Reminder: In Court (as in life) the Worst Thing You Can Do Is Not Show Up

The Judicial Duel. The Plaintiff opening his C...
(Photo credit: Wikipedia)

As long time (and possibly recent) readers of Construction Law Musings know, I am a Virginia Supreme Court Certified Mediator.  In that capacity, I spend quite a bit of time sitting in general district court courtrooms in places like Goochland and Caroline Counties “court sitting” awaiting a referral from the judge of a case with parties ready and willing to take advantage of the mediation process.

As I sit there wearing my mediator “hat,” I see case after case be called for the first return date.  Without fail, several cases are called where the defendant fails to appear after being served with process.  There are even a case or two where the plaintiff (the party that picked the return date in the first place) fails to appear.  In the first instance, where the defendant doesn’t appear, the judge almost inevitably enters a judgment for the amount sued for by the plaintiff.  In the latter instance, the case is dismissed without prejudice to the plaintiff with a shake of the head by the judge at the wasted time and filing fee.  This post focuses on the first case.

As I said previously, if the defendant fails to appear, the Court enters a judgment by default, taking everything the plaintiff says as true.  This means that the defendant doesn’t get a chance to tell his or her story.  The defendant is stuck with whatever the plaintiff says happened, whether the defendant would agree with the plaintiff or not.  Even m ore damaging for the defendant that does not appear, that defendant doesn’t get notice that a judgment was entered, likely until the collection paperwork shows up at their home or place of business, and by that time it’s too late and a court won’t discuss the merits of the case, just whether the judgment was entered. Throw in the fact that failure to appear generally precludes settling or taking advantage of your friendly neighborhood mediator, and the situation looks even worse.

In other words, if you are served with papers, you should appear in court even if you agree at least in part that you’re liable for the damages.  By appearing, you open up possibilities from mediation to trial to a payment plan.  Failure to appear only results in one possible outcome, judgment.  If you appear, your local construction (or other specialized) attorney can help you out.  If you don’t, there is little or nothing he or she can do to help.

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Reminder: In Court (as in life) the Worst Thing You Can Do Is Not Show Up

Preventing Acts of God: Construction Accidents Caused by Outside Factors

For this week’s Guest Post Friday here at Musings, we welcome back Seth Smiley. Seth, a native of Baton Rouge, is the owner of Smiley Law Firm. He is admitted to practice in all state and federal courts in Louisiana and California. Seth Smiley is the son of a general contractor, and acquired valuable work experience in the construction industry prior to entering law school. He earned his J.D. from Loyola, New Orleans in 2009. In his practice, Seth handles all aspects of construction cases, from initial contracting all the way to final payment once work is complete. Other areas of focus include commercial lease disputes, personal injury, business formation, and insurance property damage claims. Seth loves to fight insurance companies. Seth is currently the primary author of the Smiley Law Blog. The blogs primary focus is to provide value for current and prospective clients regarding trending legal issues in which the attorneys at Smiley Law Firm cover.

There are several factors a construction team can control on a job site. The foreman can ensure scaffolding is secure and that all employees are properly trained, and all workers can take steps to ensure a reasonably safe work site. Accidents can and will happen despite the best efforts of those involved. According to a recent poll of more than 100 published studies, the most common factors in all construction site accidents include:

  • Problems involving the workers or work team, e.g., lack of training, inexperience, termination or resignation of work site lead;
  • Workplace issues related to the nature of or design of construction site;
  • Defective or lackluster condition of equipment or materials;
  • Issues with risk management.

Some construction site accidents, however, are simply the result of “acts of God.” They involve factors beyond our control or seemingly beyond our prevention. Examples might include accidents inadvertently caused by weather. If you incurred an injury on a construction site through no one’s fault, what are your options to obtain compensation? Can the construction team take steps to prevent these accidents in the future?

Possible Recourse for Injured Workers

Thankfully, the workers’ compensation system exists for situations like these–when a worker sustains a serious injury on the job and no one seems immediately at fault. The workers’ compensation program is a no-fault system. This means that injured workers don’t have to prove that their employers were at-fault for the injuries before collecting benefits.

However, in some circumstances, collecting benefits could ultimately forfeit any rights an employee may have to sue for additional damages, such as pain and suffering. There are ways to collect for pain and suffering, but there needs to be an additional at-fault party.

An investigation might yield that even an act of God is preventable depending on the scenario. For example, a construction foreman might not be able to stop the rain, but he or she can cease work operations until safe working conditions are restored.

The law offers certain protections to construction teams who cannot meet their deadlines due to inclement weather–it’s called a force majeure clause, and it makes it harder for a client to sue or refuse payment for breach of contract.

Force majeure means “superior force” and refers to elements that may delay a project that are out of a construction team’s control. Adding one of these clauses is a simple, yet effective way to keep employees safe from the dangers of working in inclement weather.

Preventing the Impossible

Preventing accidents due to outside factors seems profoundly hard, but there are a few steps team leaders can take to prevent accidents. Consider adding these factors to your construction risk mitigation strategy:

  • Create a comprehensive list of risks, rank them, and decide how you’ll deal with them.
    • You might choose to avoid a risk of injury by refusing to work under certain conditions or in accident-prone areas.
    • Obtain appropriately comprehensive insurance.
    • And mitigate risks you can control by using proper safety equipment for heights, carcinogens, toxic materials, and excessive noise and vibration.
  • Get everyone involved.
    • Construction risk management doesn’t exist in a vacuum. Everyone on the team must understand and contribute to your risk management strategy.
    • Communicate with frequent updates and review possible risks regularly at all levels of the operation. Timely, constructive reminders can go a long way in preventing injury, including those due to acts of God.

Despite your best efforts, some construction site injuries aren’t preventable. That’s why the workers’ compensation system exists. Apply these strategies to minimize your team’s risk of injury as much as possible.

Do what you can to reduce both the likelihood and severity of workplace injuries to put your team in the best position to execute your project successfully. For more information on subjects relating to the construction industry and construction injury, please contact the attorneys at the Smiley Law Firm for a more detailed analysis.

Seth and I welcome your comments below.  Also, please subscribe to keep up with this and other Guest Post Friday Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 license.

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Preventing Acts of God: Construction Accidents Caused by Outside Factors

Happy Labor Day from Construction Law Musings

English: family vacation summer 2007
English: family vacation summer 2007 (Photo credit: Wikipedia)

As summer ends and the start of school begins in many places, it is a good time to reflect on the family time that summer vacation allows.  For me it is hard to believe that starting tomorrow, my youngest of 3 is headed to high school and my older two are both now in college.  I hope that those of you with another “first day of school” get a chance to rest a bit and enjoy this final day before the hectic school days are upon you.

Here’s wishing you all a wonderful, relaxing, and fun filled Labor Day (unlike whoever needed the sign to the left!) from Construction Law Musings.

If you find this Musing to be interesting and have a comment, please join the conversation below and subscribe to keep up with the latest information.

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Happy Labor Day from Construction Law Musings

Talking Mediation at AEC Forensics

Thank you to my friend and relatively frequent guest poster here at Construction Law Musings, Brian Hill (@aecforensics) for letting me invade his great blog on risk management and best construction practices, AECforensics.com, and talk about one of my favorite topics, mediation.  As I have said on many an occasion, mediation is often the most efficient and cost effective way out of a bad situation (read: construction claim).  I share these thoughts in more depth over at Brian’s blog.

Here’s a taste:

Whether your dispute is big or small, has to do with interpretation of your, hopefully well drafted, construction contract or the allegedly poor quality of the work, or any other reason why a payment dispute (and in commercial construction, it is always some form of payment dispute), mediation is almost always a good option.  Remember, litigation and arbitration are expensive and even if you win, your construction business will take a hit, mainly because you cannot and should not budget for litigation (I mean, really, everyone should just do the right thing, correct?).

For the rest of my thoughts, head on over to AEC Forensics and read the full post here.

If you find this Musing to be interesting and have a comment, please join the conversation below and subscribe to keep up with the latest information.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 license.

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Talking Mediation at AEC Forensics

Project Documentation: The Bad Little Email That Got Produced

Believe it or not, there are always a wealth of emails and other documents produced in litigation that help “make the case” for the other side. Take, for the example, the e-mail I found in the files of one superintendent entitled “PROJECT DELAYS” … the words could not have been clearer … “I think we need to begin to tell management that we are late.  We also need to consult the claims team to determine how late we really are.

On another case, I found this nugget: “Although we should give them notice of this claim, let’s wait until our equipment has left the port on their vessel before telling them.

Best Practices advises that you should have a written document management policy in place.  This policy should define and describe the role of the following:

  • Critical project documentation, such as correspondence, meeting minutes, daily reports and logs, calendars and diaries, accounting records, submittals, schedules, photographs, etc.
  • Non-critical documentation, such as personal emails, instant messages, text logs, blog trails, website traffic logs, etc.

The advent of project management software and web based platforms (i.e., Procore, Microsoft Dynamics, buildertrend, planswift, PlanGrid, e-Builder ) have enhanced document control by allowing the user to track revisions, store master files, and streamline the review process.  However, the human element is still involved.  Any policy must set appropriate boundaries and guidelines for the following:

  • Personal use of email (…a good place to find “mismanagement” emails…)
  • Use of profanity (…I always search for the juicy four-letter words…good emails…)
  • Risks of informal communications (…see emails above…)
  • And, of course, a document retention policy (…don’t shred right after lawsuit is filed…)

Failure to formulate a policy that addresses these simple areas almost guarantees that the bad little email will get created and produced.

Project Documentation: The Bad Little Email That Got Produced

Project Documentation: The Bad Little Email That Got Produced

Believe it or not, there are always a wealth of emails and other documents produced in litigation that help “make the case” for the other side. Take, for the example, the e-mail I found in the files of one superintendent entitled “PROJECT DELAYS” … the words could not have been clearer … “I think we need to begin to tell management that we are late.  We also need to consult the claims team to determine how late we really are.

On another case, I found this nugget: “Although we should give them notice of this claim, let’s wait until our equipment has left the port on their vessel before telling them.

Best Practices advises that you should have a written document management policy in place.  This policy should define and describe the role of the following:

  • Critical project documentation, such as correspondence, meeting minutes, daily reports and logs, calendars and diaries, accounting records, submittals, schedules, photographs, etc.
  • Non-critical documentation, such as personal emails, instant messages, text logs, blog trails, website traffic logs, etc.

The advent of project management software and web based platforms (i.e., Procore, Microsoft Dynamics, buildertrend, planswift, PlanGrid, e-Builder ) have enhanced document control by allowing the user to track revisions, store master files, and streamline the review process.  However, the human element is still involved.  Any policy must set appropriate boundaries and guidelines for the following:

  • Personal use of email (…a good place to find “mismanagement” emails…)
  • Use of profanity (…I always search for the juicy four-letter words…good emails…)
  • Risks of informal communications (…see emails above…)
  • And, of course, a document retention policy (…don’t shred right after lawsuit is filed…)

Failure to formulate a policy that addresses these simple areas almost guarantees that the bad little email will get created and produced.

Project Documentation: The Bad Little Email That Got Produced

Construction Contracts And Arbitration Provisions: Is The Word “May” Mandatory? Maybe!

You don’t always say what you mean. And you don’t always mean what you say.  In construction contracts, parties attempt to use plain and ordinary words to describe their respective obligations.

As an example, when the parties use the word “shall” in their agreement, they generally understand that the obligation specified is mandatory. Or when parties use the word “may” in their contract, performance is permissive or optional given the plain meaning of the word. Consider the following construction contract provisions:

“If the Owner fails to make payment for a period of 30 days, the Contractor may, after seven days written notice, terminate the Contract and recover from the Owner payment for Work performed.”

“The Work may be suspended by the Owner as provided in Article 14 of the General Conditions.”

“Payments may be withheld on account of (1) defective Work not remedied, (2) claims filed by third parties, or (3) failure to carry out the Work in accordance with the Contract Documents.”

In all of theses examples, it seems clear that the parties agreed to allow—but not require—the specified performance. The word “may” was permissive in nature.

According to some courts, however, this traditional line of reasoning is no longer the trend in the context of arbitration provision in construction contracts. For example, in TM Delmarva Power v. NCP of Virginia, the Supreme Court of Virginia held that the parties’ use of the word “may” in the dispute resolution provisions of their construction contract required mandatory participation in arbitration at the election of one of the parties. The arbitration agreement provided:

“If any material dispute, disagreement or controversy concerning this Agreement is not settled in accordance with the procedures set for in [previous section] . . . then either Party may commence arbitration hereunder by delivering to the other Party a notice of arbitration.”

The court held that the above provision was mandatory at the election of one of the parties: “The word ‘may’ . . . means that either party may invoke the dispute resolution procedures, but neither party is compelled to invoke the procedures. . . . [But] once a party invokes the arbitration provision, the other party is bound to arbitrate.”  The Delmarva court reasoned that the disputes provision would be “rendered meaningless” if the word “may” was interpreted as permissive because parties to a commercial contract can always choose to submit their disputes to arbitration.  The Fourth Circuit reached the same decision in United States v. Bankers Ins. Co.

Given the trend that the courts have interpreted the term “may” as “shall” in the context of arbitration agreements, parties to a construction contract must be careful in understanding both the plain, ordinary meaning and the legal meaning of the particular words used. In the above examples, if the parties wanted arbitration of disputes to be permissive and non-mandatory, they could have clarified their contract by including more explicit language (i.e., “any and all disputes,upon mutual agreement, may be arbitrated” or “with the consent of the other party, either party may commence arbitration”).  It is important in contract drafting that you say what you mean and you mean what you say.

Construction Contracts And Arbitration Provisions: Is The Word “May” Mandatory? Maybe!