dispute resolution.  It also contains a few items that I need to brush up on. It also got me thinking [...]

9 Nov, 2011

Wouldn’t It Be Nice to Limit Your Liability?

By |2011-11-09T19:21:02+00:00November 9th, 2011|Construction Contracts, Construction Law, Contract, Documentation, Limit Liability, Nebraska Construction|

Did you know that you may be able to limit your liability on a construction project? Limitation of liability provisions are enforceable in Nebraska and may provide an effective method to limit your liability. Limitation of liability clauses generally set forth the upper limit a contractor may be liable for the work it performs. These clauses often times contain language like: Contractor’s maximum liability to Owner for all damages shall [...]

26 Oct, 2011

Change Orders – Do They Really Need to Be In Writing?

By |2011-10-26T09:52:14+00:00October 26th, 2011|Change Orders, Construction Contracts, Construction Law, Contract|

Well, it depends. Client questions and case law abound with questions about change orders and whether they really need to be in writing. Although Nebraska courts have not dealt with the issue in a while, courts around the country have recently addressed this question and it always comes down to the specific facts involved. But, if your contract requires a change order in writing, you would be well advised to [...]

10 Aug, 2011

Can you improve your documentation system?

By |2011-08-10T11:26:34+00:00August 10th, 2011|Construction Contracts, Construction Law, Documentation, Limit Liability, Nebraska Construction|

Last week we blogged on documentation to support the amount of a construction lien. This, however, is just the tip of the documentation iceberg.  For those of you who have experienced construction litigation, you know the large number of documents involved in a case. And, perhaps you are familiar with the awkward feeling of not being able to locate fundamental documents, like the signed contract. A good documentation system will serve [...]

2 Aug, 2011

So You’ve Got A Lien, Now What?

By |2011-08-02T16:41:49+00:00August 2nd, 2011|Construction Law, Construction Lien|

A contractor sometimes believes 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 [...]

27 Jul, 2011

Contractor Registration – It Applies to You

By |2011-07-27T09:11:49+00:00July 27th, 2011|Construction Law, Contractor Registration, Nebraska Construction|

If you are a contractor doing business in Nebraska, you should be registered under the Contractor Registration Act. Although the registration requirements are not difficult, the penalties for failing to register can be significant.Under the Contractor Registration Act , all contractors performing work in Nebraska, both Nebraska and out of state companies, must be registered with the Department of Labor and obtain a registration number. The registration process is available on-line [click here] [...]

20 Jul, 2011

What do you do about Union Activity?

By |2011-07-20T10:07:00+00:00July 20th, 2011|Construction Law, Unioin Campaign, Union Free|

Have you received a letter from a union claiming you are not paying area standard wages? Have the picketers started visiting your worksite? What’s a company to do? Well, if the picketers are already on your doorstep, you have some catching up to do. If you haven’t received the letter, yet, there is time and plenty to do to prepare your company for a union campaign. There are a number [...]

12 Jul, 2011

Getting Paid for Your Work

By |2011-07-12T15:13:43+00:00July 12th, 2011|Construction Contracts, Construction Law, Subcontractor|

More contractors and subcontractors are having trouble getting paid for their work.  While an owner losing financing is nothing new, subcontractors are more and more finding pay-if-paid clauses in their contracts that arguably prevent them from pursing the general contractor for payment. What can you do to minimize this risk? Read Your Contract I know this sounds obvious, but pay-if-paid clauses can get stuck deep in the contract. And, after [...]

22 Jun, 2011

Federal Contractors Beware

By |2011-06-22T07:32:28+00:00June 22nd, 2011|Affirmative Action Plan, Construction Law, OFCCP Audit|

The Office of Federal Contract Compliance Programs (OFCCP) has proposed changes to its Scheduling Letter and Itemized Listing that it uses to announce audits to contractors. While the OFCCP claims it is trying to reduce the overall burden on contractors, the proposed changes, if allowed, will greatly increase the documentation contractors subject to OFCCP audits must turn over or make available.  As some of you unfortunately know, the OFCCP’s Scheduling Letter [...]

15 Jun, 2011

Five Steps to Avoid Being Sued

By |2011-06-15T07:17:28+00:00June 15th, 2011|Construction Law, Limit Liability, Litigation|

I have yet to meet a client who has enjoyed being involved in a lawsuit.  The cost of a large document production, the stress of sitting for depositions, and the time to prepare for trial can weigh heavily on a company and its owners.  But, there are some steps that you can take to limit, if not avoid, being sued.  Know the terms of the contract. You must know and [...]

8 Jun, 2011

Do you Really have Independent Contractors?

By |2011-06-08T08:39:11+00:00June 8th, 2011|Construction Law, Employee, Independent Contractor, Limit Liability|

The Department of Labor has increased its focus on independent contractors. Knowing whether your workers are independent contractors or employees is more important than ever. But how do you know? Regulatory authorities have identified a number of factors to determine whether your workers are independent contractors, but the primary factors are: The degree and extent or control you exercise over the worker; Whether the worker works for anyone else; Level [...]

1 Jun, 2011

Construction Contracts: Top Tips – What are the Terms?

By |2011-06-01T08:44:21+00:00June 1st, 2011|Construction Contracts, Construction Law, LEED, Limit Liability|

This is the first in an ongoing series discussing construction contracts. Would you ever agree to a contract without knowing the terms? Most contractors would say no, perhaps a bit more emphatically. But, it happens every day—where contract terms that you have never seen are incorporated into the contract by reference. Be on the lookout for phrases that incorporate external terms or standards to make sure you know what you [...]

24 May, 2011

Minimizing your Risk in Green Building

By |2011-05-24T15:22:37+00:00May 24th, 2011|Construction Contracts, Construction Law, Green Building, LEED, Limit Liability, Sustainable Building|

Green or sustainable building has become a focal point in the construction industry.  And, with sustainable building contracts come green building obligations.  Contractors and subcontractors have to make sure they understand these requirements for “green” projects.  LEED (Leadership in Energy and Environmental Design), created by the USGBC (United States Green Building Council) is the leading method for “green” certification.  The LEED rating system has a number of requirements, just a [...]

20 May, 2011

Limiting your Liability in Construction Contracts

By |2011-05-20T13:41:30+00:00May 20th, 2011|Construction Contracts, Construction Law, Limit Liability|

Have you ever wondered if you can limit your liability on a construction project?  Well, there are ways that this can be done.  Nebraska courts have allowed contractors to limit their liability, but only in limited circumstances.   The contract might contain a waiver of subrogation clause.  This means that if the owner’s insurer pays for damage, even if it’s caused by the contractor, the owner cannot pursue claims against [...]

18 May, 2011

Protecting your Payment Rights on Public Projects

By |2011-05-18T13:36:53+00:00May 18th, 2011|Construction Law, Payment Bond, Public Contracts|

Our clients often ask how they can best protect their rights on a public construction project because they know they can’t file a lien.  Contractors on public projects must be very careful about protecting their claim because there are very specific steps that must be followed.               Nebraska statute section 52-118 contemplates two types of situations--those in which the subcontractor or supplier has a contract with the contractor and those [...]

11 May, 2011

OSHA Holds True on its Promise to Increase Penalties

By |2011-05-11T13:43:57+00:00May 11th, 2011|Construction Law, OSHA, Penalty|

I’m sure you all recall OSHA’s big press release last year when it announced revisions to its penalty framework to increase penalties.  Well, OSHA is now using the revised framework and the penalties are stiff.    A review of OSHA penalties in Region 7, covering Iowa, Kansas, Missouri, and Nebraska, shows significant penalties.  A stucco company in Kansas was fined $147,000 for two repeat and one serious violation where employees [...]