A Great Time at the 38th Annual Construction and Public Contracts Law Seminar

English: This is a locator map showing Charlot...
English: This is a locator map showing Charlottesville in Virginia. (Photo credit: Wikipedia)

This past weekend, I had the pleasure of attending the 38th Annual Construction and Public Contracts Law Seminar at the Boar’s Head in in Charlottesville, Virginia.  It seems like not that long ago I was going to my first of these in 2008! This year, like last, I had a great time planning the seminar and in the process meeting many of the great speakers that provided their insights into topics from gun safety at the workplace to employment facts every contractor should know to the basics of performance bonds.  All in all, this “grab bag” of topics seemed to provide something for everyone, whether an experienced construction attorney or someone new to construction law.

Aside from the great information that was provided (not to mention the full compliment of MCLE credits necessary for the 2017-18 bar year here in VA), the various events and opportunities to meet with other construction law practitioners always provides a wonderful opportunity to catch up with old friends, meet new ones and “pick the brains” of some of the best construction law minds here in Virginia.  Whether at a dinner with my colleagues on the board of the Construction Law and Public Contracts section of the state bar, or simply hanging out at a cocktail hour and getting to know each other better, the contacts and “boots on the ground” discussions only served to remind me of the collegial nature of the construction bar here in Virginia.

All in all it was a great time as it has been for the 10 years I have attended the conference.  To those who attended, be sure to attend again on November 2 and 3, 2018.  To those construction lawyers in Virginia (or even those that are just interested in learning a think or two) that did not attend, I highly recommend that you attend next year.

Without further ado, thanks to all of those that took the time to speak with me.  I always enjoy catching up with old friends and especially making new ones.

Please join the conversation with a comment below.  Also, I encourage you to subscribe to keep up with the latest Construction Law Musings.

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A Great Time at the 38th Annual Construction and Public Contracts Law Seminar

Why You May Not Want a Mandatory Mediation Clause in Your Construction Contract

A simple statistical mediation model.
A simple statistical mediation model. (Photo credit: Wikipedia)

I know, you are likely surprised by the title of this post.  You’ve read Construction Law Musings for a while now and know that as a Virginia Supreme Court certified mediator, I have advocated mediation as a great way to resolve your construction disputes short of the expensive and time consuming litigation process. Knowing all of this, you as a reader of this blog (thanks by the way) probably wonder why I think that a mandatory mediation clause may not be the best thing for your construction contracts.  I can understand your possible confusion (particularly in light of this post from @sethsmiley).

Please don’t take the headline as my suddenly taking a new view of mediation.  Short of simply resolving the dispute between the parties to the construction contract, mediation still remains number one on my list of construction dispute resolution mechanisms.  I still believe that it is useful even when a resolution is not met after a good faith attempt by both sides to come to a business agreement.  However, I also believe that mediation works best when entered into voluntarily by the parties.

In short, I’m not sure that mandatory mediation, where the parties are forced to mediate, is the most efficient way to have the mediation process work.  In my work as both a mediator and a Virginia construction attorney I have too often seen parties forced to mediate as a pre-condition to moving on to court or arbitration simply come to the table with the attitude that they simply wish to “check the box” and move on to what they at least thought they wanted to do in the first place, get on with the lawsuit.  This attitude is not conducive to a successful mediation (with success defined as an agreement or significant movement toward one).  I find that where parties to a contract are forced to come to the table, as opposed to choosing to do so, they are less likely to say yes and less likely to listen to the issues raised by the other side and the mediator.  Having one foot out the door is not a great way to negotiate.

So to sum up my views:  Should parties mediate in almost every case?  Yep.  Should they choose this as a great dispute resolution alternative?  Of course.  Should they be forced to do so by contract when they may not be ready or willing to truly embrace the process?  I’m not so sure.

I’d love to hear other thoughts on mediation and whether is should be required by terms of a construction contract.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

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Why You May Not Want a Mandatory Mediation Clause in Your Construction Contract

Addressing Safety on the Construction Site

Originally posted 2013-11-01 09:00:19. Republished by Blog Post Promoter

Patrick's HeadshotFor this week’s Construction Law Musings Guest Post, we welcome a new face, Patrick Rafferty.  Patrick (@ThePraff) is a consultant for Brahman Systems and has an interest in construction safety.

First of all, I’d like to say that I am not an attorney. Anything I say in this article should be taken with a grain of salt. All of the information that I have written in this article comes from personal work experience on the worksite.

Each year, construction sites around the nation see hundreds of thousands of injuries related to equipment operation and situations that could be avoidable with the right precautions in place. In 2011 alone, according to the Occupational Safety and Health Administration, there were 4,069 workers killed on a construction site, most of which were avoidable. Though some sort of on-site problems are unavoidable, they can be minimized with simple practices that every construction site should have in place, whether it is the building of a high-rise building or a simple house renovation.

Here are some of the most common issues that lead to injuries on the construction site:

Lack of training

Before anyone steps onto a construction site, they need to have a thorough understanding of not only what they will be doing, but also how to use the equipment involved in the building process. All operators of heavy machinery should have verifiable training on the machine or equipment they will operate. Most equipment dealers offer training as part of their customer service, such as usage manuals, videos and quizzes. Once these are complete, many will offer a certificate of completion at the end of the process. The larger and more complex the machine, the more time should be allotted for training.

Getting on and off Equipment

According to the OCHA, getting on and off of heavy machinery was the number one cause of injury to equipment operators in 2011. If you ever talk to a construction worker, more often than not they will have a story about some “freak” accident they encountered while using heavy equipment. And more often than not, these are not “freak” accidents, but rather due to a lack of precaution. There are simple steps that can be put in place to prevent these instances. First of all, check your equipment and make sure it is suitable for the task at hand. Make sure said equipment has been wiped clean of any dirt or residue and ensure that the traction is solid enough. Also, avoid objects while climbing.

Overhead/ Buried Obstructions

Before building anything, be aware of any overhead or buried obstructions. This includes any underground utilities, electrical lines or gas and sewer pipes. A simple phone call to your local utilities service will ensure that you are in the clear, and can prevent thousands of dollars in unexpected damages, and even more importantly, a worksite injury.

Loading and Unloading Equipment

It seems like an issue arises during every part of the construction site, and loading and unloading is no different. Even on level ground, problems can arise that lead to injury. Ensure that there is enough room to maneuver the machine around the loading dock, which often requires a spotter for guidance. Make sure that the machine clears the ramps before turning, and avoid any crowding in the area. Use proper tie-down procedure, and be sure to use safety tie wires to make sure nothing comes out of place.

Knowing Your Limits

For some people, this might seem redundant to even read, but it cannot be stated enough. It is imperative to know your limits, as well as the limits of others around you. If you are ever asked to do something out of your capabilities, tell your supervisor or someone you work with. You should never feel pressured to perform a task outside of your expertise, nor should your supervisor ask in the first place.

Construction injuries are nearly inevitable, and most likely never will be. Though this is the case, we have come a long way in terms of construction site safety. Since 1970, construction related fatalities have been reduced by 65 percent, and with a little bit of hard work and ingenuity, this trend is bound to continue.

As always, Patrick and I welcome your comments below.  Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

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Addressing Safety on the Construction Site

Contractors and Force Majeure: Contractual Protection from Hurricanes and Severe Weather

This week’s Guest Post Friday here at Musings welcomes back Clay Olsen.  Clay is is an attorney at Harper Whitwell PLLC.  The firm is located in Mississippi and South Carolina where they routinely represent the interests of construction.

This season is not special as hurricanes are a part of life on the east coast and gulf shores. From New York to Louisiana, just about every state has seen massive property loss from hurricanes during the past ten years.

We often see harsh outcomes for those on the coast living in finished homes. What happens to the unfinished and current projects awaiting completion? If you’re building on the coast, take a look at all of the following risk aversion mechanisms:

  1. Builders Risk Insurance is necessary as is Coverage for named storms. Be sure to review the “excluded perils” or speak to your agent as hurricane coverage best not be omitted.

Once you begin reviewing your current policy or engaging your agent, be sure to check for determination as to the extent of coverage for named storms. Your coverage should be reviewed for property and materials coverage, delay costs, and other particulars.

  1. Force Majeure clauses are certainly familiar to you if you’re reading this. In your contract, there is no reason to rely on a generic definition. Include language which states hurricane, named storm, tropical storm etc within the force Majeure clause while making sure to include language “including but not limited to: hurricanes, severe tropical weather…”. Should you be forced to duke it out with the customer in a residential or commercial setting, you shall be well ahead of the game and might avoid a dispute over damages for delay or other contractual non-performance.
  2. Force Majeure Contingency allocation. Since funds are typically withheld or placed on deposit for contingent events, you might well consider placing specific language entitling you to change order rights and other monetary backing to finish your job in a quality and timely manner.
  3. Payment for Storage and Protection is a key consideration during a high impact storm. This should be included in your contract because the owner will deserve to have high cost materials shielded from the elements. Your contract should include a payment contingency for this as well as an accurate calculator.
  4. Speak to your lawyer. If you have questions about this or other contractual issues, call your attorney and have a consultation.

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

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Contractors and Force Majeure: Contractual Protection from Hurricanes and Severe Weather

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.

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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