Seattle Washington Building Expert Directory

Fourth Circuit Clarifies What Qualifies As “Labor” Under The Miller Act

May 08, 2023 — Jeffrey Hummel - The Construction Seyt
Under the Miller Act, 40 U.S.C. §§ 3131 et seq., contractors hired to work on federal construction projects are required to furnish payment bonds in order to ensure payment to certain persons that provide labor for the project. The United States Court of Appeals for the Fourth Circuit recently issued a published decision clarifying the type of work that qualifies as “labor” under the Miller Act. Elliot Dickson v. Fidelity and Deposit Company (issued April 26, 2023). In that case, the U.S. Department of Defense hired Forney Enterprises (Forney) as the prime contractor on a renovation project at the Pentagon. Forney retained Fidelity and Deposit Company of Maryland (Fidelity) to provide the required Miller Act payment bond. Forney then entered into a subcontract with Elliott Dickson (Dickson), a professional engineer, to work as a project manager on the contract. Dickson primarily supervised labor on the site, but also performed other tasks, including logistical and clerical duties, taking various field measurements, cleaning the worksite, moving tools and materials, and sometimes even watering the concrete himself. Dickson’s work required him to be onsite on a daily basis. Read the court decision
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Reprinted courtesy of Jeffrey Hummel, Seyfarth
Mr. Hummel may be contacted at jhummel@seyfarth.com

Yet ANOTHER Reminder to Always Respond

July 11, 2021 — Christopher G. Hill - Construction Law Musings
You would think I wouldn’t have to discuss the absolute need to respond to any served pleadings, particularly after some of the prior examples of what can happen if you fail to respond. Of course, I wouldn’t be starting a post like this if those that were sued contacted an experienced attorney in a timely fashion and followed this advice. Yet another example of the disastrous results that can occur simply from failing to file responsive pleadings occurred last year in the Eastern District of Virginia federal court in Alexandria, VA. In Pro-Telligent, LLC v. Amex Int’l, Inc. the Court considered a claim for breach of contract (among other causes of action) by Pro-Telligent against Amex. The operative facts are that Pro-Telligent was a subcontractor to Amex that claimed it was unpaid in the amount of $279,660.27, its Complaint was served on January 7, 2021, and Amex did not respond within the required 21-day window. The Court then held a hearing on February 28, 2020, regarding the validity of the Clerk of Court’s entry of default per the rules of court. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Not So Unambiguous: California Court of Appeal Finds Coverage for Additional Insured

October 11, 2017 — Malcom Ranger-Murdock - Saxe Doernberger & Vita, P.C.
California’s Fourth District Court of Appeal recently determined that manuscript additional insured endorsements (AIEs), which purportedly provided coverage for ongoing operations only, were ambiguous. The court also found the insurer that issued the policies, American Safety Indemnity Co. (American Safety), acted in bad faith due to its systematic efforts to deny coverage to general contractors as additional insureds. In Pulte Home Corp. v. American Safety Indemnity Co.,1 Pulte Home Corporation (Pulte Home), a general contractor, sued American Safety for failure to defend Pulte Home as an additional insured in connection with two underlying construction defect lawsuits. American Safety contended that it did not have a duty to defend Pulte Home because the loss occurred after the construction project was complete and the applicable AIEs did not provide coverage for completed operations, and/or because the policy’s faulty workmanship exclusions applied. The trial court awarded $1.4 million in compensatory and punitive damages to Pulte Home, and American Safety appealed. Read the court decision
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Reprinted courtesy of Malcom Ranger-Murdock, Saxe Doernberger & Vita, P.C.
Mr. Ranger-Murdock may be contacted at mrm@sdvlaw.com

Ready, Fire, Aim: The Importance of Targeting Your Delay Notices

November 08, 2021 — Bradley Sands, Jones Walker LLP - ConsensusDocs
Providing written notice of delay to subcontractors when a project is behind schedule is a regular part of good project documentation practices. A properly targeted delay notice is an important, project correspondence that is an appropriate response to a subcontractor’s specific delay or ongoing delays. However, when a project falls behind schedule and the project management team is in the fog of war, it could seem like a good idea to start firing off project delay notices to any and every subcontractor. While these delay notices may provide a short term burst of productivity, you could find that those same notices are aimed back at you in a future litigation. This article identifies two potential unintended consequences of sending delay notices that a contractor should keep in its sights and then provides recommendations for properly calibrating future delay notices in light of these potential consequences. Acceleration: You Might Get What You Ask For A delay notice to a subcontractor could be interpreted as—or expressly state—direction to the subcontractor to accelerate its work. When a subcontractor is directed to accelerate its work, it may incur additional costs for premium, extended, or overtime labor, additional crews, increased supervision costs, increased overhead costs, and losses due to productivity impacts from the acceleration (e.g., stacking of trades and fatigue). A subcontractor may be entitled to recover these increased costs that are caused by a direction to accelerate. Read the court decision
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Reprinted courtesy of Bradley Sands, Jones Walker LLP
Mr. Sands may be contacted at bsands@joneswalker.com

Sobering Facts for Construction Safety Day

April 28, 2014 — Melissa Dewey Brumback – Construction Law in North Carolina
Happy “Construction Safety Day” everyone! James White of Maxwell Systems, has shared with me an infographic showing all sorts of data about construction fatalities. As you might expect, falls are the #1 source of construction-site fatalities, followed by being struck by falling objects, electrocution, and being caught between objects, in that order. Together, these “fatal four” make up 57% of all construction worker deaths. Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Construction Law in North Carolina
Ms. Brumback may be contacted at mbrumback@rl-law.com

Pa. Contractor Pleads No Contest to Prevailing-Wage Charges, Pays Workers $20.7M

September 20, 2021 — Tom Ichniowski - Engineering News-Record
Pennsylvania construction contractor Glenn O. Hawbaker Inc. has pleaded no contest to counts of theft of worker pay—in alleged violation of state prevailing-wage laws—and will pay 1,267 workers restitution of $20.7 million in unpaid wages, Pennsylvania Attorney General Josh Shapiro said. The company entered its plea to four felony counts of “theft by failure to make required disposition of funds received” on Aug. 3 before President Judge Pamela A. Ruest of the Centre County Court of Common Pleas in Bellefonte, Pa. Reprinted courtesy of Tom Ichniowski, Engineering News-Record Mr. Ichniowski may be contacted at ichniowskit@enr.com Read the full story... Read the court decision
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Construction Employment Rose in 38 States from 2013 to 2014

March 19, 2014 — Beverley BevenFlorez-CDJ STAFF
The Associated General Contractors of America (AGC) reported that 38 states experienced construction job growth from January 2013 to January 2014, and 27 states showed gains from December 2013 to January 2014. AGC stated that “the fact so many states added construction jobs for the year and month despite harsh winter conditions in many parts of the country is a sign that demand appears to be recovering.” Kansas ranked first in the “12-month gain or loss” category with a 10.7% gain. Wyoming came in last with a -5.9% over a 12-month period. However, if examining a one-month period (between December 2013 and January 2014), Idaho showed the highest growth with a 5.8% gain, while Vermont was ranked 51 at -5.5%. Read the full story, Article... Read the full story, Rankings... Read the court decision
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Mind The Appeal Or: A Lesson From Auto-Owners Insurance Co. V. Bolt Factory Lofts Owners Association, Inc. On Timing Insurance Bad Faith And Declaratory Judgment Insurance Claims Following A Nunn-Agreement

August 06, 2019 — Jean Meyer - Colorado Construction Litigation
On May 30, 2019, Judge Richard Brooke Jackson of the United States District Court for the District of Colorado offered an insightful lesson to the parties in Auto-Owners Insurance Co. v. Bolt Factory Lofts Owners Association, Inc.[1] on the importance of ripeness in declaratory judgment insurance actions and bad faith counterclaims. The case arrived in front of Judge Jackson based on the following fact pattern. A homeowner association (Bolt Factory Lofts Owners Association, Inc.) (“Association”) brought construction defect claims against a variety of prime contractors and those contractors subsequently brought third-party construction defect claims against subcontractors. One of the prime contractors assigned their claims against a subcontractor by the name Sierra Glass Co., Inc. (“Sierra”) to the Association and all the other claims between all the parties settled. On the eve of trial involving only the Association’s assigned claims against Sierra, the Association made a settlement demand on Sierra for $1.9 million. Sierra asked its insurance carrier, Auto-Owners Insurance, Co. (“AOIC”), which had been defending Sierra under a reservation of rights letter, to settle the case for that amount, but AOIC refused. This prompted Sierra to enter into a “Nunn-Agreement” with the Association whereby the case would proceed to trial, Sierra would refrain from offering a defense at trial, the Association would not pursue any recovery against Sierra for the judgment, and Sierra would assign any insurance bad faith claims it may have had against AOIC to the Association. (“Nunn-Agreement”) Read the court decision
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Reprinted courtesy of Jean Meyer, Higgins, Hopkins, McLain & Roswell, LLC
Mr. Meyer may be contacted at meyer@hhmrlaw.com

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