Maybe you have negotiated with your counterpart to include an arbitration provision in your construction contract or picked up a form contract that selects arbitration as the method of dispute resolution. Regardless of the circumstances, when the time and need for arbitration comes, the big question remains, who will be the arbitrator(s) tasked with the fate of my case, my client, my company or my project?When it comes down to [...]
Lamson Dugan & Murray LLP is pleased to announce that Craig F. Martin will be expanding his construction practice to include mediation of construction disputes. Craig is certified in mediation by the Supreme Court of Nebraska, having completed both the Nebraska Mediation Association and Advanced Federal Practice Mediation Training programs. For more than 25 years, Craig has helped construction clients resolve all types of construction disputes. During that [...]
There are few, if any, construction projects that were not impacted by COVID-19. Now that we have all dealt with these impacts, it’s time to look ahead and determine if your construction contracts should be updated to address these impacts. Below are some provisions that you should review to address future COVID type situations. Notice Provisions Delivery of notices is a critical obligation under construction contracts. But, what if the [...]
The U.S. Attorney for Minnesota recently indicted a contractor for defrauding the Paycheck Protection Program ("PPP"). Given the broad uses of PPP loans, this contractor went pretty far out of bounds to get himself indicted. The U.S. Attorney’s press release explained the underlying allegations. Strike One: The contractor applied for a PPP loan well after his construction company had stopped operation. Strike Two: The contractor submitted false employee and expense [...]
The Coronavirus Aid, Relief, and Economic Security (CARES) Act was just passed and it contains a number of provisions that will benefit the construction industry, including, the Paycheck Protection Program, unemployment, and delayed payroll taxes. Below are a few of the highlights. Paycheck Protection Program This is a low interest loan program for small businesses that were operational since February 15, 2020 and had employees to whom it paid wages. [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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. [...]
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 [...]
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 [...]
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 [...]
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, [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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] [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
