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APPRECIATE THE RISKS YOU ARE ASSUMING IN YOUR CONTRACT

Posted on 16 November, 2019
APPRECIATE THE RISKS YOU ARE ASSUMING IN YOUR CONTRACT.   Otherwise, those risks will come back and bite you in the butt.  This language is not capitalized for naught.  Regardless of the type of contract you are entering into, there are risks you will be assuming.  You need to...

FILLING OUT THE CONTRACTOR’S FINAL PAYMENT AFFIDAVIT

Posted on 9 November, 2019
When preparing a contractor’s final payment affidavit, I always suggest for a contractor (or anyone in privity of contract with the owner) to identify the undisputed amounts their accounting reflects is owed to ALL subcontractors, etc., regardless of whether that entity preserved their lien rights.  If the contractor provided a payment...

INSURER’S DUTY TO INDEMNIFY NOT RIPE UNTIL UNDERLYING LAWSUIT AGAINST INSURED RESOLVED

Posted on 3 November, 2019
A liability insurer has two duties:  1) the duty to defend its insured; and 2) the duty to indemnify its insured. With respect to the second duty – the duty to indemnify – this duty is typically “not ripe for adjudication unless and until the insured or...

SERVING NOTICE OF NONPAYMENT UNDER MILLER ACT

Posted on 27 October, 2019
Under the federal Miller Act, if a claimant is NOT in privity with the prime contractor, it needs to serve a “notice of nonpayment” within 90 days of its final furnishing.   In this manner, 40 U.S.C. 3133 (b)(2) states:  

A person having a direct contractual...

DELAYS CAUSED WHEN GOVERNMENT (OWNER) PUSHES CONTRACTOR’S WORK INTO RAINY / ADVERSE WEATHER SEASON

Posted on 12 October, 2019
There are a number of horizontal construction projects where a contractor’s sequence of work and schedule is predicated on avoiding the rainy season (or certain force majeure events).  The reason is that the rainy season will result in delays due to the inability to...

PERFORMANCE BOND SURETY TAKEOVER – USING TERMINATED CONTRACTOR TO COMPLETE THE WORK

Posted on 5 October, 2019
When a contractor is defaulted under a performance bond, can its surety hire the same defaulted contractor to complete the work?  Stated differently, can the performance bond surety engage its defaulted bond-principal in taking over and completing the same work the contractor was defaulted under?   The answer is...

CONSTRUCTION LIEN DOES NOT INCLUDE LATE FEES SEPARATE FROM INTEREST

Posted on 28 September, 2019
Construction liens can include unpaid finance charges.   But, what about late fees?  You know, the late fees that certain vendors like to include in their contract or purchase order unrelated to finance charges.  An added cost for being delinquent with your payment.  Can a late fee be tacked...

GOOD-TO-KNOW POINTS REGARDING (I) MILLER ACT PAYMENT BONDS AND (II) PAYMENT BOND SURETY COMPELLING ARBITRATION

Posted on 22 September, 2019
Every now and then I come across an opinion that addresses good-to-know legal issues as a corollary of strategic litigation decisions that are questionable and/or creative.  An opinion out of the United States District Court of New Mexico, Rock Roofing, LLC v. Travelers Casualty and Surety Company of America, 2019...

PROVING IMPACTS TO CRITICAL PATH TO DEFEAT LIQUIDATED DAMAGES ASSESSMENT

Posted on 15 September, 2019
When a contractor is staring down the barrel of an owner’s assessment of liquidated damages, the burden will fall on the contractor to establish that the delay was attributable to the owner and the owner’s agents.  The contractor will want to do this not only to defeat the...

GENERAL CONTRACTOR SUPPORTING A SUBCONTRACTOR’S CHANGE ORDER ONLY FOR OWNER TO REJECT THE CHANGE

Posted on 8 September, 2019
The opinion in Westchester Fire Ins. Co, LLC v. Kesoki Painting, LLC, 260 So.3d 546 (Fla. 3d DCA 2018) leads to a worthy discussion because it involves a common scope of work occurrence on construction projects involving a general contractor and subcontractor.  The contractor submits a subcontractor's change order request...
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