• 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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  • May 18, 2020

Construction Shutdown is Lifted in Massachusetts

COVID-19
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Non-essential private construction projects were suspended on March 31, 2020 in Massachusetts.  That suspension has been in place for the construction industry until today — May 18, 2020.

As part of the first phase of the Four-Phase Approach to Reopening Massachusetts, Governor Baker announced that the construction industry may commence work provided the mandatory safety standards and protocols can be followed.  See Report from the Reopening Committee.  Before a project may reopen, each business must have a COVID-19 Control Plan in place and posting of posters.

Three resource documents were distributed

The safety standards include social distancing (crews 6 feet apart at all times) and no meetings of more than 10 people.  Where social distancing is not possible, PPE (face covering, gloves, and eye protection) must be used.

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  • April 15, 2020

Cloth Face Masks Required for Rhode Island Employees Through May 18, 2020

COVID-19, RI Statute Update
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On April 14, 2020, Governor Raimondo issued the Twenty-First Supplemental Emergency Declaration — Requiring Cloth Face Masks At Work.  The Order is effective Saturday, April 18 and continues through May 18, 2020.

Cloth face coverings are required for any Rhode Island employee working at a customer/client-facing business, non-profit organization, office-based businesses, and any other such business category as determined by the Department of Business Regulation (DBR) that is still in operation.  Previously, on March 22, 2020, the Governor ordered all Rhode Island employees that can work from home to work from home.

Cloth face coverings are not required if an employee can “easily, continuously, and measurably maintain at least six (6) feet of distance from other employees for the duration of his or her work (e.g. solo office) or unless doing so would damage the employee’s health.  Thus, if an employee has a dedicated office with the doorway six feet away, a face covering would not be required while

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  • April 10, 2020

Securing Mechanic’s Liens in Rhode Island During the COVID-19 Crisis

COVID-19, Rhode Island, RI Mechanic's Lien
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The current COVID-19 crisis has complicated all facets of life, including securing mechanic’s liens.  Properly notarizing your lien and recording the lien are crucial steps to securing a valid and enforceable mechanic’s lien in Rhode Island. While Rhode Island has implemented some procedures to remotely notarize documents and in some instances, e-record documents, neither procedure is without its hiccups.

One of the first crucial steps in securing your mechanic’s lien is filing your notice of intention (“NOI”) pursuant to RIGL § 34-28-4.  The statute requires that the NOI be executed under oath.  With mandated office closures and social distancing orders in place for the foreseeable future, how do you go about completing this essential step?  On April 3, 2020, the Rhode Island Secretary of State announced that it is temporarily allowing remote online notarization (“RON”).  RON, while helpful under these circumstances, presents its own headaches.  Here are the steps to get your NOI notarized:

  1. Find a notary who is authorized to
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