When you review a construction contract, are you also reviewing the description of the Work that you’ll be doing? I mean, are you really looking at that section to make sure that it accurately describes what you will be doing, and perhaps more importantly, it identifies Work that you will not be doing? I recommend that you spend a few extra minutes with your contracts to make sure the Work [...]
Congratulations to Partner Jason Grams on achieving a Martindale-Hubbell AV Preeminent Peer Review Rating. This is awarded to only those lawyers with the highest ethical standards and professional ability. Only approximately 10% of attorneys have achieved this prestigious honor! Jason joins 12 other lawyers of LDM achieving this honor. For more information on Martindale-Hubbell Peer Review Ratings, visit their Ratings and Reviews page.
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 [...]
This is a continuation of the 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 how long your lien will last once it is filed. The Nebraska Construction Lien Act provides that your lien will [...]
Congratulations to LDM’s commercial and appellate litigators Brian Brislen, Adam Feeney, Dan Chesire and Cathy Trent-Vilim for obtaining an affirmance of a $1.2 M judgment for LDM’s client. Nebraska Supreme Court announced the ruling on June 7, 2019. In addition to the $1.2 M judgment, the trial court awarded prejudgment interest of approximately $900,000. In a 38 page opinion, on an issue of first impression, the Supreme Court adopted LDM’s [...]
Daniel C. Pauley, previously of Dunmire, Fisher, Hastings & Pauley, has joined the law firm of Lamson, Dugan & Murray as a partner effective June 1st, 2019. Daniel will split his time practicing in Omaha, NE and Hastings, NE, as well as the surrounding Tri-City area. Daniel’s practice focuses on general business, real estate, commercial, corporate, estate planning and probate law. Daniel and the Lamson, Dugan & Murray firm plan [...]
Immigration and Customs Enforcement (ICE) is responsible for enforcing U.S. immigration laws, including auditing how employers are completing I-9 forms. ICE conducted nearly 6,000 I-9 audits in 2018, nearly five times more than in 2017. It’s time you get ready for an ICE audit by auditing your own I-9 policies and procedures. Below are some proactive steps to prepare for an ICE audit. Confirm you have I-9s for Every Employee [...]
For some time, Nebraska case law on prejudgment interest has been a quagmire for both attorneys and litigants. Answers to whether, and under what circumstances, litigants could recover prejudgment interest on unliquidated breach-of-contract claims varied. Some cases said certain procedural processes had to be satisfied; others left the question open. It was also unclear how two statutes that both address prejudgment interest -- Neb. Rev. Stat. §§ 45-103.02 and [...]
A surprising Nebraska Supreme Court opinion has spurred legislative changes to Nebraska's tax sale laws. Partner Katie French has summarized Nebraska's tax certificate law, the shocking case of Wisner v. Vandelay, and the legislature's necessary but little-too-late response. TAX CERTIFICATE LAW: In the case of delinquent real estate taxes, the county treasurer may sell real property for taxes. The treasurer provides the purchaser a tax certificate that represents a transfer [...]
Ever get that sinking feeling on a public project that you might not get paid? The good news is that in Nebraska, general contractors working on a project in excess of $15,000, must file a bond on the project. This blog will address how to make a proper claim on the bond. The process for making a bond claim is found in section 52-118.01 Neb.Rev.Stat. The process and time frame [...]
When a contractor receives a delay claim from a subcontractor, it’s important to pass on the claim to the owner or the contractor could be liable for the subcontractor’s entire claim. A recent decision out of New York underscores the importance of passing subcontractor claims to the owner. In the case Rad and D’Aprile, Inc.v Ariel Construction Corp., the subcontractor, Rad, made a claim for delay damages to the general [...]
Cannabis laws are popping up around the country and are impacting the way employers select employees. Take Illinois for example—it is now legal to possess and consume cannabis in Illinois, but employers can still maintain their zero tolerance policies, with certain significant limitations. Zero Tolerance Employers may still prohibit employees from using cannabis while they are working, but employers can no longer decline to hire, discharge, or take other adverse [...]
Construction contracts often require contractors to receive and hold payments in trust for the benefit of paying labor and materials furnished on a project. The purpose of the trust is to protect downstream contractors and suppliers from the risk of nonpayment of their claims against a financially distressed contractor. Trust Contract Provision A typical trust provision provides: All sums received by Contractor under this Contract are received by Contractor in [...]
A lien for a licensed veterinarian against any livestock cared for or treated. It's hard to argue that anybody who routinely utilizes shoulder length latex gloves should not have priority to payment for their services. So indisputable is the vet's right to payment that the lien procedure is probably the most straightforward and simple ag lien to follow. A vet lien is created by filing a UCC financing statement within [...]
Construction contracts have often included arbitration clauses and they can serve a good purpose of expediting resolution. But, what happens if the arbitrator gets it wrong? Your options are limited, and as one court stated: the parties bargained for an arbitrator’s decision; if the arbitrator got it wrong, then that was part of the bargain A recent case out of the Eight Circuit Court of Appeals (covering Arkansas, Iowa, Minnesota, [...]
Construction contracts typically require a subordinate contractor, either the general contractor subordinate to the owner or subcontractor subordinate to the general contractor, to list the upstream party as an additional insured and require the subordinate party to indemnify the upstream party for any claims or damages on the project. The goal of these two provisions is to shift the risk of liability for injuries sustained by a subordinate party's employees [...]
Ouch. That’s what a New York judge called a contract to remediate petroleum contamination at 47 gas stations. Sometimes, it’s hard to believe the contracts that get signed. In this case, Environmental Risk hired subcontractor Science Applications to remediate petroleum contamination at 47 gas stations. Environmental Risk first required its subcontractor to sign a Professional Services Master Agreement. Environmental Risk then required its subcontractor to sign three separate, but basically identical, [...]
Last month, the United States Supreme Court heard oral argument in Iancu v. Brunetti, 18-302, a fascinating case examining the intersection of the First Amendment and federal trademark law. At issue is whether Section 2(a) of the Lanham Act’s prohibition on the federal registration of “immoral” or “scandalous” trademarks is facially unconstitutional under the First Amendment. To understand the implications for Iancu, a little background is necessary. First, trademarks. Trademarks [...]
We are very excited to announce that Lamson Dugan & Murray has acquired the Sattler & Bogen law firm in Lincoln. Partner Nichole Bogen, Attorney Tyler Spahn, and Legal Assistant Leticia Atkinson have joined LDM. This office will remain in Lincoln, Nebraska under the Lamson Dugan & Murray name and located at 701 P Street, Suite 301, The Creamery Building in Lincoln. Please join us in welcoming our newest location [...]
What if you came across dinosaur bones on the work site like they did on a project in Denver, Colorado? Would you get extra time to complete the work? What does the construction contract allow? Let’s play out that scenario. You reach out to your local construction lawyer and inform him that your project has been delayed because you came across dinosaur bones. After he stops giggling about the situation, [...]
When you are involved in construction litigation, you have battles on several fronts, including those against subcontractors, owners, insurers and the court. Shoring up your defenses on each of these fronts is imperative, or you may lose the battle or, worse yet, the war. An opinion out of the Eleventh Circuit Court of Appeals (overseeing federal courts in Alabama, Florida and Georgia) Carithers v. Mid-Continent Casualty Company, illustrates the various [...]
Employers in the construction industry have long known the value of apprentice programs, such as those offered by Associated Builders and Contractors. But, did you know that having or participating in a qualified apprentice program may become a requirement to bid on government projects? If organized labor gets it way through the so-called Responsible Contractor Reforms, it could happen. Supplemental Conditions, a construction blog worth reading, recently posted an article on [...]
A recent article in ENR described the setbacks associated with a public rail project. There are problems with the schedule, concrete quality, including precast girders , panels and rail ties, and allegations of fraud. In a nutshell--a mess. But, I wonder if there are contract provisions that address these problems. Below are some problems on the project and my thoughts on contract provisions. Schedule. The article mentions that the general [...]
- A lien for the owner or operator of any threshing machine or combine against the grain or seed harvested or processed. Neb. Rev. Stat. Sec. 52-501. A combine with a plugged feeder house is extremely frustrating and basically useless until the plug is removed. Similarly, liens that are plugged with filing or notice problems are frustrating and potentially unenforceable. Even a straightforward thresher's lien can contain [...]
Stacy L. Morris of Lamson Dugan & Murray, chair of the Omaha Bar Association Memorial Committee, gives the call to order at the OBA’s annual Memorial Day Program in the legislative chamber of the Omaha-Douglas Civic Center on May 10, 2019. (Photo by Scott Stewart) Read story here: https://www.omahadailyrecord.com/
As this year’s construction projects are in full swing, it’s a good time to review your rights to payment. Since 2014, the Prompt Pay Act has been a tremendous resource for contractors to recover retainage and interest from upstream contractors and owners for failing to timely pay on a project. Here are a few highlights from the Prompt Pay Act. Limit on Retainage. Retainage may not exceed 10%. And, when [...]
If you or your construction company have ever been sued, you know it can be a stressful time. You have deadlines, you have subcontractors clamoring to get paid or defended, and it’s a generally awful situation. But, keep your mind on the prize--to make sure you have insurance coverage that will provide a defense to these claims. The most important step to ensure you have coverage is to tender your [...]
Construction material costs are rising, at least that’s what AGC, ABC, ACEC, ENR and the government are saying. So, let’s assume that its true—construction material costs are rising. What can you, as a general contractor or subcontractor do about it? Not surprisingly, it all comes down to your contract and whether you included a cost escalation clause. What is a Cost Escalation Clause? These clauses are pretty self-explanatory in [...]
While this is not typically a topic of discussion on this construction blog, two recent construction related lawsuits filed in Nebraska highlight the importance of making sure your key employees do not walk away with your projects and employees. We all know the situation. A long-term, faithful employee gets the itch to head out on his own or take another job for a few more dollars. Maybe you wish the [...]
Back in 2014, I posted a blog about the problems contractors were having digging the tunnel for Route 99 in Seattle. Bertha, the boring machine, hit a pipe and some rocks and got stuck, causing two years of delay. Well, that problematic situation, now a $624 million lawsuit, has wound its way through the courts and the Seattle Tunnel Partners (“STP”) is blaming the slow down on the pipe they [...]
Daniel Hassing and Anne Marie O’Brien recently won a motion for summary judgment in the Southern District of Texas. This success came in an action under the Federal Employer’s Liability Act, a federal statute granting a cause of action to railroaders working in furtherance of interstate commerce. The case involved a widow who alleged that her late husband developed colon cancer as a result of occupational exposures while working for [...]
Congratulations to Partner John Walker, who was recently elected to the Board of the Regency HOA. John has long represented both HOAs, and homeowners in disputes with their HOAs, allowing him to bring unique perspective to his newly elected position. Partner John M. Walker
Let’s face it, some projects just don’t go well and everyone knows there will be a fight over payment at some point. If there were only some way to avoid costly litigation or arbitration. Or is there? You could include a mandatory mediation provision in your contract to require the parties try to resolve the matter before litigation or arbitration is initiated. What is Mediation? Mediation is not simply requiring [...]
Thank you to all of our Administrative Professionals for your hard work, tireless effort, and every day enthusiasm. Your work is key to our success! Vonnie Lorenson, Cassandra Kuhr, Jan Grisinger, Jeanna Lichtenberg, Amy Kluza, Natale Sipple, Kim Wike, Kathy Poskevich, Laura Cejka, Kelly Busboom, Christie Donnermeyer, Debra Tweed, Michele Rambousek, Judy Ray, Connie Harrold, Patty Morgan, Shelli Eden, Tracey Shughart, Doris Crayton, Kris Flott, Kate Fenton, Evelyn Owens, Peg [...]
On large construction projects, with several layers of contractors, there is the risk of conflicting contract provisions. For example, the owner’s architect may use an AIA contract, the general contractor may use its own contract with the subcontractors, and some subcontractors may use their own contract with subsubcontractors. With so many contracts, there are almost certainly conflicting provisions, be it relating to indemnity, insurance and waivers of damages. It is [...]
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, [...]
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 [...]
LDM attorney Mike Storey recently won a defense judgement in a jury trial for an underinsured motorist claim. The plaintiff claimed injuries related to a motor vehicle accident and had already received a total of $105,000.00 in liability payments from the other driver’s insurance policy. At trial, plaintiff sought a total recovery of $289,000.00 for her alleged injuries. After a 3-day trial in the District Court of Douglas County, where [...]
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 [...]
LDM is pleased to announce that partner Bill Settles has been certified as a member of Lawyers of Distinction for 2019. Lawyers of Distinction is recognized as the fastest growing community of distinguished lawyers in the United States. Lawyers of Distinction offers membership to less than 10% of attorneys in any given state. Membership is based upon peer recommendations and an objective analysis of an attorney’s qualifications, reputation, experience, and [...]
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 [...]
Good work. Now make sure to hold onto the tractor until you get paid - A lien for the person who makes, alters, repairs, or enhances the value of machinery, farm tools or implements, or shoes horses or mules. Why the lien is called an Artisan's Lien is beyond me. I don't remember anybody who would be covered by this lien calling themselves an artisan. Maybe I need [...]
Please join us for an information seminar focusing on sexual harassment in the workplace. #Metoo written on wooden cubes
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, [...]
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 ____ [...]
Mark Novotny and Sarah Dempsey recently won a motion for summary judgment, obtaining the dismissal of a medical malpractice case filed against an orthopedic surgeon. The case arose out of a knee replacement surgery. The plaintiff alleged that the nurses from the hospital and the defendant surgeon had negligently left a piece of sponge behind in the knee following surgery. Mr. Novotny and Ms. Dempsey successfully argued that the claim [...]
LDM partner Bill Settles recently won a unanimous defense verdict in a medical malpractice case against an orthopedic surgeon in Sidney, Nebraska. The patient claimed she suffered a pressure ulcer on her heel because the surgeon misapplied a posterior splint following ankle surgery. After Mr. Settles’ presentation, the jury only took an hour to reject this claim. Interestingly, the trial was disrupted by the worst blizzard in Sidney in the [...]
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 [...]
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 [...]
Lamson, Dugan & Murray, LLP is proud to announce a significant settlement of a long-pending industrial product defect case. Representing their Fortune 500 client, LDM attorneys Bill Lamson, Jason Grams, and Mike Storey brought suit against a supplier and, after over three years of litigation, negotiated payments to LDM’s client of $50 million and a resumption of the parties’ business relationship. The case involved over three million units of products [...]
