Litigation

Be Careful What You Offer in Your Next Offer of Judgment!

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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

The Massachusetts Statute of Repose Comes Marching One Building at a Time

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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

A Certain Degree of Control Could Save You From Suit

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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,

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

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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

Claims against RIDOT – Important Judicial Decisions in 2019

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The Rhode Island Superior Court came down with a few interesting decisions this year concerning Rhode Island General Law Section 37-13.1-1.  That statute deals with actions against the State of Rhode Island on Highway and Public Works contracts.  The statute provides in part:

  • 37-13.1-1. Suits allowed – Jurisdiction – Statute of limitations – Procedure.   (a) Any person, firm, or corporation which is awarded a contract subsequent to July 1, 1977, with the state of Rhode Island, acting through any of its departments, commissions, or other agencies, for the design, construction, repair, or alteration of any state highway, bridge, or public works other than those contracts which are covered by the public works arbitration act may, in the event of any disputed claims under the contract, bring an action against the state of Rhode Island in the superior court for Providence county for the purpose of having the claims determined, provided notice of the general nature of the claims shall have been given

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

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