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Tom Dunn

This author Tom Dunn has created 35 entries.

Contractors: Its Time to Send Your COVID-19 Notice

Practice area:

The day-to-day professional and personal impact of the COVID-19 pandemic is substantial.  The global event will have dozens of common legal implications that we will address in this blog over the coming days, but for now I wanted to start with the basic starting point for any event of delay and/or additional cost on a construction project — THE NOTICE! 

The time is now to send your notice.  

This is not an adversarial notice.  Your contracting party will understand the impacts experienced and should appreciate the proactive approach in communicating the COVID-19 impacts.  If discussions have occurred between with your contracting party, I would still send a formal notice as to avoid further legal defenses down the line.  Also, providing the formal notice creates a structure that is helpful in creating a productive communication pathway regarding the delays/costs incurred and ways to mitigate them.

No matter what the legal theory, the COVID-19

City of Boston’s Press Release on Suspending Construction in Boston Effective March 17th

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Below is the City of Boston’s Press Release suspending all regular activity at construction sites in Boston as of today – March 17, 2020.  Sites need to be made safe by March 23, 2020.  Policy will be revisited in two weeks.

CONSTRUCTION SITES

Effective tomorrow, Tuesday, March 17, 2020, the City is suspending all regular activity at construction sites in Boston. Employers should maintain the necessary crews to keep their sites safe and secure, keep any materials from blowing away, and prevent trespassing. This work needs to be completed in the next week, by Monday, March 23, 2020. After sites have been secured, skeleton crews will be permitted for the remainder of this suspension to ensure safety. The only work that will be permitted moving forward will be emergency work, which will need to be approved by the City of Boston’s Inspectional Services Department.

That essential work includes:

  • emergency utility, road or building work, such as

Pierce Atwood Attorneys Attend Construction Industry Dispute Resolution Meeting in Washington, DC

Last week, John Bulman and I attended the National Construction Dispute Resolution Committee’s (NCDRC) Annual Meeting in Washington, DC. The NCDRC is an advisory committee formed by the American Arbitration Association (AAA) to engage in discussion with a wide variety of construction industry associations about the AAA Rules and dispute resolution processes generally. The American Institute of Architects (AIA) graciously hosted the meeting at its offices.

Representatives from the following organizations were present:

Condominium Mechanic’s Liens

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Mechanic’s lien claims are complex in that each state’s statutes differ dramatically.  There are certain unique issues when a contractor seeks to commence a mechanic’s lien proceeding for improvements made to a condominium.

What did you improve?

When assessing your rights under the applicable mechanic’s lien statute, focus on the property that you improved.  You are only entitled to lien the property interests for which you made an improvement.

For condominiums, there are common areas and units.  The common areas are owned by the condominium trust/association and the units are owned by the individual owners.  This year, I commenced a mechanic’s lien action on behalf of a subcontractor against a new, 10-unit condominium in Rhode Island.  My client performed improvements to the entire building — both common areas and in the units.  The general contractor was hired by the developer of the condominium. By the time final payments were not released some of the units were transferred to

The Intersection of Workers’ Compensation Immunity and Contractual Indemnity

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The workers’ compensation statute in many states provides that the workers’ compensation benefits received by an injured employee is the employee’s exclusive remedy.  The benefits are paid based on a no-fault basis and the injured employee is barred from bringing a lawsuit against his or her employer.  The degree in which the exclusive remedy provision applies varies in different jurisdictions.  An ABA 50-State Survey on the exclusive remedy provisions can be found by clicking HERE.

In many construction contracts, a contractor indemnifies an owner for personal injury and property damage caused by the contractor’s negligence.

Here is the fact scenario:  A contractor’s employee gets injured on a jobsite.  The employee receives workers’ compensation benefits but has incurred additional damages beyond those benefits.  The contractor employee cannot bring a lawsuit against the his employer based on the workers’ compensation exclusive remedy provision, but the employee may bring a lawsuit against the owner for the personal injury damages.  Owner

50-State Surveys on Architectural and Engineering Issues

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Each jurisdiction has unique requirements for design professionals.  Whereas many architects and engineers practice in multiple states, keeping track of these requirements is important.

Along with other Pierce Atwood attorneys, I contributed to two very helpful 50-State surveys published by the Division 3 (Design) of the ABA Forum on Construction Law.  Links to these surveys is below:

50-State Survey of Firm Licensure Requirements for Architectural and Engineering Firms. 

We contributed to the Maine, Massachusetts and Rhode Island sections of this survey.  In Maine, a license may only be issued to an individual — a firm may not be licensed.  There is no requirement for A/E firms in Massachusetts to register the entity, but such entities will be required to present specific information regarding persons performing professional services with the Secretary of State.  Yet, in Rhode Island, a certificate of authorization must be obtained by A/E firms to practice architecture or engineering.   There are also detailed corporate ownership composition and control

An Investigation in Sheep’s Clothing: Multilateral Development Bank “Audits”

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Enforcement actions against international construction companies have been on the rise in recent years, culminating in the headline-grabbing $3.5 billion joint U.S./Brazilian action against Odebrecht S.A. in late December 2016.  Less prominently, however, enforcement actions against construction companies by the multilateral development banks (“MDBs” – such as the World Bank and the European Bank for Reconstruction and Development) have also risen sharply, and in many cases have been putting companies out of business.  Here are some basics you should know in case you ever get a letter from an MDB saying you are about to be “audited.” 

It’s Not an Audit
The letter a company will receive launching this kind of investigation will usually say that the integrity office (as the enforcement arms are generally known) is conducting an “audit” of a particular project.  This is unlike any audit you have ever experienced – because it is actually a full-blown investigation that in many ways resembles an investigation by

Pierce Atwood Attorneys Attending Summit on Diversity and Inclusion in the Construction Industry

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Pierce Atwood Attorneys, Tom Dunn and Katie Kohm, plan to attend a first-ever summit focused on understanding the business implications of inclusion, diversity, and professionalism across the construction industry.  The meeting is a perfect opportunity for in-house counsel, risk managers, compliance managers, diversity officers, and other leaders of companies involved in the construction industry to engage in this important discussion.  The American Bar Association Forum on Construction Law is putting on the meeting in Philadelphia later this month on October 23-25th.  As can be seen in the program brochure, the topics discussed are relevant to legal and business professionals involved in the construction community.  In addition to an assessment of diversity and inclusion, topics include how those issues relate to risk management, pay equity, immigration, DBE programs, negotiations/ADR, leadership, and rules of ethics.  The program will benefit any lawyer advising companies, any labor/employment lawyer, and any in-house counsel for construction, design, insurance.

I

Taking an Out of State Deposition in Rhode Island Just Got Easier!

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On July 15, 2019, the Uniform Interstate Depositions and Discovery Act (the “Uniform Act”) was enacted in Rhode Island. R.I. Gen. Laws 9-18.1-1 et seq.  It will simplify the process of taking a deposition in Rhode Island for actions pending outside Rhode Island.  In enacting this legislation, Rhode Island joins 33 other states in adopting the uniform legislation.

Fact Scenario

You have a construction litigation matter pending in Vermont, but the architect of the project is from Rhode Island.  You want to take the architect’s deposition.  How do you go about taking the architect’s deposition?

Process Pursuant to the Previous Statute

The Vermont counsel wishing to take the deposition must provide a commission or some instruction from the Vermont trial court granting permission to take the out of state deposition.  Vermont counsel then had to retain local counsel licensed to practice in Rhode Island to commence a miscellaneous

Corporate Deposition — Multiple Witnesses At the Same Time?

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A few years ago, I represented a process piping subcontractor in a claim against the general contractor and the owner of a coal fired power plant in Massachusetts.  While the case was unique and interesting in a number of ways, some of which may be the subject of future posts, one aspect that was new for me was taking a Rule 30(b)(6) corporate deposition of two individuals at the same time.

Rule 30(b)(6) depositions are depositions of a corporation or other business entity.  It is the corporation that is testifying.  These depositions can be helpful to obtain testimony of the corporation that will be binding on the corporation at the time of trial.  They also impose an obligation to prepare and educate the individuals who testify on behalf of the corporation — to learn what information the “corporation knows” which is often beyond one person’s personal knowledge.  The corporation designates individuals to testify for the corporation on a list of topics provided by the party noticing