Year: 2010

Owner responsibility for constructability, or not?

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12/20/2010Lowenstein, Neil S.

Historically, construction is Virginia is design-bid-build; that is the owner hires a designer to design the project, put the design out for bid, and the awardee contractor builds pursuant to the design. But what if the design is insufficient? Who’s responsible for resulting damages? Generally, that responsibility lies with the owner, who according to Virginia Supreme Court… Read more »

150-day look back for mechanic’s liens: What’s the big deal?

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12/13/2010Lowenstein, Neil S.

This revisits Virginia mechanic’s liens. One of the quirks of the Virginia code prohibits inclusion in a mechanic’s lien of amounts for labor or materials furnished more than 150 days prior to the last day labor was performed or materials were furnished preceding the filing of the lien. But what if you do include prohibited… Read more »

PR: Careful what you tell your PR company; it may come back to haunt you

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12/10/2010Lowenstein, Neil S.

With the ever-increasing media world, public relations assistance to help manage public perceptions respecting companies, projects, or specific project events, like a casualty, are increasingly helpful and common. However, for your PR company to help effectively spin those perceptions, they need information. Companies seek to cloak such disclosures with the attorney-client or work product privileges,… Read more »

Think those materials are warranted? Maybe not.

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12/08/2010Lowenstein, Neil S.

Manufactured products typically come with installation instructions. If the installer follows them, one would presume the warranty would stand. But one Virginia Supreme Court case, Bridgestone/Firestone v. Prince William Square, 250 Va. 402, 463 S.E.2d 661 (1995), calls that presumption into question. In that case, the installer installed per manufacturer’s instructions. Although the installer used… Read more »

Virginia Public Bodies Cannot Avoid Delay Damages With Limited Markup Provisions

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12/06/2010Lowenstein, Neil S.

Increasingly over the years, public bodies have sought to use express markup provisions as the limited extent of their liability for delay damages; however, the Virginia Supreme Court has rejected that approach as contrary to Virginia’s statutory prohibition of delay damage waivers for public projects in Virginia Code Sec. 2.2-4335. That code section voids any… Read more »

New Crane & Derricks Standard

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12/03/2010Lowenstein, Neil S.

For those unaware, there’s a new OSHA standard for cranes & derricks in construction. That standard, CFR 29 Part 1926 Subpart CC was published July 9, 2010 and became effective last month on November 8, 2010. It’s a 200 page standard so I’m not going to try and summarize it all; however, there are several… Read more »

Surety Project Completion: No one size fits all

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12/01/2010Lowenstein, Neil S.

What happens if a party who’s bonded doesn’t or can’t complete their work? There’s no single answer to this, but if you’re the party that issued the contract (the “obligee”) you should pat yourself on the back for getting the performance bond in the first place. If not for the performance bond, you’d be out… Read more »

Indemnity and Defense Obligations: Not Necessarily Absolute

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11/29/2010Lowenstein, Neil S.

Now that everyone’s had their fill of Thanksgiving food and good cheer, it’s time to get back to the old grindstone. One way to burn off those holiday calories is to exercise the old mind; hey, in my book, every calorie burned counts, not matter how you burn it! The Virginia Supreme Court recently dabbled… Read more »

Payment Bond: It’s not insurance

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11/28/2010Lowenstein, Neil S.

Many subcontractors presume that if there is a payment bond on a project they have insurance of payment from the surety, but that’s not true. A payment bond is not insurance. It only comes into play if the claim is covered by the payment bond and the claimant makes proper claim under the payment bond,… Read more »

Holiday Cheer: WKRP Old School Sitcom Humor

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11/24/2010Lowenstein, Neil S.

The holiday season is always one of the best of the year. Getting ready for turkey day reminded me (showing a bit of my age here) of an old episode of WKRP in Cincinnati, in which the radio station tried a turkey giveaway promotion, but the station owner didn’t realize turkeys (at least big domestic… Read more »