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Tom Dunn

This author Tom Dunn has created 41 entries.

The Intersection of Workers’ Compensation Immunity and Contractual Indemnity

Practice area:

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

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

Taking an Out of State Deposition in Rhode Island Just Got Easier!

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On July 15, 2019, the Uniform Interstate Depositions and Discovery Act (the “Uniform Act”) was enacted in Rhode Island. R.I. Gen. Laws 9-18.1-1 et seq.  It will simplify the process of taking a deposition in Rhode Island for actions pending outside Rhode Island.  In enacting this legislation, Rhode Island joins 33 other states in adopting the uniform legislation.

Fact Scenario

You have a construction litigation matter pending in Vermont, but the architect of the project is from Rhode Island.  You want to take the architect’s deposition.  How do you go about taking the architect’s deposition?

Process Pursuant to the Previous Statute

The Vermont counsel wishing to take the deposition must provide a commission or some instruction from the Vermont trial court granting permission to take the out of state deposition.  Vermont counsel then had to retain local counsel licensed to practice in Rhode Island to commence a miscellaneous

Corporate Deposition — Multiple Witnesses At the Same Time?

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A few years ago, I represented a process piping subcontractor in a claim against the general contractor and the owner of a coal fired power plant in Massachusetts.  While the case was unique and interesting in a number of ways, some of which may be the subject of future posts, one aspect that was new for me was taking a Rule 30(b)(6) corporate deposition of two individuals at the same time.

Rule 30(b)(6) depositions are depositions of a corporation or other business entity.  It is the corporation that is testifying.  These depositions can be helpful to obtain testimony of the corporation that will be binding on the corporation at the time of trial.  They also impose an obligation to prepare and educate the individuals who testify on behalf of the corporation — to learn what information the “corporation knows” which is often beyond one person’s personal knowledge.  The corporation designates individuals to testify for the corporation on a list of topics provided by the party noticing

An Easy Way to Preserve Your Mechanic’s Lien Rights in Rhode Island

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A mechanic’s lien right is a powerful remedy to secure a contractor’s right to payment.  Each jurisdiction’s mechanic’s lien statute is unique and most states strictly interpret/enforce the statutes.  For multi-jurisdictional contractors, a common practice in New England, mechanic’s liens are a double-edged sword because they provide substantial leverage, but they are often costly and cumbersome to perfect.  In the Solid Foundation blog, we will post regularly on issues relating to mechanic’s liens statutes throughout New England.  As a start, we have put together this post that zeroes in on one fundamental requirement to preserve a general contractor’s mechanic’s lien in Rhode Island – the Notice of Possible Mechanic’s Lien pursuant to R.I. Gen. Laws § 34-28-4.1.

WHO SHOULD READ THIS POST?

  • Contractors who perform work in Rhode Island for Owners.
  • Owners

WHAT A CONTRACTOR NEEDS TO DO TO PRESERVE ITS MECHANIC’S LIEN?

If

Practical Tips on Working with Former Employees Who Are Key Witnesses

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Suppose you are in-house counsel for a construction company.  Your Guaranteed Maximum Price (“GMP”) is blown and the Owner has refused to execute any change orders during the Project. You know you are heading towards a claim.  Within one week of substantial completion being achieved, the project manager that has managed the entire job gives his notice explaining he is leaving to work for a competitor.  What do you do next?  What could you have done to plan for this?  In this post, I outline practical measures you can take when faced with this challenging, complex, and yet very common scenario.

Planning Measures

The best time to deal with the issue of former employees is before the employee is hired.  Important provisions to be considered in employment policies and agreements include:

  • Confidentiality and Protection of Company Trade Secrets. An employer, particularly in the competitive market of the construction industry, has a strong and

Additional Insurance Coverage: Fundamentals and Misconceptions

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Additional insured (“AI”) requirements for commercial general liability (CGL) policies are very common in construction contracts.  An Owner routinely requires its general contractor (“GC”) to provide AI coverage for itself, its affiliates, and sometimes a handful of other entities (lender, architect, etc.).  In turn, the GC mandates its subcontractors to provide AI coverage for the GC, the Owner, and a cast of other characters.  While frequently used, for good reason, this risk transfer tool is often misunderstood.  In this post, I will explain the purpose of AI coverage, identify what it does and does not cover, and provide answers to a few misconceptions about additional insured coverage.

The Purpose of Additional Insured Coverage

The design of AI coverage is to trigger the insurance procured by lower-tier contractors.  The Owner, GC, and subcontractors all have CGL insurance, but the goal of additional insured coverage is to make sure that someone else’s insurer will be on the hook to provide defense and indemnity should

Should You Use Integrated Project Delivery on Your Next Construction Project?

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Complex construction projects have many moving parts and numerous stakeholders.  Each project often contains its own unique challenges and obstacles.  Finding the right solution does not often come by trying to utilize a one-size-fits-all approach.  Indeed, complex issues call at times for customized responses.

Discerning the appropriate solution for particular problems involves a variety of decisions.  Chief among many concerns is determining what the priorities are on a given project, and figuring out the best way to achieve those aims for all involved.

A contract solution that seeks to harness the potential of collaboration, and alignment of the priorities of all those involved in complex construction projects, is Integrated Project Delivery (“IPD”).  IPD is a project delivery system that utilizes a team-based approach to construction projects where the risks and rewards of a project are shared by all of the stakeholders and, when done right, maximizes efficiency so projects are completed on time and on budget.

Like other tools, IPD is not