The schedule on construction projects is often as important as the budget. So, when I read an article that identifies significant problems with a project, but specifically notes that the general contractor says that the problems will not create any delays, I often wonder if the parties are being realistic. I also wonder whether the subcontractors will be forced to work extra time to make up the schedule. ENR recently [...]
According to Bloomberg News, the Federal Reserve Bank of Kansas City recently reported that “farm finances deteriorated across a swash of agricultural states during the summer and early fall . . .” Specifically, farm income fell in the third quarter from a year ago in each of seven rural states covered by the K. C. Fed., while farmers’ dependence on federal assistance programs increased. This situation is due, in part, [...]
This year, every other blog post will address common construction contract clauses. My hope is that my readers will either find the content a good refresher or provide a new understanding of common construction clauses. Today, I’ll address the Scope of Work provision. Some contractors and construction attorneys would argue that the Scope of Work provision in the contract is the most important section because it defines what a contractor [...]
On January 9, 2020, LDM Attorney, Mike Storey, obtained a unanimous defense verdict after a three-day jury trial in the District Court of Douglas County, Nebraska. At trial, the plaintiffs sought $100,000.00 in damages for injuries, including PTSD and anxiety, as a result of a motor vehicle accident involving plaintiff’s vehicle and two other vehicles. Mr. Storey convinced the jury that his client was not negligent and that the accident [...]
Lamson Dugan & Murray LLP is pleased to announce that attorneys Daniel J. Hassing and Sarah M. Dempsey have become partners of the Firm as of January 1, 2020. Sarah Dempsey is an attorney in the litigation department at Lamson Dugan & Murray LLP in Omaha, Nebraska. Her practice focuses on personal injury defense, professional liability defense, and business litigation. Ms. Dempsey has successfully defended clients in car accident cases, [...]
Congratulations, you have just been awarded a big contract. You have beaten out your competition and this project will show case your company’s talents and dedication to the industry. You have mobilized your crew and you are ready to get to work. Then you get the notice from the owner that the project is canceled, and you are terminated for convenience. This is far from convenient for you, but what [...]
Here's proof: More than 100 local professionals have earned the exceptional Chartered Advisor in Philanthropy designation. This means 106 people from careers in law, finance, nonprofit development, and others have been trained on the intricacies of philanthropy since 2012. The Chartered Advisor in Philanthropy program is a graduate-level, rigorous year-long course administered by The American College in Bryn Mawr, Pa., and is led locally by the Omaha Community Foundation and [...]
The Gilbert C Swanson Foundation has announced a change in leadership with retirement of some of its long-term directors and officers and the addition of new directors. President of the Board Timothy C. Fitzgibbons, MD, Vice President William M. Lamson, Jr., Secretary Jack A. Stark Ph.D., and treasurer Ms. Colleen Warin will retire from the Board after many years of service. Mary Anne Holm will remain on the Board. Recently [...]
Over the past few years, I’ve posted blogs about the Seattle Viaduct project and the problems Bertha, the tunnel-boring machine, ran into on the project. Not surprisingly, the parties sued each other. And, Big Bertha’s problems continued into the courtroom. As some of you may recall, Big Bertha was launched with much fanfare, then ran into a pipe and stopped working. The project was finally completed in February, 2019, three [...]
When a loss occurs at your feeding operation, it can be a devastating time. Obviously, insurance can help minimize the devastation. However, you must have the right insurance and be able to stay out of the many insurance exclusions. Insurance coverage is costly, and an owner may assume the premium price covers all the perils but there are often exclusions preventing the needed coverage. The very common “care, custody, or [...]
Earlier this month, OSHA released its final statistics for 2019 and they show a significant increase in the number of inspections. But, OSHA also provided a record number of compliance training opportunities for employers. OSHA Inspections This past year, OSHA conducted 33,401 inspections addressing violations related to trenching, falls, chemical exposure, silica and other hazards. This is up nearly 1,400 from the previous year. OSHA Training OSHA also provided a [...]
Cathy Trent-Vilim, a partner at Lamson Dugan & Murray LLP, spoke at the NATA seminar on Friday, December 6th, 2019. Her presentation, “Properly Preserving the Record on Appeal, Appellate Tips and Practices, and What is a Final Order?” discussed many steps in the appeal process. The Nebraska Association of Trial Attorneys (NATA) is dedicated to the improvement of trial practice, preservation of the jury system, and quality continuing legal education. [...]
Waiver of Subrogation clauses are contained in nearly every form construction contract. Contractors sign them as a matter of course, but how often do you actually consider what it means to waive subrogation? In this blog, we’ll discuss what subrogation is and why it’s usually a good idea to waive it. What is Subrogation? Legally speaking, subrogation is a concept that allows an insurance company that has paid a loss [...]
At the annual meeting, Nichole Bogen was elected Vice Chair of the Nebraska State Bar Association’s Labor Relations and Employment Law Section. This is her second year of serving on the executive committee. The section is comprised of lawyers who practice or have an interest in labor relations and employment law. The section provides a forum for the discussion and development of substantive and procedural laws relating to the field [...]
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 with your construction projects.
Craig Martin, a partner at Lamson Dugan & Murray LLP, presented at Metro Omaha Builders Association in October and the Nebraska Chapter of the Construction Specifications Institute in November. Mr. Martin spoke on the Anatomy of a Construction Lawsuit at the MOBA event and on Construction Contract Clauses at the CSI Nebraska event. Both events were held in Omaha, Nebraska. Mr. Martin focuses his practice on the construction industry, representing [...]
There are fundamental differences between insurance and surety bonds and knowing the difference will help you avoid making mistakes, should claims arise. This blog will discuss the differences between insurance and surety bonds. Insurance An insurance policy is a two party contract between an insurer and the insured. The policy is intended to protect the insured. The cost of insurance is calculated by the insurer based on how many claims [...]
Kyle Wallor, a Partner at Lamson Dugan & Murray LLP, was one of 13 presenters at the 2019 National Association of Railroad Trial Counsel fall meeting . NARTC is an organization of railroad trial attorneys across the United States and Canada. NARTC provides a forum in educating, training, and assisting trial lawyers who represent railroads in litigation. Mr. Wallor’s presentation, “Wait: What Do You Mean You Got Caught? Surveillance – [...]
Sounds good.....But I'm still going to have file that lien A lien for those who supply or apply fertilizer or agricultural chemicals for the production of crops. Over the past couple years, we have had to assist several crop input suppliers and appliers who have relied on their customer's promise to pay their bill after harvest, only for the customer to run into a financial problem and not [...]
Recently, I have had a number of conversations with contractors that are worried about getting paid on a project. Invariably, these contractors want to know what they can do to get what they are owed. Rarely is there an easy button to force these funds out of the owner or upstream contractor’s hands. And, a number of factors will figure into the analysis. A few things I would want to [...]
LDM partners Cathy Trent-Vilim and Adam Feeney published a featured article in the November/December 2019, The Nebraska Lawyer, Vol 22 Issue 6. The article relates to the Nebraska Supreme Court's clarification of decades of confusing case law related to prejudgment interest. Link to the article: https://cdn.ymaws.com/www.nebar.com/resource/resmgr/nebraskalawyer_2017plus/2019/novemberdecember/TNL-1119c.pdf Nebraska Supreme Court Shows the Weyh forward on Recovery of Prejudgment Interest Earlier this year, in Weyh v. Gottsch, the Nebraska Supreme Court clarified [...]
OSHA’s fiscal year ended earlier this fall and OSHA published its annual Top Ten violations for 2019. It is striking that the most common violations for this year are the same from last year and the Top five have not changed for 5 years. Because the Top 10 represent the most frequently cited standards, they are a good place to start for employers to identify hazards in their workplace. Here is [...]
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 [...]
Construction Law Join us Wednesday October 30, 2019 at 11:30 a.m. for a discussion of Construction Liens and Lien Waivers: Protecting Your Right to Payment During this presentation, we will discuss: Steps to ensure that you are preparing and filing your liens correctly What to review for before you sign a lien waiver We look forward to seeing you on October 30th at 11:30 a.m. at the offices of Lamson [...]
A recent case out of Maryland ruled that a subcontractor must pay a general contractor $2,500,000 for construction defects arising out of a 2004 project. Now, the case did take three years to wind its way through the courts, but would you be ready to defend even a 12-year-old claim? Would you have kept the contract and documents related to the project? Background This project involved the construction of a [...]
Partner Adam Feeney was elected Treasurer to the NSBA’s Alternative Dispute Resolution Section. The section studies the different alternatives for dispute resolution and the circumstances in which they are likely to work. The section uses both recognized concepts of due process and the efficient administration of justice, and make recommendations with respect to the promotion and implementation of various means of dispute resolution to the Executive Council and the House [...]
I was recently speaking with a member of the Nebraska Court of Appeals . During the discussion, the judge lamented how surprised he/she is that so few Nebraska attorneys file reply briefs. My jaw practically hit the floor. I simply could not believe attorneys forego a reply brief. Think about a reply brief the same way you would a rebuttal closing argument. As trial counsel, could you ever imagine yourself [...]
Lamson Dugan & Murray is pleased to announce that Drew Engle, Ellen Geisler, Cameron Riecke, and Patrick Wier have joined the firm. Drew Engle is an associate attorney in the litigation department at Lamson Dugan & Murray. Mr. Engle graduated cum laude from Creighton University School of Law with a concentration in litigation. Mr. Engle was a member of the Creighton Law Review and served on the Executive Board of the Law Review [...]
The Department of Labor received more than 300,000 comments on it Proposed Apprenticeship Rule. The vast majority of those comments were from the construction industry, and not surprisingly the trade unions and ABC and AGC are split on the issue. The Department of Labor issued its proposed regulations on June 25. The proposed rules would establish a process through which industry groups could create industry related apprenticeship programs. The DOL’s [...]
This post is provided by one of Lamson Dugan & Murray's Employment Law Attorneys, Eric Tiritilli. The U.S. Department of Labor (DOL) finally issued the overtime regulations, updating the salary thresholds for the white-collar exemptions, including executive, administrative, professional exemptions, and the highly compensated employee exemption under the Fair Labor Standards Act (FLSA). As you may recall, the DOL originally tried to increase the salary threshold under the Obama administration, [...]
A pivot is only as good water allowed to run through it If you own farmland in a Natural Resource District in the state of Nebraska, then the case of Prokop v. Lower Loup Nat. Res. Dist., should give you pause. Robert Prokop has operated a farm since 1962 in Nance County which falls within the regulatory territory of the Lower Loup Natural Resource District (LLNRD) of central [...]
Construction Law Join us Wednesday October 30, 2019 at 11:30 a.m. for a discussion of Construction Liens and Lien Waivers: Protecting Your Right to Payment During this presentation, we will discuss: Steps to ensure that you are preparing and filing your liens correctly What to review for before you sign a lien waiver We look forward to seeing you on October 30th at 11:30 a.m. at the offices of Lamson [...]
The highway-spanning pedestrian overpass that links Creighton University with the student-dominated Atlas apartments will be officially named Tuesday in honor of two brothers whose mark can be seen at Creighton and across Omaha. As it so happens, one of those siblings already had a history with the bridge, and that tie dates back more than 40 years — before the almost 600-foot span was even built. In recognition of C.E. “Carr” [...]
Last month a New Jersey contractor filed a lawsuit alleging that the requirement of a project labor agreement on the Scudder Falls Bridge cost the taxpayers of New Jersey and Pennsylvania over $70 million. If the contractor prevails, it could be a major blow to the use of PLAs by government entities. Project labor agreements are often required on public works project to ensure that union contractors are selected for [...]
A lien for the supplier of petroleum products used for crop production. As a teenager did anybody else sneak gas from the farm barrel to fuel a Friday or Saturday night out? Anybody? No? Yeah, me neither. In Nebraska, that fuel may have a lien against it if the supplier filed a financing statement within 6 months of furnishing the fuel or lubricants. The financing statement must contain the [...]
LDM Attorney Patrick Wier was highlighed in the Fall 2019, Creighton Lawyer Magazine. The article, Spurred On, discusses a brother's challenge that eventually leads to a law degree for a cowboy-at-heart. Find the full story here: https://viewer.zmags.com/publication/d97c97ea#/d97c97ea/8
Craig Martin, a Partner at Lamson Dugan & Murray, was a presenter at the 2019 Real Estate Institute. He discussed how contract clauses can, and often do, create problems on construction projects. The presentation reviewed these clauses, the recent Nebraska Supreme Court case U.S. Pipeline v. Northern Natural Gas Co., 330 Neb. 444 (2019), and the court’s interpretation of contract provisions and conduct that can result in a waiver. The [...]
How often do you review the payment terms of a contract with an eye toward whether you are waiving lien rights under that contract? This is something you should consider if your contract contains a pay-if-paid clause. I am often times asked about the difference between a pay-when-paid and pay-if-paid clause. The real difference is that a pay-when-paid clause simply allows a contractor a reasonable amount of time by which [...]
The short answer is maybe. Nebraska courts have long held that a general contractor can be held liable for a subcontractor’s employee’s injury, but only if the general contractor exercises significant control over both the worksite and the subcontractor. The question becomes whether the general contractor’s conduct demonstrates this control. A general contractor that retains control over a subcontractor’s work has a duty to use reasonable care to prevent injuries [...]
Today, the U.S. District Court for the District of Nebraska dismissed a railroad conductor’s retaliation claim. The conductor had reported an injury that he claimed stemmed from a specific incident occurring about 18-months before his report to his employer, the railroad. The railroad disciplined the conductor for late reporting and other violations of the General Code of Operating Rules. The conductor claimed he was retaliated against for reporting a work-related [...]
It's not often you can say that musicians and ballerinas helped clarify the rules around access to a job-site or workplace. But, it happened earlier this month. The National Labor Relations Board (“NLRB”) recently clarified that a property owner could exclude off-duty contractor employees from handing out leaflets on its property unless the off-duty employees worked regularly and exclusively on the property and there was no other reasonable alternative means [...]
On August 26th, 2019, Partner Cathy Trent-Vilim served as moderator at the Opening of Term Seminar & Celebration event presented by the NSBA Appellate Practice Section. The event was held at the Nebraska State Capitol Law Library. The presenters included Hon. Jonathan Papik, Hon. John Freudenberg, Hon. William Cassel and Hon. Michael Heavican. The seminar was targeted to lawyers who practice appellate law, with a focus on the Nebraska Supreme [...]
As we have discussed in other blog posts, filing a construction lien on time is critical to preserving your claim. If you file a construction lien in Nebraska outside of the 120-day window, your lien will be invalid. This past week, we filed a construction lien electronically in Douglas County. This means that we submitted the lien on-line and waited for a Douglas County employee to review the lien and [...]
No-damage-for-delay Clauses are commonplace in construction contracts. But, have you ever read one and wondered if they are enforceable? Courts across the country have consistently enforced them and these clauses will severely limit your ability to recover damages caused by delays, even if the delays were not caused by you. What is a No Damage for Delay Clause A no-damage-for-delay clause is just that, a clause that explains that if [...]
Lamson Dugan & Murray is proud to announce that 13 of their attorneys will be recognized in the 26th 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. Bet-the-Company Litigation • William M. Lamson, Jr Commercial Litigation • Brian J. Brislen • Jason W. Grams • William M. Lamson, Jr. • Mark [...]
Partner Mark Novotny was elected to the NSBA's Executive Council, District 2. The Nebraska State Bar Association works for Nebraska lawyers to help them achieve the highest standards of competence, ethics and professionalism and to protect and promote the administration of and access to justice. The Executive Council consists of one delegate elected from each of Nebraska's six Supreme Court districts, a chair and chair-elect elected by the House of Delegates, [...]
The Pension Benefit Guaranty Corporation, the federal agency that oversees multiemployer benefit plans, issued its annual Projection Report earlier this month. And, the outlook is bleak. The agency is estimating that its insurance program will be insolvent in 2025 unless Congress provides substantial funding. The PBGC oversees multiemployer plans that cover approximately 10 million employees. Of the multiemployer plans covered by the PBGC, about 58% are unionized, while the remaining [...]
Andrew J. Huber, previously of Dunmire, Fisher, Hastings & Pauley, has joined the law firm of Lamson Dugan & Murray as an attorney effective July 15th, 2019. Andrew will split his time practicing in Omaha, NE and Hastings, NE, as well as the surrounding Tri-City area. Andrew's practice focuses on general business, real estate, estate planning, corporate, trust administration and landlord-tenant law.
Construction contracts often contain liquidated damage provisions, requiring a contractor to pay a set amount for each day the project is delayed. But, as the Nebraska Supreme Court recently ruled, in U.S. Pipeline v Northern Natural Gas, an owner can waive liquidated damages where its actions induce the belief that the owner intended to waive liquidated damages. In this case, the parties agreed that the work would be done in [...]
As the project is winding down, it is crucial that you include all remaining claims in your final pay application. A recent Nebraska Court of Appeals decision drove this point home when it ruled that a contractor was not entitled to additional compensation it requested after submitting its final pay application. In ARR Roofing, LLC v. Nebraska Furniture Mart, Inc., ARR Roofing was hired to replace the roof and decking [...]
