R. Thomas Dunn

  • September 24, 2021

Excellent Training Opportunities on Core Concepts of Construction Law and Construction Fundamentals

Construction Training/Education
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Many of us in Pierce Atwood’s Construction Law team are active members of the ABA Forum on Construction Law.  The Forum provides excellent business development, networking, and educational opportunities for its 5,000+ members. If you want to learn more, please contact me (rtdunn@pierceatwood.com).

I wanted to highlight one unique program that is happening at the end of this month. In my 10+ year history with the Forum, this opportunity has not arisen for attorneys interested in learning about or developing a practice in construction law.  On September 30th and October 1, the Forum is offering the following two programs in six locations (Boston, Chicago, Denver, Los Angeles, Nashville, Seattle) throughout the country and on a virtual basis:

  • Fundamentals of Construction Law – core concepts of the practice of construction law including topics on bidding, scheduling, differing site conditions, changes, termination, insurance, bonding, payment, and dispute resolution.
  • Sticks & Bricks – construction overview
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  • September 23, 2021

Rhode Island’s Amended Joint Tortfeasor Causes Increased Certainty in the Settlement of Multi-Party Negligence Matters

Litigation, RI Statute Update
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Anyone who has handled tort claims in Rhode Island, including personal injury and negligence matters, knows that the resolution of these claims is complicated by the presence of multiple defendants.  These complications come by way of parties arguing for differing levels of responsibility—if any, conflicting theories of defense, and the classic “deep pocket” defendant who is often asked to carry the weight of the “judgment-proof” one.  Handling these claims was not made any simpler or less confusing by reviewing Rhode Island’s previous version of its enactment of the Uniform Contribution Among Tortfeasors Act, G.L. 1956 § 10-6-1 et seq.; however, recent amendments have made Rhode Island’s law more consistent with liability practices in other states.  This should make handling tort claims in Rhode Island more familiar to construction companies, insurance carriers, and their legal counsel.

The law recently changed with the passage of two bills through both houses of Rhode Island’s General Assembly, which became effective July 14, 2021.  In short, after these

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  • August 11, 2021

Intentional Deletion and Manipulation of Electronic Data Leads to Default Judgment

Discovery, Litigation, RI Case Law Update, Sanctions
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Every day we are reminded that we live in a digital world by looking down at our smartphones and logging onto our computers. Though the legal field is generally slow to jump on the bandwagon of new technology, the use of technology has crept its way into the discovery process, where the production of information commonly comes from electronic sources. As easily as this information can be obtained and stored on our devices, it can also be deleted. Thus, it is extremely important that parties involved in litigation be aware of the consequences that stem from failing to preserve electronically stored information. Recently, a defendant in a case involving fraud and conversion was made painfully aware of these consequences by having a default judgment entered against it for intentionally deleting electronically stored information prior to handing it over to the plaintiff during discovery.

In its complaint, Atalian brought claims against several defendants alleging fraud and conversion. During discovery, Atalian filed a motion for sanctions against

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  • April 12, 2021

Highlights from the AAA’s New Publication on Discovery Best Practices

ADR, Discovery
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The American Arbitration Association (“AAA”) released recommendations for AAA Construction Advocates and Arbitrators with regard to best discovery practices and tips for Construction Arbitration.  See American Arbitration Association Discovery Best Practices for Construction Arbitration (“Best Practices”).  Through the AAA National Construction Dispute Resolution Committee, our own John Bulman played a key role in drafting these guidelines.  The 7-page guideline provides a bullet point, practical summary of information exchange in arbitration.  It is a helpful resource to counsel, clients, and arbitrators to understand the ground rules in an arbitration proceeding.  In this post, I summarize some of the key takeaways from the Best Practices.

Document Exchange

Generally, parties are entitled to examine an opposing parties documents; however, “the scope of documents should be narrowly tailored and proportionate to the disputes at hand.” To achieve this goal, parties should each submit detailed statement of claims and defenses as early as possible to narrow the issues,

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  • April 04, 2021

Be Careful What You Offer in Your Next Offer of Judgment!

RI Case Law Update
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The Federal and most state rules of civil procedure contain an offer of judgment provision.  It allows a defendant to issue an “offer of judgment” to a plaintiff to settle the case.  It is designed to create a pause with the plaintiff to assess her case and decide whether she wants to proceed forward with the litigation or resolve it.  The purpose of the rule is to encourage prompt and early resolution of disputes.  A defendant utilizing the rule has an incentive to make a realistic offer that is inclusive of accrued interest and other litigation expenses (such as attorney’s fees where there is a fee shifting provision).  If an offer of judgment is not accepted, it potentially creates a cost shifting provision in favor of the defendant if the plaintiff does not recover an amount greater than the amount offered.  It also sets up an opportunity for the defendant to assert that no attorney’s fees should be

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  • March 31, 2021

Time to “Pay” Attention to Payment Provisions for Construction Contracts in Massachusetts

MA Case Update
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I know what you are thinking . . . payment provisions have ALWAYS been key components of construction projects.  Owners want to understand what they are paying for and that they are not over-paying.  Contractors want prompt payment provisions and limitations on an Owner’s ability to withhold payment.  Lower tier subcontractors and suppliers want clarity, information and remedies, other than what can be a cumbersome mechanic’s lien process, to ensure that they will get paid in the event of a dispute.  So, I absolutely agree, payment provisions are essential.  If payment is not made or the payment applications are not provided per the terms of the contract, it can cause delays and additional costs for all project participants.

A number of years ago, Massachusetts passed the Massachusetts Prompt Pay Act, G.L. c. 149, §29E (the “Act”).  The purpose of the Act is to create some ground rules that are read into each private construction contract that is $3,000,000 or more.  It

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  • December 15, 2020

The Massachusetts Statute of Repose Comes Marching One Building at a Time

Litigation, MA Case Update
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Have you ever wondered when Massachusetts’ 6-year statute of repose for defective design, planning and construction is triggered when dealing with the construction of a multi-building, multi-year condominium construction project?  

If you haven’t thought about such an issue that’s okay, neither had the United States District Court for the District of Massachusetts, nor the Supreme Judicial Court of Massachusetts.  However, luckily for us, the Supreme Judicial Court recently tackled this very question in D’Allessandro v. Lennar Hingham Holdings, LLC, 156 N.E.3d 197, 198 (Mass. 2020).

Photo from the Hewitts Landing Condominium website, found at https://www.livehewittslanding.com/hingham/hewitts-landing/photos/

In D’Allessandro, the Hewitts Landing Condominium project (the “Project”) consisted of 150 condominium units and twenty-eight buildings. D’Allessandro, 156 N.E.3d at 199.  The Project was built over the course of twenty four different phases between 2008 and 2015; however, as individual units were

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  • November 30, 2020

A Certain Degree of Control Could Save You From Suit

Rhode Island, RI Case Law Update, Worker's Compensation
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Here is the fact scenario:  A contractor employs certain employees that are union members or employees that have a tendency to “roam” and/or be “loaned”—i.e. the employee technically works for one entity, but also performs work for another affiliated company.  The employee is injured while working for the affiliated entity and not his actual employer.  The employee collects workers compensation insurance benefits from his actual employer and then tries to file suit against the affiliated company.

Question:  Is the employee entitled to collect workers compensation benefits from his actual employer, and then file a lawsuit to collect damages from the affiliated company?

Answer: Not according to the Rhode Island Supreme Court.

In Selby v. Baird, the plaintiff arrived at a residential home to begin his job as the foreman of a tree removal crew for a tree removal company.  While the crew was setting up their equipment at the job site,

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  • August 05, 2020

Rhode Island Removed From Massachusetts “Lower-Risk States” COVID Travel Exemption Effective August 7, 2020

COVID-19
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Effective August 7, 2020, Massachusetts removed Rhode Island from one of its “Lower-Risk States” COVID Travel Exemption.  This applies to Massachusetts recently imposed travel restrictions that commenced on August 1, 2020.

The impact of the order means that a Rhode Island resident that travels into Massachusetts must quarantine for 14 days unless one of the following can be established:

(1) Person is coming from a lower risk-state – does not apply to persons coming from Rhode Island;

(2) Negative COVID test taken within the previous 72 hours; or

(3) Meets the exemption criteria.

The exemption criteria includes:

    • Transitory travel — passing through Massachusetts
    • Persons commuting for work or school – only permits travel from a person’s residence to a “fixed place” to attend school or work.  Does not apply to “travel to any place that is not their home state
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  • May 21, 2020

Virtual Arbitrations/Trials — Should You Use An Expanded Witness Oath?

ADR, COVID-19
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For arbitrations and trials that are pending and/or are scheduled for the near term, the judges/arbitrators/counsel/parties are now confronting the decision on whether to proceed forward with conducting the proceedings remotely.  If they decide to proceed forward, there will naturally be some reluctance to proceed forward.  The reluctance is because it is new and unfamiliar.  It is because there is a sense that it may be more challenging to evaluate a witness’ credibility and veracity.

There are also technological concerns of virtual hearings — both as to functionality (testing the video/audio connection) and the integrity of the testimony.  In this post, I am sharing a contribution from my Pierce Atwood law partner John Bulman, FCIArb who regularly serves as an arbitrator handling construction and commercial cases domestically and internationally.  In his post below, John addresses specifically the issue of additional measures that should be considered by arbitrators, attorneys, and witnesses to ensure the integrity of the virtual arbitration process.

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