Latest News

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 [...]

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 [...]

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 [...]

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 ____ [...]

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 [...]

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 [...]

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 [...]

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 [...]

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, [...]

21 Jun, 2018

Heirs or Errors to the Throne? The Importance of Thoughtful Business Entrance Planning

2018-07-03T14:51:57-05:00June 21st, 2018|Construction Contractor Advisor, Midwest Agricultural Law, Uncategorized|

The following was authored by attorney, Shannon G. McCoy, Lamson, Dugan & Murray, LLP and written for submission in the National Land Improvement Contractors of America (LICA) newsletter.    Succession planning frustration One Month before Your Planned Retirement, 2038: Owner:            Alright Steve, Mike, and Kelsey, the day has finally come, it is time to sell my 100% ownership interest in Family Business, LLC, and each of you gets to purchase an [...]

7 Feb, 2018

Is Equal Always Fair? The Importance of Thoughtful Business Succession Planning

2018-07-03T14:57:00-05:00February 7th, 2018|Construction Contractor Advisor, Farm Management, Midwest Agricultural Law|

Originally submitted by Dan Waters, Attorney & Sean Minahan, Attorneys  Lamson, Dugan and Murray, LLP; Proud members of C2C in the LICA Contractor.  The issues and discussions addressed in the following apply equally to family farm succession planning as they do for succession planning of family owned contracting companies.   Christmas Dinner, 2042: Steve: Mike, pass the sweet potatoes. . . . Mike, I said pass the sweet potatoes! Mike:  [...]

13 Nov, 2017

Turning Friends into Foes: Legal Fallout from Monsanto’s Dicamba

2018-04-23T18:22:19-05:00November 13th, 2017|Biotechnology, Construction Contractor Advisor, Crop Damage Claims, Government Regulations, Midwest Agricultural Law|

Monsanto's dicamba has turned friendly neighbors into legal foes due to crops damaged by dicamba's inability to stay where it is supposed to be.   With the soybean harvest basically complete, we are seeing more and more claims filed and litigation initiated.  Farmers are calculating the effect that dicamba applied by a neighbor may have had on their fields. States like Arkansas, Minnesota, North and South Dakota, Tennessee and Indiana are [...]

20 Jun, 2017

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

2019-03-12T09:20:02-05:00June 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|

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 [...]

15 Sep, 2016

Not So Fast: RMA Continues to Scrutinize New Producer Crop Status

2019-03-12T09:24:08-05:00September 15th, 2016|Construction Contractor Advisor, Crop Insurance, Farm Management, Government Regulations, Midwest Agricultural Law|

If you have received a Notice of Overpayment and Removal of New Producer Status from your crop insurance company, you are not alone.  In 2012 the Risk Management Agency started auditing crop insurance applications wherein the insured had requested "New Producer" status.  The effects of the audit have come to fruition in the last few years. The notices generally demand immediate payment of any indemnity paid pursuant to the benefits [...]

8 Aug, 2016

Pulled from the Swamp: EPA Wetland Determination Now Judicially Reviewable

2019-03-12T09:27:20-05:00August 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 [...]

2 Aug, 2016

Pulled from the Swamp: EPA Wetland Determination Now Judicially Reviewable

2019-03-12T09:25:23-05:00August 2nd, 2016|Construction Contractor Advisor, Government Regulations, Midwest Agricultural Law, Water 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 [...]

17 May, 2016

North Dakota Farmer’s 4 Year Sentence for Insurance Fraud Upheld

2018-04-23T18:22:20-05:00May 17th, 2016|Construction Contractor Advisor, Crop Insurance, Midwest Agricultural Law|

Such is the life of a farmer.   Even in times of a good crop, the potential insurance claim may be more valuable than the crop itself.  That may have been the case for Aaron Johnson of Norwood, North Dakota, who in 2014 received a 4 year sentence for receiving crop insurance payments on a potato crop he purposely damaged. According to court records, Johnson had his hired man spray [...]

5 Jan, 2016

Your Contract is a Hodgepodge of Conflicting Proposals

2018-04-23T23:55:09-05:00January 5th, 2016|Construction Contractor Advisor, Construction Contracts|

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 [...]

23 Dec, 2015

Insuring Additional Acres? The Number of Acres Added May Affect Your Coverage

2018-04-23T18:22:20-05:00December 23rd, 2015|Construction Contractor Advisor, Crop Insurance, Farm Management, Government Regulations, Midwest Agricultural Law|

Added Land: Insurance Options Ahead   Farm land does not change hands very often but when it does the acquiring operator should keep in mind the rules which may affect the operator's crop insurance benefits covering the newly added land. Failing to understand and abide by the Risk Management Association's (RMA) rules can cost an operator the maximum guaranteed yields and dramatically reduce the indemnity available under the [...]

16 Dec, 2015

The Ghosts of Projects Past

2018-04-23T23:55:09-05:00December 16th, 2015|Construction Claims, Construction Contractor Advisor|

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 [...]

11 Dec, 2015

Foregoing Work Comp Coverage? Remember to Provide Notice.

2018-04-23T18:22:20-05:00December 11th, 2015|Construction Contractor Advisor, Farm Management, Government Regulations, Midwest Agricultural Law|

Work Comp Claim Form   Early in my career I had a Nebraska case come across my desk which involved a farm hand falling and striking his head while working on a farm truck.  The farmer had not obtained a workers' compensation policy to cover such accidents because most farms and ranches are not required to provide workers' compensation in Nebraska.  Unfortunately, the farmer had failed to have [...]

7 Dec, 2015

Changing Course Midstream Did Not Work in River Dredging Project

2018-04-23T23:55:09-05:00December 7th, 2015|Construction Contractor Advisor, Construction Contracts, Government Contracting|

  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.  [...]

1 Dec, 2015

Are Defense Costs In Addition to Policy Limits?

2018-04-23T23:55:09-05:00December 1st, 2015|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 [...]

21 Nov, 2015

Happy Thanksgiving

2018-04-23T23:55:09-05:00November 21st, 2015|Construction Contractor Advisor|

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, [...]

16 Nov, 2015

The Secret to an OSHA Inspection

2018-04-23T23:55:09-05:00November 16th, 2015|Construction Contractor Advisor, OSHA|

Wouldn’t it be nice to know ahead of time what an OSHA inspector will be looking for when he comes to your work site?  Well, I know the secret.  And, it’s not really a secret.  Just look at OSHA’s top ten citation standards and it becomes quite clear. In 2015, OSHA’s top ten most frequently cited violations are: Fall protection (C) Hazard communication Scaffolding (C) Respiratory protection Lockout/tagout Powered industrial trucks Ladders [...]

13 Nov, 2015

Crop Insurance Claim Denied? Steps to Take Before Weathering the Arbitration Storm

2018-04-23T18:22:20-05:00November 13th, 2015|Construction Contractor Advisor, Crop Damage Claims, Crop Insurance, Farm Management, Government Regulations, Midwest Agricultural Law|

  Every year, certain portions of the Midwest get pounded by bad weather causing bad yields or outright crop loss.  This year, several states encountered above average rainfall preventing several million acres from being planted.  At one point this summer, Missouri alone had approximately 4 million acres of un-planted corn and soybean acres.   During times of devastating weather, many producers rely on their crop insurance policies to mitigate crop [...]

9 Nov, 2015

Arbitration Clauses—Where will you be arbitrating?

2018-04-23T23:55:09-05:00November 9th, 2015|Arbitration, Construction Contractor Advisor|

  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 [...]

2 Nov, 2015

Know Your Obligations Under Both the Prime Contract and Subcontract

2018-04-23T23:55:09-05:00November 2nd, 2015|Construction Contractor Advisor, Construction Contracts|

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, [...]

24 Oct, 2015

Location, location, location—even in construction liens

2018-04-23T23:55:09-05:00October 24th, 2015|Construction Contractor Advisor, Construction Lien|

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, [...]

22 Oct, 2015

Apply for Your Commercial Drone Use Exemption Now

2018-04-23T18:22:20-05:00October 22nd, 2015|Construction Contractor Advisor, Farm Management, Government Regulations, Midwest Agricultural Law|

As previously explained the Federal Aviation Administration (FAA) is working on a rule to allow commercial use of unmanned aircraft (i.e. drones) without going through the same rules for manned aircraft.  However, until the rule is finalized farmers and ranchers can apply for an exemption under Section 333 of the FAA Modernization and Reform Act of 2012 (FMRA). The exemption process is not necessarily easy.  However, the FAA website provides [...]

19 Oct, 2015

Be Careful When Requiring Fitness for Duty Examinations

2018-04-23T23:55:09-05:00October 19th, 2015|Construction Contractor Advisor, Employee Safety|

  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, [...]

13 Oct, 2015

The 6th Circuit Puts the Brakes on EPA Enforcing New Definition of Waters of the US

2018-04-23T18:22:20-05:00October 13th, 2015|Construction Contractor Advisor, Government Regulations, Midwest Agricultural Law, Water Law|

  The Environmental Protection Agency (EPA) was set to begin enforcing the new definition of Waters of the United States (WOTUS) on August 28, 2015.  However, several states filed suits in various jurisdictions alleging the EPA lacked the authority to expand its jurisdiction pursuant to the new definition.  Now the United States Court of Appeals for the 6th Circuit has put the brakes on the EPA's plan to enforce WOTUS [...]

12 Oct, 2015

Following My Own Advice

2018-04-23T23:55:09-05:00October 12th, 2015|Construction Contractor Advisor, E-Verify|

  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 [...]

4 Oct, 2015

The Importance of Providing Notice to a Surety

2018-04-23T23:55:10-05:00October 4th, 2015|Bond Claims, Construction Contractor Advisor|

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, [...]

29 Sep, 2015

What To Do When the Government is Slow to Decide a Claim?

2018-04-23T23:55:10-05:00September 29th, 2015|Construction Contractor Advisor, Government Contracting|

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 [...]

21 Sep, 2015

Workplace Safety–the Unpreventable Employee Misconduct Defense

2018-04-23T23:55:10-05:00September 21st, 2015|Construction Contractor Advisor, OSHA|

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 [...]

13 Sep, 2015

Suing the Lowest Bidder on Public Construction Projects

2018-04-23T23:55:10-05:00September 13th, 2015|Construction Contractor Advisor, Public Contracts|

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 [...]

7 Sep, 2015

NLRB Broadens the Joint Employer Standard

2018-04-23T23:55:10-05:00September 7th, 2015|Construction Contractor Advisor, Unioin Campaign|

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 [...]

30 Aug, 2015

Liquidating Agreements—Bridging the Privity Gap for Subcontractors

2018-04-23T23:55:10-05:00August 30th, 2015|Construction Contractor Advisor, Construction Contracts|

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 [...]

24 Aug, 2015

Flow-Down Clauses Can Drown Your Project

2018-04-23T23:55:10-05:00August 24th, 2015|Construction Contractor Advisor, Construction Contracts|

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.     [...]

17 Aug, 2015

The New “White Collar” Exemption Regulations

2018-04-23T23:55:10-05:00August 17th, 2015|Construction Contractor Advisor, FLSA|

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 [...]

10 Aug, 2015

OSHA Issues New Rules on Injury Record Keeping

2018-04-23T23:55:10-05:00August 10th, 2015|Construction Contractor Advisor, OSHA|

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 [...]

3 Aug, 2015

Subcontractors Have a Duty to Clarify Ambiguities in Bid Documents

2018-04-23T23:55:10-05:00August 3rd, 2015|Construction Contractor Advisor, Construction Contracts|

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 [...]

30 Jul, 2015

Crop Insurance Deadline: Missouri AG Tries to Buy Time for Flooded Farmers

2018-04-23T18:22:20-05:00July 30th, 2015|Construction Contractor Advisor, Crop Insurance, Midwest Agricultural Law|

Too wet to plant   Earlier this month, Chuck Koster, Attorney General for Missouri, filed a lawsuit against Tom Vilsack, U.S. Secretary of Agriculture to extend the deadline for filing  planted acreage reports.  The USDA requires most farmers in Missouri to report their planted acres by July 15 in order to secure coverage under the farmers' crop insurance policies.  The USDA allows farmers a 5 day grace period [...]

27 Jul, 2015

Insurance Policy Language Really Does Matter

2018-04-23T23:55:10-05:00July 27th, 2015|Construction Contractor Advisor, Insurance coverage|

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 [...]

22 Jul, 2015

OSHA Delays Enforcement of Confined Spaces Rules

2018-04-23T23:55:10-05:00July 22nd, 2015|Construction Contractor Advisor, OSHA|

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 [...]