Important Information Regarding Colorado Mechanic’s Lien Rights.
November 07, 2012 —
David McLain, Colorado Construction LitigationWith payment problems in the construction economy having accelerated over the past few years, there has been a substantial increase in mechanic’s lien activity and associated litigation. The typical mechanic’s lien claimant is a material supplier, a trade subcontractor, or even a general contractor that has not been paid by the developer/owner of the construction project. The reason for filing a mechanic’s lien claim is that it offers the prospect in many cases to make the unpaid construction professional a priority creditor, with a lien on the real estate that is superior to the construction lender.
One of the primary rules governing a mechanic’s lien claim is that the creditor’s formal written “Notice of Intent to File a Mechanic’s Lien” (hereafter “Lien Notice”) must be (1) served on the owner of the property for which the work was done or the materials used, and (2) served at the same time on the general contractor who has handled the construction project. After the creditor has made service of the lien claim by USPS certified mail (using the green return receipt card for proof of service) or separate personal delivery of the notice to the property owner and general contractor, ten full days must pass (not including the date of mailing of the notices) before the lien notice is filed in the public records.
After ten days have expired following the date of mailing using certified mail, or personal delivery of the notice to the property owner and the general contractor, the lien notice can be filed to make the lien valid.
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David M. McLain, Higgins, Hopkins, McLain & Roswell, LLC.Mr. McLain can be contacted at
mclain@hhmrlaw.com
The 2024 Colorado Legislative Session Promises to be a Busy One for the Construction Industry and its Insurers
January 16, 2024 —
David M. McLain – Colorado Construction LitigationJanuary 10th marked the first day of the 2024 Colorado legislative session. After the pomp and circumstance of opening day, a total of eighty-six bills were introduced. Among them, two impact the construction and insurance industries. First,
House Bill 24-1008 would make general contractors and their subcontractors, which are direct employers of an employee, jointly and severally liable for all debts owed based on wage claims or investigations. Essentially, if HB 24-1008 were to become law, general contractors would become the guarantors of wage payments to their subcontractors’ employees. The second bill,
House Bill 24-1083, would require the Colorado Division of Insurance to conduct a study of construction liability insurance for construction professionals in Colorado and would require that, 14 days prior to closing the sale of a new residence, the seller provide the purchaser and the county clerk and recorder’s office certain information regarding the insurance coverage for the home. In a year when the legislature should be focusing on construction defect reform and affordable housing for Coloradoans, these first two bills will likely drive up the cost of new construction.
House Bill 20-1008, sponsored by Representatives Duran and Froelich, Brown, deGruy Kennedy, Epps, Garcia, Hamrick, Hernandez, Joseph, Lieder, Lindstedt, Mabrey, Mauro, Ricks, Rutinel, Story, Velasco, and Vigil and Senators Danielson and Jaquez Lewis, Exum, Gonzales, Kolker, Marchman, and Sullivan, has been assigned to the House Committee on Business Affairs & Labor but has not yet been scheduled for a hearing. The bill summary states:
For wage claims brought by individuals working in the construction industry, the bill:
- Requires that a subcontractor that receives a written demand for payment forward a copy of the written demand for payment to the general contractor within 3 business days after receipt;
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Construction Picks Up Post-COVID and So Do Claims (and A Construction Lawyer Can Help)
September 12, 2022 —
Christopher G. Hill - Construction Law MusingsI’m a construction attorney and proud to be one. Over the past couple of years, my expertise (and that of my fellow members of the Virginia construction bar) has been challenged by everything from COVID-related shutdowns to supply chain issues to unanticipated price increases. With each of these obstacles placed in front of my clients and friends in the Virginia construction industry, I have gotten calls and questions as to how to best handle the various issues facing the construction world.
Needless to say, changes in price or material availability occurring between the date of a contract’s signing and the (likely delayed) start or completion of the contractual scope of work have caused some consternation and claims. Many of these claims did not come forward or reach my, or others, desk until after the world reopened post-COVID and construction began to speed up and money started to be owed. While one “easy” answer, particularly for those “upstream” in the payment chain, is “tough luck, you gave me a fixed price, signed a contract, and we expect you to honor it,” this may not be the best and most practical way to get the job done.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Don’t Fall in Trap of Buying the Cheapest Insurance Policy as it May be Bad for Your Business Risks and Needs
March 25, 2024 —
David Adelstein - Florida Construction Legal UpdatesDon’t fall in the trap of buying the cheapest insurance policy. It will come and bite you in the butt big time! Consult with an insurance broker that understands construction and, importantly, your specific industry, to provide you coverage within your industry. Otherwise, you’ll be paying for a policy that may (i) not be a good policy, and (ii) may provide you minimal to no value for your industry’s RISKS and NEEDS when factoring in exclusions. When procuring insurance, think of the old adage “penny wise and pound foolish,” and don’t make decisions that fit within this adage!
The recent decision in Nautilus Ins. Co. v. Pinnacle Engineering & Development, Inc., 2024 WL 940527 (S.D. Fla. 2024) serves as an example. Here, a subcontractor was hired by a general contractor to perform underground utility work for a townhome development which consisted of 57 townhome units included in 18 detached structures. The subcontractor’s underground work was defective which caused damage to the property’s water line, sewer system, plumbing lines, pavers, etc. The general contractor was liable to the owner for this defective work. Although the general contractor was an additional insured under the subcontractor’s commercial general liability (CGL) policy, the subcontractor’s CGL carrier denied the duty to defend and initiated an insurance coverage lawsuit. Motions for summary judgment were filed.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Court Denies Insurers' Motions for Summary Judgment Under All Risk Policies
June 05, 2017 —
Tred R. Eyerly - Insurance Law HawaiiThe federal district court found that the insurers could not escape coverage by summary judgment under their all risk policies. Eagle Harbour Condo Assoc'n v. Allstate Ins. Co., 2017 U.S. Dist. LEXIS 54761 (W.D. Wash. April 10, 2017).
Eagle Harbour Condominium Association sued several of its insurers who denied coverage for hidden water damage. Various insurers provided coverage from 1988 to 2015.
The Association asserted that wind-driven rain and inadequate construction allowed water to penetrate the buildings' sheathing and framing, causing decades of deterioration and decay, until the damage was exposed to view in August 2014. The insurers claimed that the loss resulted from poor decisions in constructing and inadequately maintaining a stucco building in the wet and windy Pacific Northwest. The Association argued that the policies did not explicitly exclude damage caused by wind-driven rain, so there was coverage.
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Tred R. Eyerly - Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
CISA Guidance 3.1: Not Much Change for Construction
June 22, 2020 —
Laura Bourgeois LoBue - Gravel2Gavel Construction & Real Estate Law BlogThis week, the Cybersecurity & Infrastructure Security Agency (CISA) issued Version 3.1 of its Guidance on the Essential Critical Infrastructure Workforce. For the most part, CISA’s Guidance 3.1 did not change from Version 3.0 as it relates to construction. However, CISA added a few construction-related services to “Essential Critical Infrastructure”:
- “Workers who support the construction and maintenance of electric vehicle charging stations.”
- “Engineers performing or supporting safety inspections.”
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Laura Bourgeois LoBue, PillsburyMs. LoBue may be contacted at
laura.lobue@pillsburylaw.com
Lithium for Batteries from Geothermal Brine
July 08, 2024 —
Robert A. James, Sidney L. Fowler & Clarence H. Tolliver - Gravel2Gavel Construction & Real Estate Law BlogIf all goes as planned, solar, wind and other clean energy technologies will help us abandon carbon emissions for good. But many green power sources perform their best only when nature cooperates, so an important (and sometimes overlooked) component of the energy transition is the ability to store electricity for a rainy or calm day. Lithium is the ingredient of choice for electric vehicle batteries, solar panels and grid elements. As these innovations ramp up, lithium demand is expected to soar by 90% over the next two decades, driving a surge in production efforts. Some experts predict a deficit in the mineral by as soon as 2025.
Predominant mining and extraction processes can be detrimental to the surrounding air, soil and water, in contrast to the environmentally friendly intentions of the lithium applications. But another type of renewable energy may be able to provide a solution. Hydrothermal brine, a high-saline water mixture found deep within the Earth’s crust, contains lithium-rich deposits that have leached from heated rocks into underground water. Geothermal power players employing hydrothermal brine are spearheading plans to extract the valuable resource in a cleaner and more sustainable manner.
Reprinted courtesy of
Robert A. James, Pillsbury,
Sidney L. Fowler, Pillsbury and
Clarence H. Tolliver, Pillsbury
Mr. James may be contacted at rob.james@pillsburylaw.com
Mr. Fowler may be contacted at sidney.fowler@pillsburylaw.com
Mr. Tolliver may be contacted at clarence.tolliver@pillsburylaw.com
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Standard of Care
December 16, 2019 —
Jay Gregory - Gordon & Rees Construction Law BlogOne of the key concepts at the heart of Board complaints and civil claims against a design professional is whether or not that design professional complied with the applicable standard of care. In order to prevail on such a claim, the claimant must establish (typically with the aid of expert testimony) that the design professional deviated from the standard of care. On the other side of the coin, to defend a design professional against a professional malpractice claim, defense counsel attempts to establish that – contrary to the claimant’s allegations – the design professional, in fact, complied with the standard of care. Obviously, it becomes very important in such a claim situation to determine what the standard of care is that applies to the conduct of the defendant design professional. Often, this is easier said than done. There is no dictionary definition or handy guidebook that identifies the precise standard of care that applies in any given situation. The “standard of care” is a concept and, as such, is flexible and open to interpretation. Traditionally, the standard of care is expressed as being that level of service or competence generally employed by average or prudent practitioners under the same or similar circumstances at the same time and in the same locale. In other words, to meet the standard of care a design professional must generally follow the pack; he or she need not be perfect, exemplary, outstanding, or even superior – it is sufficient merely for the designer to do that which a reasonably prudent practitioner would do under similar circumstances. The negative or reverse definition also applies, to meet the standard of care, a practitioner must refrain from doing what a reasonably prudent practitioner would have refrained from doing.
Although we have this ready definition of the standard of care, in any given dispute it is practically inevitable that the parties will have markedly different opinions as to: (1) what the standard of care required of the designer; and (2) whether the defendant design professional complied with that requirement. The claimant bringing a claim against a design professional typically will be able to find an expert reasonably qualified (at least on paper) who will offer an opinion that the defendant failed to comply with the standard of care. It is just as likely that the counsel for the defendant design professional will be able to find his or her own expert who will counter the opinion of the claimant’s expert and maintain that the defendant design professional, in fact, complied with the standard of care. What’s a jury to think?
The concept of standard of care is intertwined with the legal concept of negligence. In the vast majority of law suits against design professionals, a claimant (known as the plaintiff) will assert a claim for negligence against the design professional now known as the defendant.1 As every first year law student learns while studying the field of “Torts,” negligence has four subparts. In order for a defendant to be found negligent, the claimant must establish four elements: (1) duty; (2) breach; (3) causation; and (4) damages. In other words, to establish a claim against a defendant design professional, a plaintiff must demonstrate that the defendant owed the plaintiff a duty of care but breached that duty and, as a result, caused the plaintiff to suffer damages.
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Jay Gregory, Gordon & Rees Scully MansukhaniMr. Gregory may be contacted at
jgregory@grsm.com
