VDOT Subcontractor Pass-Through Claims: APAC-VA revisited

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03/28/2011Lowenstein, Neil S.

Subcontractor “pass-through” claims for VDOT projects were rejected by the Virginia Court of Appeals in the APAC-Virginia case based on the premise that the statute only allowed a contractor to assert claims respecting which it was the “real” party in interest. Because the subcontractor did not have a contract with VDOT there was no “privity”… Read more »

Contract or Tort Claim: The difference goes from clarity to gray

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03/19/2011Lowenstein, Neil S.

In 1998 the Virginia Supreme Court clarified in the McDevitt case that the rights and obligations between contracting parties was limited to that contract, and could not give rise to additional tort claims. This month the same court in Kaltman v. All American Pest Control seems, to me, to have significantly clouded the issue by… Read more »

Noncompetes: Death by breadth

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03/13/2011Lowenstein, Neil S.

Noncompete agreements are common in the construction industry for key employees. There are valid reasons for this, such as the expense of train-up, knowledge growth, and client access employees would never otherwise get or have. But courts simply do not like noncompete agreements, primarily because they are loath to prohibit someone from working in the… Read more »

Good contract documents: they make all the difference

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03/03/2011Lowenstein, Neil S.

I’ve just finished reviewing a construction contract as precursor to helping with resolving major disputes between the parties. The parties used a “standard” industry form, but not in its current version. It incorporates, in part, a proposal that has arguably contrary terms. Which governs? Eventually the parties will resolve this between themselves or the issues… Read more »

E-verify Updated

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03/02/2011Lowenstein, Neil S.

In an earlier post I discussed potential legislation adopted the federal e-verify requirements for public projects. This is now closer to happening. Both the state senate and house passed identical e-verify bills that are now going to the governor for consideration. Summarized, if you do business with the state and have over 50 employees and… Read more »

Notice: Actual probably isn’t enough

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03/02/2011Lowenstein, Neil S.

Most construction projects have notice requirements requiring notice to be given to the other side, in writing, at specific times, to specific persons, and including specific information. The reality, though, is that construction projects move quickly and lend themselves to focusing upon construction and not administration. Unfortunately, though, this can lead to problems down the… Read more »