Miller Act CLAIMS: Finding Protections and Preserving Your Rights
November 29, 2021 —
Diana Lyn Curtis McGraw - ConsensusDocsThe Miller Act (the “Act”), which requires the prime contractor to furnish a performance bond and a payment bond to the government, protects “all persons supplying labor and materials carrying out the work provided for in the contract.”[1] Despite its broad language, courts have limited the parties who may actually assert a claim under the Act. This article introduces general background of the Act, identifies subcontractors who may qualify for protections under the Act, and suggests ways to preserve the rights as prime contractors.
Brief Background of the Miller Act
Under the Miller Act, there are two types of bonds the prime contractor furnishes to the government in a federal construction contract of more than $100,000[2]
1. Performance Bond
A performance bond protects the United States and guarantees the completion of the project in accordance with the contract’s terms and conditions.[3] This bond must be with a surety that is satisfactory to the officer awarding the contract and in the amount the officer considers adequate for government protection.[4] If a contractor abandons a project or fails to perform, the bond itself will cover the government’s cost of substitute performance. Thus, the performance bond disincentivizes contractors from abandoning projects and provides the government with reassurance that an abandonment will not create delays or additional expenses.
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Diana Lyn Curtis McGraw, Fox Rothschild LLPMs. McGraw may be contacted at
dmcgraw@foxrothschild.com
Karen Campbell, Kristen Perkins to Speak at CLM 2020 Annual Conference in Dallas
March 02, 2020 —
Karen Campbell & Kristen Perkins - Lewis BrisboisNew York Partner Karen L. Campbell and Fort Lauderdale Partner Kristen D. Perkins will both speak at the upcoming CLM 2020 Annual Conference taking place March 18 to 20 at the Gaylord Texan Resort outside Dallas, Texas.
On March 19 at 2:00 p.m., Ms. Perkins will join a panel discussion titled “Predictive Analytics – You Don’t Need a Crystal Ball to Predict the Future,” exploring how predictive analytics affects litigation management programs, including case budgets, case cycle times, and claims outcomes. The panelists will also look at how machine learning picks up on nuances or anomalies that can affect analytics and give attendees a clearer picture on expected case parameters, and how that information can empower claims professionals during firm selection.
Then, on March 20 at 10:40 a.m., Ms. Campbell will join a roundtable discussion titled “How to Calculate Damages and Defend in Serious Injury Cases,” covering the calculation of both economic and non-economic damages, as well as trends and recent verdicts involving punitive damages and assessing the various types of third-party liability.
Reprinted courtesy of
Karen Campbell, Lewis Brisbois and
Kristen Perkins, Lewis Brisbois
Ms. Campbell may be contacted at Karen.Campbell@lewisbrisbois.com
Ms. Perkins may be contacted at Kristen.Perkins@lewisbrisbois.com
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New Homes in Palo Alto to Be Electric-Car Ready
October 01, 2013 —
CDJ STAFFElectric cars are still fairly rare, but if you buy a new home in Palo Alto, you’ll have a place to charge it. The Palo Alto City Council has been enthusiastic about a measure that would require new homes to come wired for car chargers. The hope of the council is that the measure will make owning an electric car “convenient, easy and economical.”
If added to the construction process, the wiring adds about $200 to the cost of the home, far less than the cost of adding it to an existing home. In addition to considering changes in the building code, the city also considered measures that would allow for the operation of public charging stations.
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Depreciating Labor Costs May be Factor in Actual Cash Value
April 20, 2016 —
Tred R. Eyerly – Insurance Law HawaiiThe Minnesota Supreme Court considered a certified question from the the U.S. District Court regarding consideration of depreciating labor costs in determining the actual cash value of a loss. Wilcox v. State Farm Fire & Cas. Co., 2016 Min. LEXIS 50 (Minn. Feb. 10, 2016).
The insureds' home was damaged by hail. State Farm provided a written estimate that calculated the actual cash value of the loss. To estimate the actual cash value of the damaged property, State Farm first calculated the replacement costs of individual items, such as roof flashing, siding, fascia, gutters, and window screens. Next, State Farm subtracted the pre-loss depreciation of some, but not all, individual items. For example, State Farm depreciated the cost of removing and replacing certain materials, such as siding. State Farm did not depreciate the cost of the new siding separately from the cost of the labor required to install the new siding on the home. Instead, State Farm calculated the removal and replacement of the siding as a single cost, then depreciated the removal-and-replacement cost as a whole. The cost of labor to repair or replace the damaged property was referred to by the court as "embedded labor costs."
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
A Court-Side Seat: Guam’s CERCLA Claim Allowed, a “Roundup” Verdict Upheld, and Judicial Process Privilege Lost
June 14, 2021 —
Anthony B. Cavender - Gravel2GavelThis is a brief account of some of the important environmental and administrative law cases recently decided.
THE U.S. SUPREME COURT
BP PLC, et al. v Mayor and City of Baltimore
The issue the court confronted was a procedural matter: Can the defendant energy companies use the federal removal statutes (see 28 USC Section 1442) to remove a state law climate change lawsuit to federal court? Here, a group of energy companies were sued by the mayor and city council of Baltimore in state court, where they alleged that the defendants had concealed the adverse environmental effects of the fossil fuel products they promoted and sold in Baltimore City. Several similar lawsuits have been filed in many state courts, where typically it is alleged that the defendants can be sued on various common law theories. Rather than defend these cases in state court, the defendants have sought to remove these cases to federal court because climate change liability appears to be an issue that should be settled at the federal level. These efforts have been unsuccessful, with most federal trial and appellate courts holding that the reasons cited for removal (oftentimes the federal officer removal statute) have not been persuasive. In this case, both the Maryland federal district court and the U.S. Court of Appeals held they had no jurisdiction to authorize removal, and thus returned the case to the state court. Noting that the U.S. Court of Appeals for the Seventh Circuit ruled that a removal action could be countenanced under Section 1442, thus creating a circuit split, the Supreme Court held that a straightforward reading of the removal statute empowers the reviewing court to examine all theories for removal that a district court has rejected. Consequently, the Court remanded the case to the Fourth Circuit where it can decide, “in the first instance,” whether there actually exist grounds to remove this case to federal court.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
PSA: Virginia DOLI Amends COVID Workplace Standard
October 18, 2021 —
Christopher G. Hill - Construction Law MusingsAs the governmental response to COVID-19 evolves, so do the various standards that apply to employers. Effective September 8, 2021, the Virginia Department of Labor and Industry superseded its earlier permanent workplace standard with a new standard.
In many ways, the new standard simplifies compliance because it gets rid of what I believed to be overly confusing workplace classifications into risk levels and simply applies the new standard to all workplaces regardless of how they would have been classified. Some key points to keep in mind regarding the new standard are the following (with the recommendation that all employers read and understand the text of the standard):
- Masks: All unvaccinated employees must wear masks in all public, common, or shared workspaces with certain exceptions. These exceptions include when an employee is alone in a room/office, when eating, certain medical conditions, and where it is important that the mouth can be seen (such as communication with the deaf). Vaccinated employees need not mask up unless working in a high or substantially transmission area per the CDC Data Tracker.
- Vaccination Requirement: As of now, the DOLI does not require employee vaccinations. However, employers will need to have a way to determine vaccination status to comply with other parts of the standard.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Town Concerned Over Sinkhole at Condo Complex
September 24, 2013 —
CDJ STAFFDespite the assurances of their engineering firm, the township of Old Bridge, New Jersey has yet to release the performance bond to the construction of Plaza Grande, a condominium complex for residents over 55. One resident summarized the problem for the Suburban, a newspaper for towns in the area. “Our major concern is a sinkhole near Building 4 that has come back several times.”
D.R. Horton, the developer on the project, has dug out the sinkhole, then backfilled and compacted it. However , one member of the Old Bridge Township Council said that she noticed that the area was beginning to sink again. The council member, Mary Sohor, said that Horton “should’ve dug a little deeper and did a little more.”
D.R. Horton said that the issues do not affect the safety of the residents and attribute them to seasonal wear and tear.
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7 Areas where Technology is Shifting the Construction Business
November 21, 2018 —
Eric Weisbrot – JW Surety BondsThe digital transformation of the last two decades has taken hold of the business environment in a powerful way. Companies in nearly all sectors are experiencing a significant shift in the way business is done, with a heavy focus on improved productivity, increase profitability, and enhanced product and service offerings. The construction industry has been historically slow to update its processes and business models in-line with other industries, but technology is currently making its long-awaited appearance in the sector. Construction professionals can embrace these new solutions to run more efficient businesses and keep a closer eye on profitability by reducing
common costs over time.
These are the seven major areas where technology is changing construction.
1 - Business Management
One of the most apparent shifts taking place in the construction industry thanks to technology is the advancement of business processes and systems behind the scenes. Construction managers and job site owners have countless
digital tools at their fingertips to help with managing all aspects of the business. This includes more efficient ways to manage material use and equipment inventory, logging subcontractor hours and pay, and maintaining reporting requirements from regulatory perspectives. Many software solutions integrate with older, legacy systems, making this change an easy one for construction businesses across the board.
2 – Jobsite Productivity
Another area of transformation in construction is productivity on each job site. Technology has offered job owners and general contractors more efficient methods to keep track of project timelines as well as subcontractor progress from start to finish. The technology advancements in this arena come in the form of wearable devices that track work performed, as well as mobile devices that help keep the often mundane tasks necessary for a project’s success up to date and completed on time.
3 – Worker Safety
Although wearables are being utilized in several different ways in the construction business, these devices are making a significant difference in the safety of workers. From smart helmets to digitally enhanced eyewear, workers are alerted to potential hazards on the job that they otherwise could not identify. Similarly, augmented and virtual reality solutions are being used to train workers before they arrive at a job, preparing them for safety concerns well in advance. Even though most licensed and
bonded construction workers have appropriate training throughout their careers, the addition of these resources has the ability to further reduce the risks often associated with construction work.
4 – Surveying and Monitoring
Unmanned aerial vehicles, also known as
drones, are being used throughout construction. These digital tools are equipped with cameras to offer a bird’s eye view of a construction site to help with surveying and identifying potential hazards for workers. Drones also help with inspections throughout a project’s progression, offering some reduction in cost and improving efficiencies.
5 – Improved Materials
Technology is also playing a role in the materials used on job sites. The addition of 3D printing has proven beneficial for construction companies, as concrete composites, plastics, and other materials are being printed and used to create structures on-site. This offers a more cost-effective and accurate way to complete a project.
6 – Self-operating Equipment
Some technology firms are making waves in the construction industry because they are currently developing and implementing
autonomous equipment solutions. Heavy machinery, like excavators, bricklayers, and bulldozers, are already being used on construction sites to help ease the burden of the labor shortage in the industry. While these machines are not yet mainstream, the benefits they offer mean they are likely to become a staple in construction in the years to come.
7 – Big Data
Finally, technology is shifting the construction business by way of big data analytics. With the detailed information from new software solutions, wearable tech, and drones, construction site managers have more data than they have ever had. This influx of information offers a way to analyze job site progress, budgets, timelines, and efficiency for companies large and small.
Author:
Eric Weisbrot is the Chief Marketing Officer of
JW Surety Bonds. With years of experience in the surety industry under several different roles within the company, he is also a contributing author to the surety bond blog.
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