Seems like last week I was just celebrating one kid’s birthday and I had to do it again last night! Oh, that’s right, I have seven kids with two birthdays in September. So, it was not a dream?!?!?! Although they both got to choose their own family dinner destination, we are going to have one huge cake this weekend…with tons of icing!
Owners in Tennessee are celebrating a new law recently passed because they may get their icing, too! The new statute, signed into in May 2018, immediately created a cause of action providing for remedies for the successful challenge of the validity of a lien against a property. Under the new law, Tennessee Code Section 66-21-108 provides a description of the “icing” that the owner may recover:
[A] real property owner who prevails in an action challenging the validity of a lien, including in a slander of title proceeding, shall recover:
(1) The owner’s reasonable attorney’s fees;
(2) Reasonable costs incurred by the owner to challenge the validity of t..
On Saturday, I took the kids to the zoo for a day-long adventure. Faith’s favorite attraction was the turtle compound that was filled with about 20 slowpokes walking a circle. Like watching paint dry, we sat on the sidelines as these mini-dinosaurs trekked the park at a whopping .25 mph.
When we think of delays on a construction project, the first inquiry is to identify the turtle—the one party holding up progress or causing the delay. Many times, the parties’ contract will dictate whether the contractor can recover delay damages or will be limited to a time extension for delays beyond the contractor’s reasonable control. In Perez-Gurri v. McLeod, 238 So.3d 347 (Fl. Ct. App. 2018), the court examined whether a “No Damages for Delay” clause extended to parties other than the owner.
The general contractor in McLeod filed a malpractice action against the architect on a public contract for the City of Miami. The renovation project was located in the Caribbean Marketplace in an area known..
After a great extended weekend on the beaches of Florida, we embarked upon the drive back to Nashville with six kids. Despite the clearly defined travel rules, the antagonizing kid was putting his feet on the emotional kid. The creative kid was writing on the seat with markers, while the perfect kid screamed foul. The lazy teenagers slept. Mom and dad were triggered for eight hours.
Many Tennessee contractor’s have felt the same way with the changes in the licensing laws over the past few years. The rule relating to the effect of a contractor who exceeds its licensing limit is now clear based upon the decision in Clayton Pickens v. John R. Underwood (Tenn. Ct. App. June 12, 2018). In that case, the dispute was whether the “old law” or the “new law” applied. Here’s how it went down:
On June 2, 2008, contractor entered into an agreement with owner to construct house for $572,000, but at the time the contract was signed the contractor’s license limit was $350,000.
Under the prior versio..
Last week during family skate night, my daughter asked me for two quarters to play some Skee-Ball. I loved playing that game as a kid. But imagine my surprise when I turned the corner and witnessed her active interference with the rules of the game! (… Truly, you can’t script this stuff…)
In construction contracts, “active interference” is a recognized exception to the enforcement of what is known as a “no damages for delay” clause. This type of provision seeks to preclude any increased costs associated with delays on the project. For example, a traditional clause may read as follows:
“No claims for increased costs, charges, expenses or damages of any kind shall be made by the Contractor against the Owner for any delays or hindrances from any cause whatsoever; provided that the Owner, in the Owner’s discretion, may compensate the Contractor for any said delays by extending the time for completion of the Work as specified in the Contract.”
* * * * * *
“Should the Contractor sustain ..
Contractors make mistakes with words. Contractors make mistakes with numbers. And sometimes, a mistake with words leads to a mistake with numbers.
In Clark Construction Co. v. Alabama Highway Department, a highway contractor tried to withdraw its bid on public contract and have its bid bond returned after it made a mistake on a its written proposal. In its bid submission for a bridge construction project in Mobile County, the contractor had listed a total bid amount of $1,119,609. On a particular line item for Steel Bridge Superstructure, the contractor listed the amount of “$368,000” in numerical value, but had the words “Three Hundred Sixty Eight” immediately before the word “Dollars.” The contractor mistakenly left out the word “Thousand” from its written bid.
During the bid review, the Alabama Highway Department used the written words to calculate the total bid, as required by statute. Alabama Code Section 39-2-7 provided: “In case of a discrepancy between prices shown in the fig..
Today’s guest post is by Chris Meyers and Cheri Gatlin, two of my fellow partners at Burr & Forman, LLP. Chris is a partner and Cheri Gatlin is Chair of the firm’s Construction and Project Development Practice Group. The Group counsels clients throughout the U.S. on safety policies, OSHA and regulatory compliance, contracts, disputes, and all areas where law and construction intersect.
“To err is human; to forgive divine.” – Alexander Pope, “An Essay on Criticism.”
Last week marked the end of Construction Safety Week 2018, a combined effort by the Construction Industry Safety (CISI) group and the Incident and Injury Free (IIF) CEO Forum. Together these entities are comprised of 80 national and global construction firms, with a goal of promoting safety in the construction industry. Concern for safety is apparent on construction projects throughout the country and world, as evidenced by daily/weekly construction briefings and the familiar “___Days Since a Lost Work Accident” signs. Peo..
We live in a world of e-mails, IMs, texts, Snapchats, Instagrams and the occasional fax. Although information is transmitted instantaneously in today’s environment, proof of receipt of that information (often called “Notice”) remains subject to some very strict rules imposed by contract, case law or statute.
Notice of Claims. In a recent transportation case involving a personal injury, Department of Transportation v. Jones, the Court of Appeals of Georgia explained the importance of strict compliance with certain notice provisions. The plaintiff was injured in a single-car accident on State Route 42 and he sued the Georgia Department of Transportation (“GDOT”). The plaintiff claimed that GDOT’s improper maintenance of the roadway led to an accumulation of water, which caused his truck to hydroplane into a tree, severely injuring him. GDOT filed a motion to dismiss, arguing that the plaintiff failed to strictly comply with the notice provisions of the Georgia Tort Claims Act (“GTCA”). ..
I forgot how much fun it was playing family board games as a child. We recently dusted off some of the oldies like Sorry, Life and Monopoly to play with the kids. I laughed uncontrollably the first time I got to say, “Go directly to jail. Do not pass GO. Do not collect $200!”
A contractor in North Dakota wasn’t laughing when it was not allowed to pass “Go” and could not immediately collect its $200,000 for work performed. In Snider Construction v. Dickinson Elks Building, LLC, the court held a contractor was not entitled to recover for labor and materials during a time period when the contractor was unlicensed. There, the out-of-state contractor entered into the construction contract on December 26, 2011, but did not get its contractor’s license until February 5, 2012. The contractor later filed a lien for approximately $200,000. The trial court awarded the contractor its claim for damages, and the owner appealed.
On appeal, the owner argued that North Dakota Code requires a contract..
Sometimes, we avoid doing bad things because of the risk of getting caught. Other times, we avoid doing bad things because we simply choose to do right things. Whatever the camp you fall into, a recent government contracts case tells a story that should be avoided when submitting payment applications to the government.
In U.S. ex rel. Jesse Sloan v. Waukegan Steel, LLC, an employee brought a False Claims Act (FCA) against his employer for false billing and certification on a goverment project. The Attorney General has primary authority for enforcing FCA, but the law includes what is called a qui tam provision, which permits a private party to bring a civil action alleging fraud against the Government on its own behalf as well as on behalf of the United States. 31 U.S.C. § 3730(b). If the private party prevails, he receives a percentage of the recovery. 31 U.S.C. § 3730(d).
Waukegan was responsible for fabricating and installing the structural steel of project. The design specificatio..
Last weekend we played Speak-Out: Kids versus Parents, a game where you use a plastic thingy to obstruct your speech capabilities. The winning team is the one that guesses the most phrases. Reading and understanding an insurance policy on a construction project can be a lot like understanding my kids playing Speak Out.
Proper insurance coverage is an important risk management tool for contractors, subcontractors, project owners/developers and design professionals. Whether you are required by contract or law, purchase and maintaining the appropriate coverage can help you avoid catastrophe on your project. Since there are so many types available, it is important to understand what is being covered…and what is not.
This was a hard lesson learned by a contractor recently in Vivify Construction v. Nautilus Insurance Co., a recent decision issued by the Appellate Court of Illinois. In that case,..