Originally posted 2016-07-01 09:00:07.
It seems like only yesterday that I ventured out on my own and started my solo construction law practice back in 2010. The reaction and fulfillment since I announced my move on July 1, 2010 has been great. Friends, clients, colleagues and, most importantly, my wonderful family have helped my practice grow beyond what I could have envisioned six years ago. Continue reading Six Years as a Solo Construction Attorney! How Time Flies
Originally posted 2014-11-10 09:36:15.
I’ve discussed the economic loss rule here at Musings on several occasions. The economic loss rule basically states that where one party assumes a duty based in contract or agreement, the Virginia courts will not allow a claim for breach of that duty to go forward as anything but a contract claim. This doctrine makes fraud claims nearly, though not absolutely, impossible to maintain in a construction context. In a majority of instances, fraud and construction contracts are very much like oil and water, leaving parties to fight it out over the terms of a particular contract despite actions by one party or the other that non-lawyers would clearly see as fraud.
However, a recent case decided by the Virginia Supreme Court gives at least some hope to those who are seemingly fooled into entering a contract that they would not other wise have entered into. In Philip Abi-Najm, et. al, v Concord Condominium, LLC, several condominium purchasers sued Concord under for breach of contract, breach of the Virginia Consumer Protection Act (VCPA) and for fraud in the inducement based upon flooring that Concord installed that was far from the quality stated in the purchase contract. Based upon these facts, the Court looked at two questions: 1. Did a statement in the contract between Concord and the condo buyers create a situation in which the merger doctrine barred the breach of contract claim, and 2. Did the economic loss rule bar the VCPA and fraud claims?
After analyzing the merger claim and determining that the merger doctrine did not bar the breach of contract claim, the Court moved on to its analysis of the VCPA and fraud in the inducement claims. In both instances, the Court determined that the causes of action would stand. It reasoned that the VCPA created an independent statutory requirement making it unlawful to misrepresent that goods are of a particular quality. Because this duty arose independent of the contract, the claim was not barred by the economic loss rule.
Similarly, the fraud in the inducement claim was not barred because the plaintiffs alleged that Concord deliberately misrepresented the quality of the flooring knowing that it would likely cost Concord the sales if it disclosed the actual quality of the floors. In short, the fraud, as alleged, was independent of the contract because it was conceived to bring buyers in despite Concord’s having no intention to follow through on the quality of the floors.
The lesson here is that pleading matters and that not all is lost for a consumer or home buyer that thinks that he or she is subject to fraud. However, the devil is in the details and in the details put into the pleadings. Without pleading some independent duty outside of the contract, any fraud or other non-contract claim will fail. The advice of an experienced Virginia construction attorney will help you parse through the facts and properly package them for presentation to the Court.
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Originally posted 2015-04-06 09:00:30.
Unfortunately, developer bankruptcies are very much in the news these days. This news, while unsurprising in today’s economy and given the housing issues that hit last year, can give heartburn to those contractors that perform the site work, pave the roads, and of course build the houses at these developments. Like Musings has discussed before, bankruptcy of an owner or developer is a real possibility for which contractors and subcontractors must prepare.
However, contractors in Virginia may have a silver lining for the bankruptcy cloud. Virginia mechanic’s liens, being creatures of statute, survive bankruptcy and remain in force even after the owner of the property files for bankruptcy. Even more importantly, the 6 month statute of limitations on filing a case to enforce your mechanic’s lien stops running as of the date that bankruptcy is filed.
Even more importantly, aside from certain specific situations, mechanic’s liens in Virginia gain priority over all other secured liens.
In short, in today’s climate, contractors should not feel that they are completely helpless in the bankruptcy fight. Filing a mechanic’s lien after consultation with an experienced attorney can put a contractor or subcontractor in as good a position as possible should he owner of a project file for bankruptcy.
Please comment below, or subscribe to Musings if you find this of interest.
Originally posted 2014-08-22 09:20:27.
For this weeks Guest Post Friday, Musings welcomes Matthew DeVries. Matt is the author of www.bestpracticesconstructionlaw.com, is a construction attorney in Nashville, Tennessee. He is a father of five energetic children and he often uses his family experiences to shed light on the green building, sustainable design, technology and project management issues discussed in his blog. You can reach him at (615) 742-8577, mdevries@smithcashion.com, or on Twitter: @matthewdevries.
You’ve already met my eleven year old Princess. Many months ago, I was teaching my kids about grace … undeserved merit or favor. Well, my daughter was stalling and delaying on eating her meal … by almost an hour. So, naturally, I saw this as a teachable moment.
“Honey, do you remember when we were talking about grace this week? Although you should eat all your food, I am going to show you some grace tonight. Even though you don’t deserve it, I am going to eat the rest of your chili for you.” How nice of me. I proceeded to spoon the rest of her chili into my bowl. Happy tummy!
Without skipping a beat, my inquisitive daughter asked, “Dad . . . You got any grace for my broccoli?” Nice.
While we continue to joke about that evening, I am reminded that too many times we fail to get something because we fail to “ask” for it. And when we ask for it, we sometimes fail to ask for it properly. Having litigated construction disputes for many years, the issue of entitlement often turns on whether the contractor properly submitted its claims in accordance with the terms of the parties’ contract. Whether the dispute involves a change order, delay damages, or time extension, I have litigated too many claims for additional compensation or time where: (a) the request was never made; (b) the request was not timely made; or (c) the request was not properly made.
As an attorney, I try to teach all my clients that proper documentation primarily serves as a claim preservation method—whether to provide notice of the claim or to document the claim impact. No matter the size of the project, proper documentation will eliminate a number of disputes. For example, consider the following claim provision: “Any claim for additional time must be given within seven days of the event given rise to the delay.” Best Practices would teach you to outline and highlight these types of provisions in your contract documents before you start contract performance. Make a spreadsheet with key provisions. And when one of those “events” arise, you should immediately send your letter “asking” for additional time or, at a minimum, “preserving” your right to later seek additional time and money. Don’t wait until the lawsuit or demand for arbitration before giving notice of your claim.
In other words, if you want someone else to eat your broccoli … you have to ask for it!
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Originally posted 2015-06-30 10:39:37.
Most of us perceive hazards on a construction site to be those that can be readily visualized or perhaps easily imagined, like trench cave-ins or falls from heights. These are the obvious, but what about the nocuous, microscopic hazards that can’t be seen by the human eye, but can destroy the health of your workers? Welcome to the world of hazardous materials.
The inherent danger associated with hazardous substances is workers might not be not aware of exposure. Think of a snake in the dark scenario. If it is a rattlesnake, you have warning before the bite. A cobra on the other hand gives no such warning and the bite can be fatal. So it can be with hazardous and toxic substances.
A few things to know:
1. OSHA does not use the term HAZMAT. OSHA refers to hazard materials as “hazardous and toxic substances”. HAZMAT is the term used by the DOT to refer to hazardous materials in transport.
2. Standards that can apply to hazardous substance include OSHA, EPA, RCRA, your state’s Department of Health and Environment, and if in transport to or from locations, large quantities fall under DOT and PHMSA. NIOSH has a wealth of health and safety information on work around toxic and hazardous substances.
NIOSH also provides studies of workplaces if workers or employers feel there has been exposure to hazardous and toxic substances. This work is done under their Health Hazard Evaluation Program. More information on the HHE program can be found at http://www.cdc.gov/niosh/hhe/HHEprogram.html.
3. Hazardous substances can be found in many shapes and forms including particulate, gas, vapor, mist, liquid, and dust. Workers’ exposure to toxic substances can come from inhalation, skin contact, ingestion or eye contact. This is where it is extremely important for contractor adherence to OSHA’s standards for Personal Protective Equipment. The right gloves and respirators can be life savers.
4. Identify the hazardous substances in your workplace. Lead, Asbestos, Silica, Isocynates are a few of the most common forms of toxic substances found on a construction site. Excessive exposure to any of these can result in respiratory problems, lung damage, nervous system damage and future respiratory arrest……also, don’t forget the dust on your work clothes can endanger your family’s health too.
5. Once again, remember multiple regulatory standards may apply. OSHA standards apply with a current National Emphasis Program on Asbestos, Lead and Silica. The EPA and “Your State” Department of Health also have regulations with an emphasis on Lead and Asbestos in construction. Disregards regulations on work around on any of these hazardous substances and you could be looking at fines and penalties from OSHA, EPA and “Your State” – Not to mention the potential of lawsuits from workers and possible public exposure!
6. Earthwork may involve soil contaminated with heavy metals or minerals. OSHA requires HAZWOPER training for any workers who may be exposed to hazardous substances. 24 Hour training is required for the Occasional Site Worker such as project managers or truck drivers. 40 Hour HAZWOPER training is required for those who actually have the potential to exposure while working in the contaminated soil…..when calling for training, remember HAZWOPER not HAZMAT training. We consultants can be easily confused!
7. Keep a copy of MSDS sheets at the jobsite and in the main office. Also, be sure to have a Hazard Communication Program and if need be, Respirator Program in place. Employees who require respirators for work will also need to be trained and Fit-Tested. A medical evaluation is required prior to fit-testing for all employees whose work will involve mandatory use of respirators and is suggested for those who voluntarily use elastomeric face pieces.
8. Ensure that your Emergency Action Plan is up-to-date and in place. Think BP. Need I say more? An EAP not only can protect your workers but our environment.
Work around hazardous and toxic substances can be complex and complicated. Proper planning, education and PPE will help to protect your workers from that “snake in the dark”. For more information, OSHA 29 CFR 1926 Subpart Z, Toxic and Hazardous Substances and OSHA 29 CFR 1926.65, Gases, vapors, fumes, dusts and mists.
As always Vickie and I welcome your comments below. Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.
