The Library

Two recent court opinions are of interest to Virginia construction lawyers and businesses. The first one relates to an assignment of a construction contract, and the second one to the enforcement of a mechanic’s lien where it has been “bonded off.” In Smart Choice Corp. V. Wayne’s Erecting LLC, Judge Conrad issued the opinion of the USDC for the Western District of Virginia concerning the defendant’s motion to dismiss. In this case, contractor M.D. Russell Construction entered into a contract with Wayne’s Erecting concerning the construction of an office building. M.D. Russell subsequently assigned this contract to Smart Choice. At […]

Developers have discovered the benefit of identifying early on if their projects are eligible to participate in tax incentive programs. The Federal Preservation Tax Incentives program alone has certified the rehabilitation of over 38,000 historic buildings, with investments totaling over $66 Billion for the rehabilitation of these historic properties. Following are some highlights of the federal and state historic rehabilitation tax incentive programs and the new market tax credit (NMTC) program. Historic Structures Federal and State Preservation/Rehabilitation Tax Credits programs are designed to encourage developers to rehabilitate historic structures, a choice that without incentives would often prove more expensive than […]

On May 15, 2013, the OFCCP issued a notice that federal supply and service contractors will be required to use the most recent race, ethnicity and sex data from the Census Bureau to develop written affirmative action plans commencing on January 1, 2014. The notice observed that federal regulations require contractors to calculate availability estimates based on the “most current discrete statistical information available.” Last November, the Census Bureau began releasing updated information in a series of tables that break down the U.S. labor force by sex, race and ethnicity. This information collected during 2006-2010 is referred to as the […]

If you are a contractor trying to get paid for a claim on your construction project, then you have to prove that you were somehow damaged. Easier said than done – right? The measured mile approach is one way for a contractor show or prove its lost productivity on a construction project. And, when it can be used, it is an approved method for measuring the lost productivity. In the U.S. Industries, Inc. v. Blake Construction Co., Inc. case, the U.S. Court of Appeals for the DC Circuit gave its stamp of approval: “USI’s proof of disruption damages consisted of […]

This article by attorney Peter Irot appeared on Gentry Locke’s “Virginia OSHA Law News” blog. The “Willful Misconduct” defense in Virginia workers’ compensation law is similar to the “Employee Misconduct” defense in OSHA matters. A workplace injury may lead to both OSHA and workers’ compensation proceedings. Therefore, it is useful to understand the elements and requirements of both defenses — of which there is much overlap. Something that nearly every Virginia employer will have to consider sooner or later is whether it has a “willful misconduct” defense to a workers’ compensation claim. In fact, many employers and insurers tend to […]

Some companies have mistakenly treated workers as independent contractors, as opposed to employees. Once this issue is identified, employers struggle with how to fix the problem without creating bigger problems. Over the past year, the IRS has offered a voluntary program that provided relief for some employers who have voluntarily chosen to reclassify their workers as employees. The Voluntary Classification Settlement Program (VCSP) has been of limited usefulness because most employers are barred from applying for the VCSP if they have failed to file the required Form 1099s with respect to the workers they are seeking to reclassify, or were […]

A Contractor’s claim can be worth millions; so, it is sometimes surprising to see how little thought is put into the claim documents. To have a better chance to recover your claim, the claimant Contractor needs proof (hopefully written) to isolate the causes of the claim and the amount of its added costs and work time. In the Winter 2012 ABA publication The Construction Lawyer, Douglas Oles provided a list of the minimum requirements for claim documentation from the General Conditions for Washington State Facility Construction (check out pages 38-39). It is quite a list of requirements (requiring much more […]

Let’s look at the question of whether Virginia courts enforce notice provisions for change work in construction contracts. How’s this for a typical lawyer answer? “It depends.” For starters, a public contract is treated differently from a private contract. For public contracts, general contractors should be very careful to provide notice in strict compliance with both the contract and Virginia Code § 33.1 – 386. This was the subject of Commonwealth v. AMEC Civil, LLC. The Code requires written notice of the contractor’s intention to file a claim, which must be given at the time of occurrence or at the […]

This article originally by Gentry Locke attorneys David Paxton and Michael Finney appeared in Vol. 24, No. 4 of the Journal of Civil Litigation,a publication of the Virginia Association of Defense Attorneys. It appears here with permission. Read the full article as a PDF attached to this article. I. INTRODUCTION Most civil cases resolve by settlement, rather than trial. Accordingly, significant time and effort are often devoted to strategy underlying the familiar back-and-forth negotiation process. When is the best time to engage in settlement discussions? Does it show weakness to be the first to raise the subject? How should offers […]