“You Can’t Make Me Pay!”
January 28, 2025 —
Daniel Lund III - LexologySeveral years ago, Louisiana enacted a law prescribing a mandamus proceeding for unpaid contract sums purportedly owed by a public entity to a contractor – Louisiana Revised Statute 38:2191. The statute tackles both progress payments and final payment, distinguishing between the two and allowing withholding of a progress payment when there is “reasonable cause” to do so.
On the other hand, at least one Louisiana appellate decision held on the topic of final payment: once a final payment amount is “due” per the statute – based upon passage expiration of the lien period following “formal final acceptance” – the act of making the final payment is purely ministerial and not subject to defenses. According to that court, a defense to payment based on assessed liquidated damages – because the damages were disputed by the contractor – could not trump the essence of the statute allowing the contractor to pursue mandamus to collect the final payment.
More recently, on a public works levee project in Lafourche Parish, a dispute arose during the work concerning the means to secure material for constructing the levees. The net effect of the dispute entailed a major change in the contract price.
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
Labor Development Impacting Developers, Contractors, and Landowners
June 25, 2019 —
John Bolesta & Keahn Morris - Sheppard Mullin Construction & Infrastructure Law BlogIt is unlawful for unions to secondarily picket construction sites or to coercively enmesh neutral parties in the disputes that a union may have with another employer. This area of the law is governed by the National Labor Relations Act (“NLRA”), the federal law that regulates union-management relations and the National Labor Relations Board (“NLRB”), the federal administrative agency that is tasked with enforcing the NLRA. But NLRB decisions issued during the Obama administration have allowed a union to secondarily demonstrate at job sites and to publicize their beefs over the use of non-union contractors there, provided the union does not actually “picket” the site. In those decisions, the NLRB narrowed its definition of unlawful “picketing,” thereby, limiting the scope of unlawful activity prohibited by law. Included in such permissible nonpicketing secondary activity is the use of stationary banners or signs and the use of inflatable effigies, typically blow-up rats or cats, designed to capture the public’s attention at an offending employer’s job site or facilities.
A recently released NLRB advice memo, however, signals the likely reversal of those earlier decisions and that contractors and owners may now be able to stop such harassing union job site tactics simply by filing a secondary boycott unfair labor practice change with the NLRB. The 18 page memo, dated December 20, 2018 (and released to the public on May 14, 2019), directs the NLRB’s Region 13 to issue a complaint against the Electrician’s Union in a dispute coming out of Chicago where the union erected a large, inflatable effigy, a cat clutching a construction worker by the neck, and posted a large stationary banner proclaiming its dispute to be with the job’s general contractor over the use of a non-union electrical sub at the job site’s entrance. Though not an official Board decision, the memo suggests the NLRB General Counsel’s (GC) belief that the earlier Obama era decisions may have been wrongly decided and should be reconsidered by the NLRB on the theories that the Union’s nonpicketing conduct was tantamount to unlawful secondary picketing, that it constituted “signal” picketing that unlawfully induced or encouraged the employees of others to cease working with the subs or that it constituted unlawful coercion.
Reprinted courtesy of
John Bolesta, Sheppard Mullin and
Keahn Morris, Sheppard Mullin
Mr. Bolesta may be contacted at jbolesta@sheppardmullin.com
Mr. Morris may be contacted at kmorris@sheppardmullin.com
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Certificates Of Merit For NC Lawsuits Against Engineers And Architects? (Still No)(Law Note)
April 22, 2019 —
Melissa Dewey Brumback - Construction Law in North CarolinaCertificates of Merit are documents intended to show that a true issue exists with a professional’s work, prior to that person being sued. While North Carolina does require that a person suing a medical provider first have the matter reviewed by a professional (and attest to that in the Complaint), there is no requirement for any review prior to a lawsuit against an architect, engineer, or surveyor. Thus, anyone can file a lawsuit against an engineer/architect/surveyor without first having their case eyeballed reviewed by another professional.
Over the years, there have been attempts at adding a Certificate of Merit requirement to design professional lawsuits. See, for example, examples here: from
2005; from
2007; from
2011; and from
2013.
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Melissa Dewey Brumback, Ragsdale Liggett PLLCMs. Brumback may be contacted at
mbrumback@rl-law.com
Extreme Weather Events Show Why the Construction Supply Chain Needs a Risk-Management Transformation
July 24, 2023 —
Brad Barth - Construction ExecutiveA perfect storm of recent extreme weather events has exposed the fragility of North America’s construction supply chains amid an increasingly fluctuating, fast-changing risk landscape. Supply chains that were already reeling from resurgent demand for raw materials coming out of the pandemic have been further disrupted by major storms such as recent tornados in Arkansas and Mississippi. Such events can have a ripple effect across many distinct supply lines as exemplified when the 2021 Texas freeze caused railroad closures and knocked out both petrochemical and semiconductor plants, causing shortages that affected construction and many other industries.
The wide-ranging reverberations from these events demonstrate how stakeholders across all stages of capital projects increasingly share common vulnerabilities. Crucially, the way in which disruption from extreme weather events has caused project delays and cost overruns shows how time, cost and scope are increasingly interlinked and equally vulnerable to systemic risks.
Traditional project-management methods where risks are not collectively managed and mitigated by all stakeholders are becoming increasingly inadequate, as risks to cost, time and scope are often considered in isolation. The domino effect of supply-chain disruption across capital projects similarly shows the inadequacy of project-management models where suppliers are not afforded a key stake in the project (or sometimes even a seat at the planning table). This traditional model cannot adapt to sudden, systemic risks that disrupt multiple suppliers and ripple out across all stakeholders, deliverables and project-management metrics.
Reprinted courtesy of
Brad Barth, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Appeals Court Overruled Insured as Additional Insured on Subcontractor’s Commercial General Liability Policy
April 02, 2014 —
Beverley BevenFlorez-CDJ STAFFScott R. Murphy and Clifford J. Shapiro of Barnes & Thornburg LLP in the publication National Law Review analyzed the findings of the Mississippi case Carl E. Woodward, LLC v. Acceptance Indemnity Insurance: “the U.S. Court of Appeals for the Fifth Circuit overruled the district court’s determination that a general contractor was insured as an additional insured on its subcontractor’s commercial general liability (CGL) policy for claims arising out of the allegedly defective work performed by the subcontractor.”
“This case underscores the fact that many standard policy forms do not include completed operations coverage for additional insureds,” Murphy and Shapiro declared. “Owners and contractors that desire to have such coverage therefore need to check their contracts to be make sure the contract language requires completed operations coverage for additional insureds, and they also need to obtain and review the actual additional insured endorsement contained in their subcontractors’ insurance policies before work commences to make sure that the required completed operations insurance coverage is provided.”
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Two Worthy Insurance Topics: (1) Bad Faith, And (2) Settling Without Insurer’s Consent
February 20, 2023 —
David Adelstein - Florida Construction Legal UpdatesThe recent Eleventh Circuit Court of Appeals’ decision, American Builders Insurance Company v. Southern-Owners Insurance Company, 56 F.4th 938 (11th Cir. 2023), is an insurer versus insurer case that touches on two important insurance topics: (1) common law bad faith against an insurance company, and (2) an insurer’s affirmative defense that an insured settled a claim without its consent. The Eleventh Circuit provides invaluable legal discussion on these topics that any insured (and an insured’s counsel) need to know and appreciate. While this article won’t go into the granular facts as referenced in the opinion, it will go into the law because it is the law the facts of a case MUST cater to and address.
In this case, a person performing subcontracting work fell from a roof without fall protection and became paralyzed from the waist down. The general contractor had a primary liability policy and an excess policy. The general contractor’s primary liability insurer investigated the accident and assessed the claim. The subcontractor’s liability insurer, which was the primary insurance policy (the general contractor was an additional insured for work the subcontractor performed for the general contractor), did little to investigate and assess the claim and then refused to pay any amount to settle the underlying claim or honor its defense and indemnity obligation to the general contractor.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Civil Engineers: Montana's Infrastructure Grade Declines to a 'C-'
December 23, 2024 —
American Society of Civil EngineersHelena, MT — The Montana Section of the
American Society of Civil Engineers (ASCE) today released the
2024 Report Card for Montana's Infrastructure, assigning 14 categories of infrastructure a cumulative grade of 'C-', which is on par with the national average from the
2021 Report Card for America's Infrastructure. This is a one-notch decrease from the 'C' grade Montana received in its last report in 2018, citing increasingly severe weather events putting strain on aging and underfunded assets, and one of the fastest growing populations requiring expansions of transportation, water and energy infrastructure.
The report includes the first-ever chapter on Montana's broadband infrastructure, assigning an 'I' grade for 'incomplete' due to a lack of sufficient condition data; however, the chapter does note that 71% of Montana residents have access to adequate broadband service, and the IIJA provided nearly $630 million to expand this access across the state.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 160,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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William Lyon to Acquire RSI Communities
February 22, 2018 —
Dave Suggs - CDJ STAFFAccording to the article “William Lyon Agrees to Buy RSI Communities $460 million deal plants Lyon in Texas and adds to Inland Empire land holdings” published on the website Builder, the Newport Beach home builder is purchasing the Southern California and Texas home builder. This will be Lyon Homes’ first venture in the state of Texas.
RSI Communities works within both San Antonio and Austin, Texas as well as Southern California and the Inland Empire. It was founded by Todd Palmaer, a home building expert and Ron Simon, a building products expert and Newport Beach businessman. First time home buyers have been RSI’s main target.
President and CEO of RSI, Tod Palmaer is optimistic about the acquisition “We are delighted to have our company join the William Lyon Homes organization. We have a great deal of confidence in the William Lyon Homes platform and its executive management team, and believe that its acquisition of RSI Communities will add to Lyon’s continued success in its current and new markets.”
Pat Donahue who has almost 30 years of experience in home building, will serve as President to the Inland Empire Division. John Bohnen, RSI’s present Chief Operating Officer, will be the regional president in Texas. Mr. Bohnen has previously held executive positions with numerous home builders. William Lyon’s president and CEO Mark R. Zaist is excited about adding RSI’s key players to their team, and had this to say about the purchase. “The acquisition of RSI represents our most significant acquisition since our entry into Portland and Seattle with the Polygon Northwest Homes acquisition in 2014 and furthers our strategy of building in the strongest markets in the Western U.S., while also strengthening our pipeline in Southern California, as we continue our mission of being the premier Western Regional home builder.”
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