Federal Miller Act Payment Bond Claim: Who Gets Paid and Who Does Not? What Are the Deadlines?
September 16, 2019 —
William L. Porter - Porter Law GroupWhen working on federal public works construction projects there are no Stop Payment Notice or Mechanics Lien remedies available to protect subcontractors’ and suppliers’ right to payment. Instead, unpaid subcontractors and suppliers must resort to making a claim for payment under a federal law known as the AMiller Act@ (40 USCS 3131 et seq.). Many claimants however, do not realize that the right to make a Miller Act claim is not available to all subcontractors and suppliers. Before committing to performing work on a federal project it is important for subcontractors and suppliers to understand whether or not a Miller Act claim will be available. For those who have no Miller Act rights, careful consideration must be given to whether it is worth the risk to take on the project. For those who have valid Miller Act claim rights, important deadlines must be considered.
Who Gets Paid Under a Miller Act and Who Does Not
For federal projects in excess of $100,000, contractors who have a contract directly with the Federal Government must obtain Miller Act Payment Bond intended for the protection of Subcontractors, laborers and material suppliers to the project.
As a general rule, every subcontractor, laborer, or material supplier who deals directly with the prime contractor and is unpaid may bring a lawsuit for payment against the Miller Act Payment Bond. Further, every unpaid subcontractor, laborer, or material supplier who has a direct contractual relationship with a first-tier subcontractor may bring such an action. The deadlines for these claims are described below.
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
Wendel Rosen’s Construction Practice Group Receives First Tier Ranking by U.S. News and World Reports
December 02, 2015 —
Garret Murai – California Construction Law BlogOk, it may not be an Oscar, or even an Emmy, but we’re humbled and honoured just the same.
Wendel Rosen’s Construction Practice Group has received a first-tier ranking by the U.S. News and World Reports in its 2016 Best Law Firms rankings. This is the third year in a row that the firm’s Construction Practice Group has received this honor. Joining it on stage is the firm’s Real Estate, Bankruptcy, and Real Estate Litigation practices which also received first-tier rankings and the firm’s Land Use practice which received a second-tier ranking.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
ACS Recognized by Construction Executive Magazine in the Top 50 Construction Law Firms of 2021
September 06, 2021 —
Ahlers Cressman & Sleight PLLCACS is pleased to announce that the firm has been recognized by Construction Executive magazine in The Top 50 Construction Law Firms™ for 2021. Construction Executive ranked ACS number 31 among the top 50 construction practices in the country.
ACS is known for our depth of knowledge of the construction industry and experience in construction law. Our lawyers hold leadership positions within state and national industry organizations. Two of our lawyers are past chairs of the Washington State Bar Association’s Construction Law Section and the current chair, five of our lawyers have served as the Chair of the Associated General Contractors of Washington’s Legal Affairs Committee, and the majority of our lawyers are recognized as Super Lawyers and Rising Stars in Super Lawyers Magazine/Thomson Reuters.
Since it was first published in 2003, Construction Executive has become the leading trade magazine for news, market developments, and business issues impacting the construction industry. The magazine reaches more than 55,000 commercial, industrial, and institutional contractors and construction-related business owners. Each issue of Construction Executive includes articles designed to help owners and top managers run a more profitable and productive construction business.
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Ahlers Cressman & Sleight PLLC
The Partial Building Collapse of the 12-Story Florida Condo
June 28, 2021 —
Beverley BevenFlorez – CDJ StaffOn Thursday, the Champlain Towers South Condo building in Surfside, Florida suffered a partial collapse. As of Monday morning, the official death toll stood at 10 with 151 persons unaccounted for, according to the Miami Herald.
NPR uncovered minutes from a November 15th, 2018 Chaplain Tower South Condominium Association board meeting where the inspector made assurances that “the building was ‘in very good shape.’” However, “an
engineering report from five weeks earlier” alleged “that failed waterproofing in a concrete structural slab needed to be replaced ‘in the near future.’” Daniella Levine Cava, the Miami-Dade County mayor, told reporters that “officials ‘knew nothing’ about the report.”
The New York Times on Sunday reported that experts looking at video footage of the incident believe that the cause is centered on a location “in the lowest part of the condominium complex — possibly in or below the underground parking garage — where an initial failure could have set off a structural avalanche.” The cause of the incident remains unclear, however. This “progressive collapse” could have been caused by a number of different factors “including design flaws or the less robust construction allowed under the building codes of four decades ago.”
A witness, according to the New York Times, saw a hole appear near the pool: “Michael Stratton said his wife, Cassie Stratton, who is missing, was on the phone with him and was looking out through the window of her fourth-floor unit when, she told him, the hole appeared. After that, the call cut off.”
Possible reasons for the “initial failure at the bottom of the building could include a problem with the deep, reinforced concrete pilings on which the building sits — perhaps set off by an unknown void or a sinkhole below — which then compromised the lower columns. Or the steel reinforcing the columns in the parking garage or first few floors could have been so corroded that they somehow gave way on their own. Or the building itself could have been poorly designed, built with substandard concrete or steel — or simply with insufficient steel at critical points.”
"It will take many months to complete the analysis necessary to understand the cause or causes of the collapse,” Eric Ruzicka, a partner at the international law firm Dorsey & Whitney and a commercial litigator who specializes in the area of construction and real estate litigation, stated in a media release. “Often, information that comes out early can be very misleading or misunderstood unless the full context of the information is known.”
Ruzicka explained that Florida’s statues of limitations and repose may be relevant. “These statutes will likely eliminate the liability of those involved in the original development, design and construction of the building. Rather, victims and their families' recovery will be limited to those involved in the building's maintenance and those assessing the condition of the building over the past four years.”
Miami and Sunny Isles Beach have announced they will audit older structures in their communities “ahead of the mandatory 40-year recertification,” the Miami Herald reported.
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Liability Insurer Precluded from Intervening in Insured’s Lawsuit
September 17, 2018 —
David Adelstein - Florida Construction Legal UpdatesThere are cases where I honestly do no fully understand the insurer’s position because it cannot have its cake and eat it too. The recent opinion in Houston Specialty Insurance Company v. Vaughn, 43 Fla. L. Weekly D1828a (Fla. 2d DCA 2018) is one of those cases because on one hand it tried hard to disclaim coverage and on the other hand tried to intervene in the underlying suit where it was not a named party.
This case dealt with a personal injury dispute where a laborer for a pressure washing company fell off of a roof and became a paraplegic. The injured person sued the pressure washing company and its representatives. The company and representatives tendered the case to its general liability insurer and the insurer–although it provided a defense under a reservation of rights—filed a separate action for declaratory relief based on an exclusion in the general liability policy that excluded coverage for the pressure washing company’s employees (because the general liability policy is not a workers compensation policy). This is known as the employer’s liability exclusion that excludes coverage for bodily injury to an employee. The insurer’s declaratory relief action sought a declaration that there was no coverage because the injured laborer was an employee of the pressure washing company. The pressure washing company claimed he was an independent contractor, in which the policy did provide limited coverage pursuant to an endorsement.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
4 Lessons Contractors Can Learn From The COVID-19 Crisis
May 25, 2020 —
Patrick Hogan - Handle.comAt the start of 2020, the industry outlook in construction was positive. Many contractors were optimistic about what the year had in store for construction businesses in terms of profit, expansion of operations, and even payment issues. That was until the COVID-19 pandemic put a wrench in everyone’s business plans.
There’s no question about how huge the impact of the novel coronavirus crisis is on business operations. With the federal and state governments implementing strict measures to slow down the spread of COVID-19, construction businesses are experiencing significant delays and disruptions in their operations. Because of the lockdowns and stay-at-home orders, many construction projects are forced to postpone operations or, worse, cancel them altogether.
Nevertheless, there are lessons in the COVID-19 pandemic that contractors can learn. Here are some of them.
1. Contractors need to be proactive in meeting preliminary notice requirements
Cash is tight in times of crisis. As the economy comes to a standstill, construction businesses will need to deal with decreasing profits. They may even have to dip into their own cash reserves to cover fixed expenses and their employees’ salaries.
In times like this, it is crucial that contractors perform due diligence in protecting their right to get paid. The first step in doing so is to prepare
preliminary notices. These notices are an important step in the mechanics lien process and without them, chances contractors will not be able to recover the unpaid compensation for the materials they furnished and services they rendered.
2. Force majeure provisions are crucial parts of a contract
The novel coronavirus pandemic has highlighted the importance of force majeure provisions in construction contracts. Before the COVID-19 crisis hit business operations, force majeure provisions were typically considered as simple boilerplate clauses. This means they were just there as a standard part of contracts.
However, the same force majeure clauses, as well as impossibility of performance provisions, have become crucial in the current crisis. As many construction businesses experience difficulties with their operations, they may not be able to fulfill their contractual responsibilities. The said clauses can give contractors a much-needed reprieve.
As the current crisis continues, contractors should review contracts as these provisions can give them more time to finish the job. And in the hopefully near future when the crisis ends, business owners should review the contract creation process and ensure that these clauses included in contracts will be able to address the impact of situations similar to COVID-19.
3. Having solid internal communication is crucial
There’s a lot of uncertainty with the COVID-19 situation. With work operations temporarily stopping, the circumstances can be quite stressful for employees. There will be doubts and fears within your workforce on whether work will be back to normal as soon as possible or not.
Keeping your workforce well-informed and trusting of your organization is crucial, especially in this time of uncertainty. That is why it is paramount that you have a solid internal communication infrastructure to disseminate information about the current work situation and the next steps that the business will take. In addition, only through proper employee communication can the implementation of social distancing and hygiene measures be effective.
4. Contractors can benefit from flexible work arrangements
As the coronavirus crisis has made it necessary for everyone to stay at home, construction businesses should look for ways to continue operations. Expanded work arrangements such as work-from-home setups may just be the solution.
Of course, most of the physical work that is needed to be done on-site will be impossible to do at home, but office-based functions such as sales, client relations, design, and administrative roles can still continue. This can even have additional benefits to productivity and health. And when the crisis is over, business owners should consider incorporating these work arrangements into their operations permanently.
The COVID-19 crisis is not showing any sign of stopping soon, and even when it ends, it will take quite a long time before we can be back to business as usual. As the crisis continues, however, business owners should take the situation as a learning experience.
Once the COVID-19 crisis is over, it will take a long time for things to go back to normal. In fact, things may not end up going back to the way they were before and businesses will need to adapt to the new normal. However the situation evolves, business owners should take this opportunity to learn new things and maintain resilience in trying times.
About the Author:
Patrick Hogan is the CEO of Handle.com, where they build software that helps contractors, subcontractors, and material suppliers with late payments. Handle.com also provides funding for construction businesses in the form of invoice factoring, material supply trade credit, and mechanics lien purchasing.
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Environmental Roundup – May 2019
July 09, 2019 —
Anthony B. Cavender - Gravel2GavelFederal Courts of Appeal
Dam Claims Collapse
On May 7, 2019, the U.S. Court of Appeals for the Eleventh Circuit decided the case of Navelski, et al. v. International Paper Company. After a major storm, a dam constructed by International Paper to serve the operations of its local paper mill, was breached, releasing millions of gallons of water into a nearby creek resulting in the flooding of many homes located downstream from the creek. IP was sued by the homeowners in a class action, alleging negligence and strict liability for conducting an abnormally dangerous activity. The trial court dismissed the strict liability claim, and the jury found IP was not negligent in the operation of the dam. On appeal, the court upheld the jury verdict, agreeing that the verdict was supported by the evidence heard by the jury. The appeals court also agreed that the strict liability claim was properly dismissed as a matter of law because the operation of this dam was not an abnormally dangerous activity under Florida law. The plaintiffs had also argued that the jury should not have been advised that the home county, Escambia County, has applied for a FEMA grant which apparently made the case that some of the downstream homes were naturally prone to flooding. A redacted version of the application was allowed to be shown to the jury, but the appeals court held that the plaintiffs had not demonstrated that the court ruling was prejudicial.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
How Pennsylvania’s Supreme Court Decision Affects Coverage of Faulty Workmanship Claims
March 31, 2014 —
Beverley BevenFlorez-CDJ STAFFDarin J. McMullen of the firm Anderson Kill explained how a recent opinion by the Pennsylvania Supreme Court allows “Pennsylvania policyholders” to “more confidently challenge insurance companies’ denials of faulty workmanship claims.”
The decision in Indalex Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 2013 Pa. Super 311 (Dec. 3, 2013) “reverses a nearly decade-long trend of Pennsylvania decisions narrowing the scope of insurance coverage for construction and defect-related claims under commercial general liability insurance policies,” according to McMullen. “Equally important, the Indalex ruling dealt a blow to the insurance industry’s continual efforts to win overbroad expansion of the rulings in Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., Millers Capital Ins. Co. v. Gambone Bros. Dev. Co., and Erie Ins. Exchange v. Abbott Furnace Co., which found that claims of faulty workmanship in some circumstances may not constitute coverage-triggering ‘occurrences.’”
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