I’d like to say that the answer is clearly yes, but that’s rarely the case with construction contracts. Ultimately, it will come down to the facts of your situation and whether the construction contract specifically allows you to pull off the job. Not Getting Paid Not getting paid is probably the most popular reason contractors terminate a construction contract. The difficulty arises when we look closely at the circumstances leading [...]
The Biden Administration issued another executive order, this one focusing on the application and enforcement of the Buy America Act. As the name indicates, the Buy America Act is intended to increase the amount of American goods used on and in government contracts. President Biden’s executive order focuses on enforcement and the administration of the Act. The most significant change created by the executive order is to create a Made [...]
The Nebraska Supreme Court recently appointed partner Michael Storey as the Chairperson of the Nebraska Disciplinary Review Board. Members of the Nebraska Disciplinary Review Board resolve appeals arising from disciplinary decisions made by the Nebraska Committee on Inquiry against Nebraska lawyers. Mr. Storey will serve in that role for a two year term.
Lamson Dugan & Murray LLP announces the opening of a new office in Des Moines, Iowa. The opening of the Iowa office expands LDM’s geographic offering and further strengthens its existing Midwest offices. Expanding into Iowa will enhance the depth and breadth of services available to clients among our litigation and corporate practices. LDM also has offices in Omaha, NE and Lincoln, NE. Leading the Des Moines office will be [...]
President Biden recently issued an Executive Order (copy here) requiring OSHA to issue “science-based guidance” to help keep workers safe from COVID-19 exposure. The Executive Order does not create immediate changes, but calls for quick action by OSHA to update its guidance. The Executive Order requires OSHA to: issue, within two weeks, revised guidance to employers on workplace safety during the COVID-19 pandemic; consider whether any emergency temporary standards on [...]
In a multi-phase litigation, the United States Court of Federal Claims in Washington, D.C. recently entered its trial order against the United States Army Corps of Engineers. The December 14, 2020 order found the plaintiff landowners were collectively entitled to damages for certain losses. Back in 2018, the Court issued its order in the Phase I trial of a “takings” action under the Fifth Amendment: The government’s physical invasion—via [...]
Partner Kyle Wallor was nominated for the Judicial Nominating Commission for the Nebraska Supreme Court in the 4th district of Nebraska. Congratulations Kyle!
Partner Dan Chesire was nominated for the Judicial Nominating Commission for the Douglas County Court and DC District Court for 4 year terms in the 4th district of Nebraska. This is the largest district in our state. Congratulations Dan!
It seems that more and more general contractors are using pay-if-paid clauses in their construction contracts. Pay-if-paid clauses are some of the most controversial and heavily negotiated clause in construction contracts. This article will explain what pay-if-paid clause is and provides some guidance on how to negotiate around these difficult clauses. A pay-if-paid clause, if properly drafted, pushes the risk of non-payment from the general contractor to you. The clause [...]
Partner Adam Feeney was elected an alternate member to the Judicial Nominating Commission—Court of Appeals—Fifth District. Congratulations Adam!
I’d like to say that the answer is clearly yes, but that’s rarely the case with construction contracts. Ultimately, it will come down to the facts of your situation and whether the construction contract specifically allows you to pull off the job. Not Getting Paid Not getting paid is probably the most popular reason contractors terminate a construction contract. The difficulty arises when we look closely at the circumstances leading [...]
Construction contracts can take on many shapes and sizes and there are several important provisions that you should review. But, the most important, in my mind, is the scope of work to be provided. Preventing Costly Overruns Ideally, the scope of work will detail, and limit, the work that is to be provided for the money that the owner is obligated to pay. We recommend that the scope of work [...]
Another year is drawing to a close and we want to thank all of our construction clients with whom we have had the pleasure of working this past year. We really do appreciate the opportunity to help you with your business operations. We look forward to working with you in 2021. Happy Holidays
Today's post is by Eric Tiritilli, one of our Employment Law specialists. Currently, there is no formal guidance from federal agencies regarding whether an employer may require an employee to be vaccinated for COVID-19. But, the EEOC has previously allowed mandatory vaccinations in the context of flu. Given that the EEOC considers the COVID-19 pandemic a “direct threat” to health in the workplace, it is likely that it would similarly [...]
On an issue of first impression, Attorneys Sarah Dempsey and Patrick Vipond recently obtained a dismissal of a physician in a medical malpractice action in Iowa state court. New rules in Iowa require a plaintiff to file a certificate of merit signed by an expert witness who is willing to testify that the defendant physician breached the standard of care. The Iowa rules require that this certificate be signed by [...]
Wait. Did you say Hemp? Nebraska has amended the definition of “farm products” for statutes that govern security interests on farm products. For the first time, the list of farm products now includes goats and hemp. Really, goats are just now being added? The Secretary of State has published a revised Nebraska Effective Financing Statement (Form EFS-1) that includes goats and hemp, which is in effect now. Effective [...]
Around this time last year, the 8th Circuit Court of Appeals found that an arbitrator did not exceed his authority when a dispute over the interpretation of a crop insurance policy provision arose after the arbitration proceedings. Balvin v. Rain and Haill, LLC. Why is this important? It is important because in 2015, the Federal Crop Insurance Corporation ("FCIC") issued Final Agency Determination ("FAD") 230* which stated the following: A [...]
Just because an employee gets hurt on the job does not mean you are facing an OSHA penalty. Employers have a defense to an OSHA citation when the violation of a safety rule was due to unpreventable employee misconduct. However, proving this defense requires substantial planning, well before an incident or investigation. Unpreventable Employee Misconduct Defense OSHA requires that an employer do everything reasonably within its power to ensure that [...]
Contractors sometime believe 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 file [...]
Updates in red Due to the global pandemic of COVID-19, a public health emergency has been declared in the United States. Experts say that one of the most effective ways to protect against this disease is to limit the risk of exposure. This has prompted the “Stay at Home” movement for many Americans, but many judicial matters still need prompt attention during this time. Varying regulations have been put into [...]
Construction contracts often contain an arbitration or litigation provision. While each forum has its advantages, a question often times overlooked is whether an arbitration provision is enforceable. Litigation is the Default Litigation is the default method of dispute resolution. This is not to say that litigation is the best way to resolve a case. But unless the contract contains an enforceable arbitration agreement, the parties will have to take their [...]
Ask anybody who has attempted to overturn an arbitrator's award in a crop insurance arbitration; the struggle is real even when the arbitrator is dead wrong. Crop insurance arbitration is held to the standards of the Federal Arbitration Act (the "Act"). The Act strictly prohibits overturning an arbitration award unless "the arbitrators exceeded their powers, or so imperfectly executed them that a mutual final, and definite award upon the subject [...]
You’ve probably heard a story about a business owner that cashed a “paid-in-full” check and waived the rest of her claim. But, can this really happen? A recent case out of Mississippi reminds us that it can. In this case, a contractor was hired to build a municipal water system. Disputes arose and the contractor threatened to file suit. The municipality then issued a check to the contractor marked “Paid [...]
The Nebraska State Bar Association would like to recognize Senator E. Benjamin Nelson for his adherence to the highest principles and traditions of the legal profession and for his service to the public and to the profession through his faithful performance of his duties as a Nebraska lawyer for 50 years. Congratulations Senator Nelson! Link to Nebraska Lawyer: https://cdn.ymaws.com/www.nebar.com/resource/resmgr/annual_meeting/pdf/50-Year_MemberSpotlight.pdf
Subcontractors are asked to sign lien waivers and releases nearly every time they submit a pay application. But, it may be worth your time to review the language and identify unpaid work before you submit the waiver. A recent case out of North Carolina drives home this point. Gamewell Mech, LLC v. Lend Lease (US) Construction, Inc. involved a breach of construction contract between the subcontractor and general contractor. The [...]
All – Today the Governor announced a second round of grant money for certain business. Beginning on October 21, 2020 certain small businesses who did not receive a grant in the first round of grants are eligible to apply for the second round of funding. The awards will not exceed $12,000 and are first come, first served. There are other grants available for charitable organizations, centers of worship, livestock producers, [...]
LDM Partner and Nebraska Bar Association Executive Committee member Mark Novotny was selected by the NSBA to serve on the “COVID 19 and the Courts Response Committee.” This group will be an administrative committee under the Nebraska Supreme Court to evaluate whether the measures put in place by Nebraska Appellate Courts, Trial Courts and Probation allowed their mission-essential functions to carry on during the pandemic and if the Judicial Branch’s [...]
On September 22, 2020, President Trump issued an executive order entitled Combatting Race and Sex Stereotyping. The Executive Order requires contractors to review the anti-harassment training they provide to their employees and include additional language in their subcontracts. The Purpose of the Executive Order The express purpose of the Executive Order is to combat “misrepresentations of our country’s history and its role in the world.” According to the EO, these [...]
Lamson Dugan & Murray LLP is proud to announce that 13 of their attorneys will be recognized in the 27th 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. Congratulations to the following partners! Bet-the-Company Litigation • William M. Lamson, Jr Closely Held Companies and Family Businesses Law • Daniel J. Waters [...]
Hail damage to corn field near Hastings, Nebraska Every year farmers face multiple weather events that can instantly undo the hard work of planting and maintaining a crop. Widespread drought and flooding can wipe out entire crops across a large area. On the other hand, hail and wind storm damage may be extremely variable. Notwithstanding the recent derecho event, a hail or wind storm might affect one farmer [...]
You know the situation, the project manager or superintendent just cornered you on the job site and told you that he needs some extra work. But, what you do next may very well make the difference on whether you get paid for that extra work. Document the Conversation The first thing you should do is confirm the conversation in an e-mail to the project superintendent or whomever is your point [...]
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 [...]
Construction projects around the country are experiencing delays. These delays can lead to extended general conditions, idle labor and equipment costs, material cost escalation, and de-mobilization and re-mobilization costs. But, how do you recover those damages? Notice The first step to recovering delay damages is to provide notice. But, your notice has to be timely and it has to follow the requirements of the contract. So, review the contract and [...]
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 [...]
Updates in red Due to the global pandemic of COVID-19, a public health emergency has been declared in the United States. Experts say that one of the most effective ways to protect against this disease is to limit the risk of exposure. This has prompted the “Stay at Home” movement for many Americans, but many judicial matters still need prompt attention during this time. Varying regulations have been put into [...]
How often have you read that the terms of the prime contract are incorporated into the subcontract? If you read your subcontracts, you’ve probably seen that language in every contract over the last 10 years. But, what does that mean? It means you are bound by the terms of the prime contract, even if you haven’t seen it. Contract Language Most construction subcontracts incorporate the prime or upstream contact. A [...]
Much as the economics of a construction project must make sense, the same is true when you are considering litigation. The costs associated with litigation must be considered in light of the potential recovery. A recent decision from the Nebraska Court of Appeals drove this point home. The case, Scheichinger v Swain Construction, involved the sale of a skid loader and a claim that Swain Construction misrepresented the number of [...]
Throughout the summer we received several requests to review production contracts between livestock producers and meat packers. The requests were made due to concerns that one party was not living up to the terms of the agreement. Consequently, it came as no surprise when one of the larger hog producers, Maxwell Foods, filed suit against one of the largest packers, Smithfield Foods, for breach of contract. The suit is likely [...]
Upcoming Webinar! Setting up and operating a small business is no easy challenge. Whether you are just getting started, flying solo or working with others, there are considerations that you should be aware of for your small business. Join me as I sit down with Catherine French, Estate Planning Attorney at Lamson Dugan & Murray, and Jessica Thompson, CPA, CFP®, MPAcc, at Verdant Accounting as we uncover all angles of [...]
Updates in red Due to the global pandemic of COVID-19, a public health emergency has been declared in the United States. Experts say that one of the most effective ways to protect against this disease is to limit the risk of exposure. This has prompted the “Stay at Home” movement for many Americans, but many judicial matters still need prompt attention during this time. Varying regulations have been put into [...]
Due to the global pandemic of COVID-19, a public health emergency has been declared in the United States. Experts say that one of the most effective ways to protect against this disease is to limit the risk of exposure. This has prompted the “Stay at Home” movement for many Americans, but many judicial matters still need prompt attention during this time. Varying regulations have been put into place for the [...]
On August 11, 2020 the Omaha City Council passed an emergency ordinance mandating masks when indoors at a premises open to the general public unless an individual maintains a minimum of six feet of separation or social distance at all times from anyone who is not a member of the individual’s household. It will be in place until September 15, 2020. The definition of premises open to the general public [...]
As you all know, you must complete an I-9 for all new hires. And, as of last May, you should be using the most recent I-9 form. The U.S. Department of Homeland Security’s Immigration Customs and Enforcement (ICE) takes I-9’s very seriously and while I-9s are not difficult to complete, the penalties for not having them completed properly can be significant. If ICE decides to audit you, you will first [...]
The Department of Transportation’s Federal Highway Administration (FHWA) suspended FIGG Bridge Engineers, Inc. from participating in any federally funded projects and has proposed a 10-year debarment, which would bar FIGG from performing work on any federally funded or assisted projects. The FHWA decision to bar FIGG is based on FIGG’s involvement with the 2018 pedestrian bridge collapse at Florida International University’s campus. As you may recall, the collapse killed six [...]
At the annual meeting of the National Association of Railroad Trial Counsel (NARTC), Nichole S. Bogen was elected the Central Region Vice President for 2020-2021. Ms. Bogen also serves on the Executive Committee. The NARTC is a 66 year-old organization made up of the top railroad trial attorneys from across the United States and Canada. Membership in NARTC is limited to lawyers who handle litigation and/or related matters for railroads [...]
OSHA has issued new Frequently Asked Questions addressing when an employer must report work-related cases of COVID-19. Unfortunately, the FAQs seem contrary to the 24-hour hospitalization rule. As you likely know, section 1904.39(b)(6) requires employers to report an inpatient hospitalization only if the hospital admission occurs within 24 hours of a work-related incident. Applying this to COVID, if an employee is exposed at work and then goes to the hospital within [...]
If you are a federal contractor, you probably have equal employment opportunity (“EEO”) and affirmative action (“AA”) plans in place. But if you are scratching your head and wondering if you have implemented these policies, perhaps it’s time to contact your local construction attorney and get some help drafting and implementing these policies. Who Needs an EEO and AA Plan? Any contractor who does more than $10,000 of government contract [...]
Having a well drafted Buy-Sell Agreement is as important as having the right tool for the job. A recent Nebraska Supreme Court opinion serves as a reminder of this fact or you could spend thousands of dollars and years litigating about rights and interests in the company. This case involved three individuals who owned a construction company in Kearney, Nebraska. The majority shareholder passed away in 2015 and the deceased’s [...]
The Small Business Stabilization Grant program has been extended until this Friday July 17, 2020 at 4:00 p.m. and is accepting new applicants (previous applicants are expected to be notified of the award status this week). Here is a press release put out by the Nebraska Department of Economic Development: DED Reopens Small Businesses Stabilization Grant Program with Expanded Eligibility They anticipate they can award up to 14,000 more grants [...]
Last week the Nebraska Supreme Court decided an interesting appellate jurisdictional question. In Picard v. P& C Group I, 306 Neb. 292, the Supreme Court confronted allocation in a worker’s compensation case. The plaintiff had twice suffered work-related injuries, each to a different body part. Both injuries resulted in permanent partial disability and loss of earning capacity. The question was whether the worker’s compensation court could apportion any loss of [...]
