Regulations Alert ! Rhode Island Contractors, Home Inspectors, & More

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On December 19, 2019, the Rhode Island Contractors Registration and Licensing Board’s (“CRLB”) revised regulations for contractors and new regulations home inspectors, well drillers/pump installers/water-filtration contractors, and commercial roofers will go live.  Here’s a link to the Regulations.  

For the commercial roofers, home inspectors, and well drillers/pump installers/water-filtration contractors, the new regulations create a licensing regime pursuant the Rhode Island statutes.  See R.I. Gen. Laws 5-65.1- 1 et seq. (home inspectors); R.I. Gen. Laws 5-65.2- 1 et seq. (well drillers et al); R.I. Gen. Laws 5-73-1 et seq (commercial roofers).  Previously the licensing requirements were in place by statute but lacked the necessary procedural and enforcement mechanisms.  Now, the CRLB regulations present application requirements including a licensing examination, certain standards of practice and performance, and continuing education requirements to maintain the license going forward.  Each professional will be required to apply and become licensed with the CRLB by or before April 1, 2020 when the

Pierce Atwood Attorneys Attend Construction Industry Dispute Resolution Meeting in Washington, DC

Last week, John Bulman and I attended the National Construction Dispute Resolution Committee’s (NCDRC) Annual Meeting in Washington, DC. The NCDRC is an advisory committee formed by the American Arbitration Association (AAA) to engage in discussion with a wide variety of construction industry associations about the AAA Rules and dispute resolution processes generally. The American Institute of Architects (AIA) graciously hosted the meeting at its offices.

Representatives from the following organizations were present:

ABA Forum on Construction Law’s Fall Meeting Explores Inclusion, Diversity, and Professionalism in the Construction and Legal Industries

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I was fortunate to attend the ABA Forum on Construction Law’s fall meeting in Philadelphia, Pennsylvania from October 23 – 25, 2019.   The program titled Building a Better Construction Industry through Inclusion, Diversity, and Professionalism was a first for both the Forum on Construction Law and the ABA.  Never before had any ABA group dedicated an entire meeting to the topics of inclusion, diversity, and professionalism.  The following ABA diversity commissions and coalitions co-sponsored the event: the Commission on Women in the Profession, the Coalition on Racial and Ethnic Justice, the Commission on Hispanic Legal Rights and Responsibilities, the Commission on Sexual Orientation and Gender Identity, the Commission on Disability Rights, and the Council for Diversity in the Educational Pipeline.

The speakers in the nine plenary sessions provided a wealth of information, insight, and practical tips to both lawyers and construction professionals alike.  Here are some of the highlights:

Diversity and Inclusion Problems Can

Condominium Mechanic’s Liens

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Mechanic’s lien claims are complex in that each state’s statutes differ dramatically.  There are certain unique issues when a contractor seeks to commence a mechanic’s lien proceeding for improvements made to a condominium.

What did you improve?

When assessing your rights under the applicable mechanic’s lien statute, focus on the property that you improved.  You are only entitled to lien the property interests for which you made an improvement.

For condominiums, there are common areas and units.  The common areas are owned by the condominium trust/association and the units are owned by the individual owners.  This year, I commenced a mechanic’s lien action on behalf of a subcontractor against a new, 10-unit condominium in Rhode Island.  My client performed improvements to the entire building — both common areas and in the units.  The general contractor was hired by the developer of the condominium. By the time final payments were not released some of the units were transferred to

The Intersection of Workers’ Compensation Immunity and Contractual Indemnity

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The workers’ compensation statute in many states provides that the workers’ compensation benefits received by an injured employee is the employee’s exclusive remedy.  The benefits are paid based on a no-fault basis and the injured employee is barred from bringing a lawsuit against his or her employer.  The degree in which the exclusive remedy provision applies varies in different jurisdictions.  An ABA 50-State Survey on the exclusive remedy provisions can be found by clicking HERE.

In many construction contracts, a contractor indemnifies an owner for personal injury and property damage caused by the contractor’s negligence.

Here is the fact scenario:  A contractor’s employee gets injured on a jobsite.  The employee receives workers’ compensation benefits but has incurred additional damages beyond those benefits.  The contractor employee cannot bring a lawsuit against the his employer based on the workers’ compensation exclusive remedy provision, but the employee may bring a lawsuit against the owner for the personal injury damages.  Owner

50-State Surveys on Architectural and Engineering Issues

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Each jurisdiction has unique requirements for design professionals.  Whereas many architects and engineers practice in multiple states, keeping track of these requirements is important.

Along with other Pierce Atwood attorneys, I contributed to two very helpful 50-State surveys published by the Division 3 (Design) of the ABA Forum on Construction Law.  Links to these surveys is below:

50-State Survey of Firm Licensure Requirements for Architectural and Engineering Firms. 

We contributed to the Maine, Massachusetts and Rhode Island sections of this survey.  In Maine, a license may only be issued to an individual — a firm may not be licensed.  There is no requirement for A/E firms in Massachusetts to register the entity, but such entities will be required to present specific information regarding persons performing professional services with the Secretary of State.  Yet, in Rhode Island, a certificate of authorization must be obtained by A/E firms to practice architecture or engineering.   There are also detailed corporate ownership composition and control

An Investigation in Sheep’s Clothing: Multilateral Development Bank “Audits”

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Enforcement actions against international construction companies have been on the rise in recent years, culminating in the headline-grabbing $3.5 billion joint U.S./Brazilian action against Odebrecht S.A. in late December 2016.  Less prominently, however, enforcement actions against construction companies by the multilateral development banks (“MDBs” – such as the World Bank and the European Bank for Reconstruction and Development) have also risen sharply, and in many cases have been putting companies out of business.  Here are some basics you should know in case you ever get a letter from an MDB saying you are about to be “audited.” 

It’s Not an Audit
The letter a company will receive launching this kind of investigation will usually say that the integrity office (as the enforcement arms are generally known) is conducting an “audit” of a particular project.  This is unlike any audit you have ever experienced – because it is actually a full-blown investigation that in many ways resembles an investigation by

Clawback Agreements – Friend or Foe?

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As construction attorneys, we are no strangers to voluminous productions of client documents and communications, both in electronic and hardcopy formats, during discovery. Even with proper safeguards in place during document review, there exists the possibility that some privileged material may accidentally slip over to an opposing party.  Production of such material to a third party, especially an adversary, runs the risk of waiving attorney-client privilege or attorney work product privilege.

Rule 502(b) of the Federal Rules of Evidence creates somewhat of a safety net for inadvertent disclosures, but requires compliance with a number of steps. Fed. R. Evid. 502(b) (“disclosure does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B) [concerning inadvertent production of trial preparation materials].”) Note also that

Pierce Atwood Attorneys Attending Summit on Diversity and Inclusion in the Construction Industry

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Pierce Atwood Attorneys, Tom Dunn and Katie Kohm, plan to attend a first-ever summit focused on understanding the business implications of inclusion, diversity, and professionalism across the construction industry.  The meeting is a perfect opportunity for in-house counsel, risk managers, compliance managers, diversity officers, and other leaders of companies involved in the construction industry to engage in this important discussion.  The American Bar Association Forum on Construction Law is putting on the meeting in Philadelphia later this month on October 23-25th.  As can be seen in the program brochure, the topics discussed are relevant to legal and business professionals involved in the construction community.  In addition to an assessment of diversity and inclusion, topics include how those issues relate to risk management, pay equity, immigration, DBE programs, negotiations/ADR, leadership, and rules of ethics.  The program will benefit any lawyer advising companies, any labor/employment lawyer, and any in-house counsel for construction, design, insurance.

I

A View from the Middle of the Table – A Mediator’s Practical Observations and Recommendations

After more than 300 mediations in the last twenty years, I have found that a successful mediation of a complex matter requires thoughtful preparation and collaboration by counsel, parties and the mediator. In contrast, the hallmarks of a failed mediation often include: an inadequate objective evaluation of one’s own case, a failure to fully support or vet the damages claimed, failure to make a cogent and competent case presentation in the joint session, or a failure to accurately estimate the transaction cost of proceeding to judgment (attorneys’ fees, expert fees, discounted risk of adverse judgment etc.). What follows are some practical observations and suggestions on how to be effective as an advocate in mediation. This is not meant to be exhaustive; it is meant to orient (or re-orient) counsel’s thinking as a mediation approaches.

Choose the Right Mediator

There are many schools of thought on how to pick the right mediator. Some argue that picking a mediator with deep substantive knowledge in the subject