Twin Cities Law Firm | Business Negotiation Attorneys

The Corporate Transparency Act and What it Means for U.S. Companies

By Paul W. Muilenberg and William D. Schlicht Paul and Will are members of the firm’s Corporate Planning, Mergers & Acquisitions and Real Estate Law Department. Paul can be reached at 612.359.7669 or… The post The Corporate Transparency Act and What i…

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Performance Specifications and the Non-Delegable Duty: The Pitfalls of Design Delegation for Contractors and Design Professionals Alike

By Kylee A. Evans Kylee is an associate of the firm’s Construction Law Department. She can be reached at 612.359.7668 or KEvans@fwhtlaw.com. Over the last few decades, owners and their design professionals… The post Performance Specifications…

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Fabyanske Firm Sues to Protect Integrity of Minneapolis Procurements

By Dean B. Thomson and Zach E. Coppola Dean and Zach are members of the firm’s Construction Law Department. Dean can be reached at 612.359.7624 or DThomson@fwhtlaw.com. Zach can be reached at 612.359.7667… The post Fabyanske Firm Sues to Protect Integrity…

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How Race-Based Admissions Preferences being Deemed Unconstitutional May Impact the DBE Program

By Nick M. Lewis Nick is a member of the firm’s Construction Law Department. He can be reached at 612.359.7650 or NLewis@fwhtlaw.com. Last summer, in a landmark decision, the Supreme Court of the… The post How Race-Based Admissions Preferences being…

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Minnesota Legislature Enacts Changes to Underground Safety Laws

By Hugh D. Brown Hugh is a shareholder of the firm’s Construction Law Department. He can be reached at 612.359.7663 or hbrown@fwhtlaw.com. One product of the Minnesota legislature’s 2024 session was new legislation… The post Minnesota Legislature En…

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The Uses of AI in Construction and Evolving Industry Standards

By Matthew G. Nelson Matt is a member of the firm’s Construction Law Department. He can be reached at 612.359.8611 or mnelson@fwhtlaw.com. Introduction Change is constant, and it affects the standards of… The post The Uses of AI in Const…

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Recent Developments Involving the LEG-3 Extension to Builders’ Risk Coverage

By Matthew G. Nelson Matt is an associate in the firm’s Construction Law Department. He can be reached at 612.359.8611 or mnelson@fwhtlaw.com. Introduction Insurance is a cornerstone of risk management and allocation… The post Recent Dev…

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What Contractors Need to Know about Minnesota’s New Independent Contractor Legislation

By Lucas T. Clayton Luke is a shareholder in the firm’s Construction Law Department. He can be reached at 612.359.7628 or lclayton@fwhtlaw.com In its past session, the Minnesota Legislature passed a bill seeking… The post What Contractors Need to Know abo…

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Updates to the American Arbitration Association’s Construction Arbitration Rules

Click here to read the article written for the American Bar Association by Hugh Brown entitled “Updates to the American Arbitration Association’s Construction Arbitration Rules“ Announcements Join Hugh Brown for an upcoming National Busi…

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Addressing Design-Build Quantity Risk in Teaming Agreements

Click here to read the article written in the ABA Forum on Construction Law Division 10 blog by Hugh Brown entitled “Addressing Design-Build Quantity Risk in Teaming Agreements“ Announcements Mark Becker, Colin Bruns, Luke Clayton…

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How Minnesota’s New Ban on Non-Compete Agreements Could Affect the Construction Industry

By Kylee Evans Kylee is an associate of the firm’s Construction Law Department. She can be reached at 612.359.7668 or KEvans@fwhtlaw.com. Minnesota has recently passed a bill banning non-competition agreements (“non-competes”) within the… The post How Mi…

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Enforcement of an LD Clause is Not a Foregone Conclusion

Hugh D. Brown is a shareholder in the firm’s Construction Law Department. He can be reached at 612.359.7663 or Hbrown@fwhtlaw.com. Zachary E. Coppola is an associate for the firm and can be reached… The post Enforcement of an LD Clause is Not a Foregone C…

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How to Beat the Heat: What Contractors Need to Know About OSHA’s Recent Heat Hazard Alert

Colin is a shareholder in the firm’s Construction Law Department. He can be reached at 612.359.7665 or Cbruns@fwhtlaw.com Due to record-breaking temperatures across the country, OSHA recen…

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Blanket Mechanics’ Liens in Minnesota

Matthew is a member of the firm’s Construction Law Department. He can be reached at 612.359.7611 or mnelson@fwhtlaw.com Introduction Contractors know that it is crucial to have the right t…

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Comparing Theory and Practice: Survey Results of What Attorneys and Arbitrators Want in Construction Mediation and Arbitration

Click here to read the article written for The Construction Lawyer, A Publication of the American Bar Association by Dean Thomson and Julia Douglass entitled “Comparing Theory and Practice: Survey Results of What… The post Comparing Theory and Pract…

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Questions & Answers to Current Issues in Construction

Matt is a member of the firm’s Construction Law Department. He can be reached at 612.359.7610 or mcollins@fwhtlaw.com. Supply chain delays and force majeure, new OSHA enforcement guidance changes, the Inflation Reduction Act,… The post Questions & An…

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Municipal CMAR Contracting Comes to Minnesota

Nathan is a member of the firm’s Construction Law Department. He can be reached at 612.359.7606 or nsellers@fwhtlaw.com. T…

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Indemnitor Beware: The Curse of Circular Indemnity

Nathan is a member of the firm’s Construction Law Department. He can be reached at 612.359.7606 or nsellers@fwhtlaw.com. You’re a general contractor hard at work on a complex, time-i…

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Rain Check: How are Inclement Weather Events Measured in Your Project’s Force Majeure Clause?

Miles is a member of the firm’s Construction Law Department. He can be reached at 612.359.7641 or mkelson@fwhtlaw.com. Because adverse weather can impact nearly every conceivable type of construction project, both owners and… The post Rain Check: How are…

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High Stakes – Considerations for Contractors in Light of the Minnesota Legislature’s Anticipated Legalization of Cannabis

Julia is a shareholder of the firm’s Construction Law Department. She can be reached at 612.359.7622 or jdouglass@fwhtlaw.com. Minnesota Democrats have pledged that they will pass legislation allowing recreational marijuana this session with… The post Hi…

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Liens “On The Line”: Enforcing Line Liens on Minnesota Renewable Energy Projects

Hugh Brown and Kasia Kokoszka are members of the firm’s Construction Law Department. Hugh can be reached at 612.359.7663 or hbrown@fwhtlaw.com. Kasia can be reached at 612.359.7601 or kkokoszka@fwhtlaw.com. Mechanics’ liens are critical… The post L…

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An OSHA Primer: How to Prevent OSHA Citations by Promoting a Culture of Safety

Elise is a member of the firm’s Construction Law Department. She can be reached at 612.359.7657 or eradaj@fwhtlaw.com. Introduction Regrettably, the construction industry is consistently within the top-ten highest fatality rates by occupation… The p…

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Understanding the CHIPS Act and its Potential Benefits to the Construction Industry

Mark R. Becker is a shareholder in the construction law group of Fabyanske, Westra, Hart & Thomson, and may be reached at mbecker@fwhtlaw.com. Kylee A. Evans is a law clerk at Fabyanske, Westra,… The post Understanding the CHIPS Act and its Potential …

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Five Tips to Preserve Your Right to Payment

Hugh Brown is a member of the firm’s Construction Law Department. He can be reached at 612.359.7663 or hbrown@fwhtlaw.com. Contractors operating on thin margins in an era of escalating prices and supply chain… The post Five Tips to Preserve Your Rig…

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The Benefits and Drawbacks of Project Labor Agreements

Kasia is a member of the firm’s Construction Law Department. She can be reached at 612.359.7601 or kkokoszka@fwhtlaw.com A project labor agreement (PLA) is a type of collective bargaining agreement typically used on… The post The Benefits and Drawbacks of…

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The Duty to Defend and Reservation of Rights: What Rights is Your Insurer Reserving?

Colin is a member of the firm’s Construction Law Department. He can be reached at 612.359.7665 or cbruns@fwhtlaw.com When facing a claim asserted by a third party, one of the first steps a… The post The Duty to Defend and Reservation of Rights: What Right…

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On Signing Construction Contracts

Mark is a shareholder in the firm’s Construction Law Department. He can be reached at 612.359.7620 or mbecker@fwhtlaw.com It takes a measure of fortitude, integrity, and confidence to sign a construction contract. You… The post On Signing Construction Con…

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Arbitration Clauses – The Devil is in the Details

Luke is a shareholder in the firm’s Construction Law Department. He can be reached at 612.359.7628 or lclayton@fwhtlaw.com Many construction contracts contain arbitration clauses requiring that some or all disputes between the parties… The post Arbitratio…

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Guiding Mediation to Meet Demand: Achieving More Effective Mediation in Construction Litigation

Dean and Julia are members of the firm’s Construction Law Department. Dean can be reached at 612.359.7624 or dthomson@fwhtlaw.com. Julia can be reached at 612.359.7622 or jdouglass@fwhtlaw.com. All standard construction industry contract forms… The post G…

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What’s in Your Waiver (of Consequential Damages)?

Rob is a member of the firm’s Construction Law Department. He can be reached at 612.359.7648 or rsmith@fwhtlaw.com In a series of recent television ads, Samuel L. Jackson asks the question, “What’s in… The post What’s in Your Waiver (of Consequential Dama…

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Does the Spearin doctrine apply to private construction contracts? Court says “Yes.”

Nathan is a member of the firm’s Construction Law Department. He can be reached at 612.359.7606 or nsellers@fwhtlaw.com Every construction litigator and many construction contractors are well-versed in the Spearin doctrine. The Spearin… The post Does the …

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Joint Labor-Management Safety Committees under the MNOSH Act

Jesse and Matt are members of the firm’s Construction Law Department. Jesse can be reached at 612.359.7637 or jorman@fwhtlaw.com. Matt can be reached at 612.359.7611 or mnelson@fwhtlaw.com Introduction …

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Responding to Benefit Fund Audits: Legal Framework and Recommendations for Union Contractors

Kasia is a member of the firm’s Construction Law Department. She can be reached at 612.359.7601 or kkokoszka@fwhtlaw.com Union contractors covered by collective bargaining agreements (“CBAs”) are normally required to make contributions to… The post Respon…

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OSHA Emergency Temporary Standard Requires Private Employers to Mandate Vaccination or Weekly Testing for COVID-19

Kasia is a member of the firm’s Construction Law Department. She can be reached at 612.359.7601 or kkokoszka@fwhtlaw.com As of November 5, 2021, the Emergency Temporary Standard (ETS) issued by OSHA requires… The post OSHA Emergency Temporary…

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FWHT’s 40th Anniversary Update

Dean Thomson and Matt Collins are members of the firm’s Construction Law Department. Dean can be reached at 612.359.7624 or dthomson@fwhtlaw.com. Matt can be reached at 612.359.7610 or mcollins@fwhtlaw.com. Forty years ago on… The post FWHT’s 40th Anniver…

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Early Mediator Engagement: Lessons from Master Mediators

Click here to read the article written for the Journal of the American College of Construction Lawyers by Dean Thomson entitled “Early Mediator Engagement: Lessons from Master Mediators”. Announcements Fabyanske, Westra, Hart &… The post E…

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Updates to the MN Department of Transportation Standard Specifications for Construction

Hugh Brown is a member of the firm’s Construction Law Department. He can be reached at 612.359.7663 or hbrown@fwhtlaw.com. As most contractors that contract with the Minnesota Department of Transportation… The post Updates…

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Minnesota and North Dakota Mechanic’s/Construction Lien Essentials

Matt is a shareholder in the Construction Litigation Department at the Fabyanske, Westra, Hart & Thomson law firm. He can be reached at 612.359.7610 or mcollins@fwhtlaw.com In Minnesota, contractors and material suppliers may… The post Minnesota and N…

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Covid-19 Briefing Paper: A Look Ahead

Elise is a member of the firm’s Construction Law Department. She can be reached at 612.359.7670 or eradaj@fwhtlaw.com. As we turn a corner into 2021, one word has been at the forefront of… The post Covid-19 Briefing Paper: A Look Ahead appeare…

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Initial Comments on the AIA A313 – 2020 Warranty Bond

Mark Becker and Colin Bruns are attorneys with Fabyanske, Westra, Hart & Thomson, PA and focus their practice in construction related matters. Mark can be reached at 612.359.7620 or mbecker@fwhtlaw.com. Colin can be… The post Initial Comments on the A…

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The Advocacy Preferences of Construction Arbitrators

Click here to read the article written for the Journal of the American College of Construction Lawyers by Dean Thomson and Michael T. Burke entitled “The Advocacy Preferences of Construction Arbitrators”. Announcements Once… The post The Advoc…

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Covid-19/Coronavirus Briefing Paper

Rob, Dean, Elise and Thomas are members in the firm’s Construction Law Department. Rob can be reached at 612.359.7648 or rsmith@fwhtlaw.com. Dean can be reached at 612.359.7624 or dthomson@fwhtlaw.com. Elise can be reached… The post Covid-19/Coronavirus B…

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Update on Minnesota’s Time-Bar Statute: The Minnesota Supreme Court Village Lofts Decision

Hugh Brown is a member of the firm’s Construction Law Department. He can be reached at 612.359.7663 or hbrown@fwhtlaw.com. In May 2019, this firm published an update discussing the Minnesota… The post Update on Minnesota’s…

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Employer Drug Testing: Managing Risk the Right Way

Hugh Brown and Rebecca Huting are members of the firm’s Construction Law Department. Hugh can be reached at 612.359.7663 or hbrown@fwhtlaw.com. For many employers, pre- and post-employment drug testing policies present a dilemma. … The post…

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Triggering Coverage Part B in the Construction Defect Dispute: A Theory Now Proven

Mark is a Chambers USA rated Construction Lawyer, A Fellow of the Construction Law Society of America, and a former Chair of the Construction Section of the Minnesota State Bar Association. Mark may… The post Triggering Coverage Part B in the Construction…

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New Legislation Gives Guidance on Procurement Protests

Hugh Brown and Lauren Ritchie are members of the firm’s Construction Department. Hugh can be reached at 612.359.7663 or hbrown@fwhtlaw. Lauren can be reached at 612.359.7604 or lritchie@fwhtlaw.com The Minnesota Legislature recently took… The …

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New Retainage Legislation Passed for Public and Private Work

Dean Thomson is a Shareholder in the firm’s Construction Law Department. Dean can be reached at dthomson@fwhtlaw.com or 612.359.7624. Based on subcontractor complaints about over-withholding and late release of their retainage, the Minnesota… The po…

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Questions Answered, Others Raised, on Minnesota’s Construction Time Bar Statute

Hugh Brown is a member of the firm’s Construction Law Department. He can be reached at 612.359.7663 or hbrown@fwhtlaw.com. Contractors rely on Minnesota’s construction-specific statutes of limitations and repose for certainty on the… The post Questi…

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Reminders for Protecting Your Right to Be Paid

Matt is a shareholder in the Construction Litigation Department at the Fabyanske, Westra, Hart & Thomson law firm. He can be reached at 612.359.7610 or mcollins@fwhtlaw.com Given a recent influx in requests for… The post Reminders for Protecting Your …

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OSHA’s Revised Stance on Workplace Drug Testing and Safety Incentive Programs

Hugh Brown and Rebecca Huting are members of the firm’s Construction Law Department. Hugh can be reached at 612.359.7663 or hbrown@fwhtlaw.com. In an important development for employers in the construction industry, the Occupational… The post …

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Make Sure Your Joint Venture Agreements Cover These Important Issues

Matt is a shareholder in the Construction Litigation Department at the Fabyanske, Westra, Hart & Thomson law firm. He can be reached at 612.359.7610 or mcollins@fwhtlaw.com Participants in the construction industry have long… The post Make Sure Your J…

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Legislative Update: A New Statutory Scheme for Determining When the Statute of Limitations Begins to Run

Dean Thomson is a Shareholder in the firm’s Construction Law Department. Dean can be reached at dthomson@fwhtlaw.com or 612.359.7624. He also served as the Co-chair of the MSBA Construction Law Section Legislative Committee… The post Legislative Update: A…

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The Guided Choice Process for Early Dispute Resolution

Dean Thomson is a Shareholder in the firm’s Construction Law Department. Dean can be reached at 612.359.7624 or dthomson@fwhtlaw.com The following article was originally published in The American Journal of Construction Arbitration &… The post The Gui…

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Changes To The New AIA B101-2017 and B103-2017 Owner/Architect Agreements

By Kristine Kroenke and Dean Thomson. Dean is a member of the firm’s Construction Law Department and can be reached at 612.359.7624 or dthomson@fwhtlaw.com. This Briefing Paper is a companion to our… The post Cha…

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The New 2017 AIA A201 General Conditions

Dean Thomson, Hugh Brown, and Kristine Kroenke are members of the firm’s Construction Law Department. Dean can be reached at 612.359.7624 or dthomson@fwhtlaw.com. Hugh can be reached at 612.359.7663 or hbrown@fwhtlaw.com. Kristine can… The pos…

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Legislative Update: Retainage and the Right to Stop Losing Money

Dean Thomson is a Shareholder in the firm’s Construction Law Department. Dean can be reached at 612.359.7624 or dthomson@fwhtlaw.com Despite concerns about increasing regulation, the construction industry in Minnesota continues to pass legislation… The po…

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Do Construction-Manager-at-Risk Contracts Alter the Spearin Doctrine?

Nathan Sellers is an associate in the firm’s Construction Law Department. Nathan can be reached at 612.359.7606 or nsellers@fwhtlaw.com The implied warranty of design adequacy protects contractors on traditional design-bid-build construction projects. The…

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Public Bidding: New Jurisdictional Hurdles for Minnesota Bid Protests

Tom Vollbrecht is a shareholder in the firm’s Construction Law Department. Tom can be reached at 612.359.7659 or tvollbrecht@fwhtlaw.com Public contracts are the life blood of many contractors and an important source of… The post Public Bidding: New Juris…

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Power and Communications Construction: 2015 and Beyond

I recently attended the 70th Annual Power & Communications Contractors Association (“PCCA”) convention, “unfortunately” located in Aruba. It was quite the hardship. Construction industry experts were assembled to discuss market opinions, t…

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Public Bidding: The City of Des Moines Solves a Problem That Appears Not to Exist

When it comes to awarding of government contracts to private contractors, the goal is to make sure that there is free competition among all of the contractors who submit bids such that the… The post Public Bidding: The City of Des Moines Solves a Problem …

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Is the New “Responsible Contractor” Bill Irresponsible?

Overview In order to be awarded any public project, the contractor or proposer must be found to be “responsible.” Sometimes, the term “responsible” is defined in the solicitation and part of determining the… The post Is the New “Responsible Contrac…

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Indemnity Wars: Anti-Indemnity Legislation Across the Fifty States

Click here to read the article written for the Journal of the American College of Construction Lawyers by Dean Thomson and Colin Bruns entitled “Indemnity Wars: Anti-Indemnity Legislation Across the Fifty States”. The post Indemnity Wars: Anti…

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What HR Needs to Know About the Women’s Economic Security Act

On Mother’s Day 2014, Governor Dayton signed the Women’s Economic Security Act (“WESA”) into law. The law includes the following provisions, many of which require employers to update policies, including handbooks: • Effective… The post What HR Needs to Kn…

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3D Printing: A New Dimension in Construction

Three dimensional (3D) printing is taking the world by storm. President Barack Obama recently said that “3D printing technology has the potential to revolutionize the way we make almost everything.”[1] News and scientific… The post 3D Printing: A New D…

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MN Department of Transportation Standard Specifications for Construction, 2014 Edition – Contractors Need to be Aware of MnDOT’s Significant Division I Revisions – Part 3 of 3 – Sections 1800 and 1900

This briefing paper is Part 3 of a three part series discussing the Minnesota Department of Transportation 2014 Standard Specifications for Construction. In Part 1, which can be found here on our firm’s… The post MN Department of Transportation Stan…

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MN Department of Transportation Standard Specifications for Construction, 2014 Edition – Contractors Need to Be Aware of MnDOT’s Significant Division I Revisions – Part 2 of 3 – Sections 1500 through 1700

This briefing paper is Part 2 of a three part series discussing the Minnesota Department of Transportation 2014 Standard Specifications for Construction. In Part 1, which can be found here on our firm’s… The post MN Department of Transportation Stan…

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MN Department of Transportation Standard Specifications for Construction, 2014 Edition – Contractors Need to Be Aware of MnDOT’s Significant Division I Revisions – Part 1 of 3 – Sections 1100 through 1400

As most contractors that contract with the Minnesota Department of Transportation are already aware, MnDOT has significantly revised its Standard Specifications for Construction. The 2014 Standard Specifications went into effect for projects let… The post…

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Serving Payment Bond Claims

SERVING PAYMENT BOND CLAIMS: GETTING CLOSE IS NOT ENOUGH – THIS ISN’T HORSESHOES AND ANOTHER ONE BITES THE DUST – INSURERS LOSE A COMMON ARGUMENT FOR WHY THERE IS NO COVERAGE FOR CONSTRUCTION DEFECT… The post Serving Payment Bond Claims …

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Will Your Insurance Cover an Award of Punitive Damages?

Ignorance is bliss. Punitive damages are not. Unfortunately, many contractors blissfully assume that if they are held liable for punitive damages, then their liability insurance will cover them. That may or may not… The post Will Your Insurance Cover an A…

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Unintended Consequences of a Federal Government Shutdown

Contractors who have had their construction projects suspended during the federal government shutdown (“Shutdown”) over the funding of the Patient Portability and Affordable Care Act, may suffer critical path delays and increased costs… The post Unintende…

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MnDOT Update Seminar

Click to read. The post MnDOT Update Seminar appeared first on Fabyanske, Westra, Hart & Thomson.

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Indemnity Wars

The battle in Minnesota over whether and how one party should indemnify another on a construction project has constantly been fought. After 30 years under one statutory scheme of allowable indemnity agreements and… The post Indemnity Wars appeared first o…

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Propriety of “Teaming” or “Exclusive” Agreements

Contractors competing for public construction projects face the challenge of making good faith efforts to meet participation goals for minority and women-owned businesses (“DBEs”). In a perfect world, all available DBEs would be… The post Propriety of …

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Reminders and Developments in Minnesota Construction Case Law for 2012

Cases coming from the Minnesota Court of Appeals and Minnesota Supreme Court in 2012 offer some important practice reminders for owners, contractors, subcontractors, and suppliers. The cases also provide some new rules about… The post Reminders and Develo…

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P3s: Potential Profit or Pitfall

Public Private Partnerships (P3s) are being more frequently used to address the shortfall of public funding available for necessary public projects. This month’s Briefing Paper explores some of the risks and rewards of… The post P3s: Potential Profi…

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Ramifications of the Minnesota Supreme Court’s 1/23/2013 “Bolduc” Decision

Few cases in recent years have garnered as much attention or interest as the case of Engineering & Construction Innovations, Inc. v. L.H. Bolduc, Inc. In construction law circles, the case has become known simply… The post Ramifications of t…

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The Right and Benefit of Independent Defense Counsel Under CGL Insurance

One of great benefits of Commercial General Liability (“CGL”) insurance is that it should provide a complete defense to a lawsuit even if only part of that lawsuit involves a covered claim. Typically… The post The Right and Benefit of Independent Defense …

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The Business Risk Doctrine

Click to read. The post The Business Risk Doctrine appeared first on Fabyanske, Westra, Hart & Thomson.

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[Don’t] “HOLD THE PHONE!”

A new regulation banning mobile phone use by non-governmental drivers of commercial motor vehicles went into effect on January 3 of this year. The regulation penalizes violators, of course—however, it also penalizes the employers of… The post [D…

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Incomplete Repairs

Click to read. The post Incomplete Repairs appeared first on Fabyanske, Westra, Hart & Thomson.

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Protecting Your Rights: the Minnesota State Shutdown and Its Aftermath

The effects of Minnesota’s government shutdown have been felt throughout the state, most notably on members of the construction and design industry. The forced work suspension has affected both pending projects and future… The post Protecting Your R…

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The Construction Industry’s Response to the Government Shutdown

Click to read. The post The Construction Industry’s Response to the Government Shutdown appeared first on Fabyanske, Westra, Hart & Thomson.

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Employee Rights and Notification Requirements: Right to Access Personnel Records

Many employers provide employee handbooks to new employees. Though an employer must be careful regarding what it says in such a handbook, handbooks are a wise practice in many respects, as they allow… The post Employee Rights and Notification Requirements…

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Managing Subcontractors in the Midst of Economic Meltdown

The current economic decline has hit the stage when those who were just hanging on by their fingernails are starting to fail and fall. While contractors always need to be attentive to ensure… The post Managing Subcontractors in the Midst of Economic Meltd…

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MnDOT’s New DBE Special Provision: Important Information for Bidders on Federally-Funded Contracts in Minnesota

As many contractors already know, for the past year or more, MnDOT has been engaging in a process to revise its implementation of the federal Disadvantaged Business Enterprise (“DBE”) program. The result of… The post MnDOT’s New DBE Special Provisio…

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The Stimulus: One Year Later

Introduction President Obama signed the American Recovery and Reinvestment Act (“ARRA”) into law on February 17, 2009. Now, over one year later, the big question is, what effect did it have? Where Did… The post The Stimulus: One Year Later appeared first …

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The HIRE Act, Work Opportunity Tax Credit and the Minnesota Jobs Bill

It’s spring time again! As you are gearing up for another busy construction season, don’t miss the opportunity to take advantage of some new (and old) tax incentive programs such as the Hiring… The post The HIRE Act, Work Opportunity Tax Credit and …

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Ten Defenses to a Construction Defect Claim

Many construction Contractors and Subcontractors have found themselves on the receiving end of a complaint about the quality of the result of their work. Project managers and construction executives should be cognizant of… The post Ten Defenses to a Const…

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Construction Law Year in Review: Selected Cases From 2009

This briefing paper discusses noteworthy legal decisions involving construction law issues that arose last year in the Minnesota Court of Appeals, the United States District Court for the District of Minnesota, and the… The post Construction Law Year in R…

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Residential Construction Contracts

Introduction Minnesota Statutes chapter 327A was recently amended to require that contractors include the existing statutory implied residential construction warranties as express warranties in all contracts for new home construction and contracts for… Th…

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The New Minnesota False Claims Act

The Federal Civil False Claims Act allows the federal government to pursue fines and treble damages against contractors who assert “false” claims. Fortunately, the scope of the Federal Act was limited and applied… The post The New Minnesota False Claims A…

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Overcoming the Challenges of Differing Site Conditions

Introduction Generally speaking, a “differing site condition” is a physical condition encountered at the project site that is materially different than indicated in the contract documents (or materially different than what would ordinarily… The post Overc…

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Employment Issues: Important Changes to the ADA and FMLA

2008 brought about many changes that affect employers and employees in the areas of disability discrimination and unpaid leave entitlement.Specifically, amendments to the Americans with Disabilities Act of 1990 (“ADA”) and the Family… The post Employment …

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Pre-Lien Notice: The First Step to Enforcing Mechanic’s Lien Rights

Introduction In today’s economy, many contractors, subcontractors, and suppliers have become all too familiar with the following scenario. Labor or materials are provided for an improvement to real property, but payment is not… The post Pre-Lien Notice: T…

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Construction Opportunities in the 2009 Economic Stimulus Package

On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act (“ARRA”) into law, delivering on a campaign promise to “stimulate” the U.S. economy with billions of dollars in new spending.… The post Construction Opportunities in t…

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A Modest Proposal: Conflicting Judicial Decisions Should Mandate Insurance Coverage for the Insured Under the Ambiguity Doctrine

Click here to read. The post A Modest Proposal: Conflicting Judicial Decisions Should Mandate Insurance Coverage for the Insured Under the Ambiguity Doctrine appeared first on Fabyanske, Westra, Hart & Thomson.

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The Grass is Not Always Greener on a Sustainable Roof

As Kermit the Frog famously remarked, “It’s not easy being Green.” Ignoring his warning, every developer, designer, and contractor in the construction industry is rushing to become “Green.” While environmentally advantageous or “Green”… The post The Grass…

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Preparing for Y2K-IX: What You and Your Subcontractors Need to do Before you Ring in the New Year

A. Introduction By now, many Minnesota contractors who subcontract with sole proprietorships and individuals are probably aware of the problem they face on January 1 2009. For those of you (i.e. contractors and… The post Preparing for Y2K-IX: What You a…

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New Federal Regulations Require Contractors to Have Compliance Programs

All contractors are, of course, required to abide by federal laws, but as of December 24, 2007, the federal government has added a new requirement for contractors working on federal government contracts in… The post New Federal Regulations Require Contrac…

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First You Say You Do and Then You Don’t and Then You Say You Will and Then You Won’t

Introduction Some might say that the above quoted song lyrics from the Ames Brothers’ 1951 hit, Undecided, comes from the construction contractor’s theme song. What people say and do often differ dramatically, depending… The post First You Say You Do and …

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Lessons Learned from A to Z (Sort of) in 2007

This briefing paper discusses 24 legal decisions from 2007, which highlight construction law issues that arose in Minnesota courts last year. The cases are listed alphabetically by topic, which topics include arbitration, bidding,… The post Lessons Learne…

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2007 Revisions to AIA A201 Document

Introduction On November 5, 2007, the American Institute of Architects (“AIA”) published the 2007 edition of its A201 document, General Conditions of the Contract for Construction. The 2007 edition contains significant revisions to… The post 2007 Revision…

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Negotiating and Drafting Construction Agreements

The Golden Rule or the Plumber’s Credo It is often said that the negotiation of construction contracts is governed by the “Golden Rule.” That is, the one with the gold, rules. It is certainly… The post Negotiating and Drafting Construction Agreements appe…

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Now You See it, Now You Don’t, Now You See It Again (Maybe)-Contribution & Indemnity Claims Under § 541.051

“Don’t it always seem to go, that you don’t know what you got ‘til it’s gone?” (Joni Mitchell, 1970) With all of the changes to Minn. Stat. § 541.051 during the past fifteen… The post Now You See it, Now You Don’t, Now You See It Again (Maybe)-Cont…

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The New Era of Best Value Public Procurement

Many public agencies have for years been advocating the use of “Best Value” procurement as an alternative to awarding public construction contracts to the lowest, responsible bidder. Several years ago, legislation was passed… The post The New Era of Best …

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“Knowledge is Power”

Statutes commonly referred to as “Freedom of Information Acts” (FOIAs) or less commonly as “Data Practices Acts” are powerful tools that contractors and subcontractors engaged in public construction should use. Generally, FOIAs require… The post “Kn…

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A Project Manager’s Guide to Common Construction Claims

Introduction When talking with contract managers and contractors about construction claims, it is quite common to meet experienced professionals who fail to identify claims as they develop during a project. Before an A/E,… The post A Project Manager’…

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The Tax Increase Prevention and Reconciliation Act of 2005, Section 511

Introduction They say that no one is safe when Congress is in session. Well, Congress is at it again. Buried deep within the Tax Increase Prevention and Reconciliation Act of 2005 (TIPRA) [1]… The post The Tax Increase Prevention and Reconciliation Act of…

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Union Pension Funds

Introduction Many multiemployer defined-benefit pension plans in the construction industry are underfunded, which should be a cause for concern by signatory contractors, union officials and tradesmen alike. Banking and surety executives are also… The post…

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Building Information Modeling – BIM

A New Era in Design The everlasting quest to exceed Owners’ expectations is driving innovation in the construction industry. Owners are demanding that complex projects be completed more quickly and cheaply. These demands,… The post Building Information Mo…

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Section 199 Deduction

Introduction Section 199 of the Internal Revenue Code offers anyone engaged in an eligible manufacturing or production activity a deduction for those activities. When fully phased in, the deduction could reduce the effective… The post Section 199 Deductio…

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Legal Audit

The New Business Year The ‘06 business year is upon us. Last years’ financial statements are being tallied and we hope yours was a pleasant one. As we place old audits in the… The post Legal Audit appeared first on Fabyanske, Westra, Hart & Thomson.

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Hurricane Contracting

Banding Together As I begin to write this, parts of New Orleans are still under water, thousands of souls are lost, tens of thousands are homeless and countless more are returning to a… The post Hurricane Contracting appeared first on Fabyanske, Westra, H…

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New Minnesota Statutes Allow Design-Build, CM at Risk and Purchase Order Contracting for Public Projects

Click here to read. The post New Minnesota Statutes Allow Design-Build, CM at Risk and Purchase Order Contracting for Public Projects appeared first on Fabyanske, Westra, Hart & Thomson.

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Succession Planning for the Closely-Held Business

I. Introduction It is the American dream to start your own business, help it to grow, and leave something behind for your family. According to the United States Small Business Administration, Office of… The post Succession Planning for the Closely-Held Bu…

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Construction Disputes

Introduction As I was considering what I could tell contractors that they should know and do to reduce the risks of becoming involved in an expensive construction dispute, I considered these alternative themes:… The post Construction Disputes appeared fir…

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New Developments in Insurance Coverage

Introduction Not only is the price of Commercial General Liability (CGL) insurance in flux, but so also is the coverage actually available. One of the unique but common features of construction contracts is… The post New Developments in Insurance Coverage…

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Notice on Notice

Introduction Everyone involved in construction knows that notice should be given on a variety of issues. For example, all standard form contracts require that the Contractor give the Owner and the Architect/Engineer (“A/E”)… The post Notice on Notice appe…

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Statute of Limitations Update

Introduction In the six weeks between April 1, 2004 and May 15, 2004, all three branches of Minnesota State government weighed in on the correct application of the statute of limitations for claims… The post Statute of Limitations Update appeared first on…

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Steel Yourself for Price Increases

Introduction In recent months, prices for steel have increased precipitously. As a result, suppliers and fabricators of steel are having great difficulties honoring price commitments they gave months ago, which could result in… The post Steel Yourself for…

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Top 10 Construction Law Statutes in Minnesota

We are often asked for a list of the most important statutes relating to construction or for citations to these statutes. Therefore, this month’s Briefing Paper provides a brief discussion of and citations… The post Top 10 Construction Law Statutes in Min…

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Minnesota’s New “Conceal and Carry” Gun Law – What are Your Options?

The new law, known formally as the “Minnesota Citizens Personal Protection Act of 2003,” went into effect on May 28, 2003. By simplifying the application procedure and lowering qualification standards, the law now… The post Minnesota’s New “Co…

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Pay-If-Paid Clauses

Introduction In any construction project, the general contractor typically bears the risk of the owner’s insolvency or inability to pay for the project. Over the years, general contractors have attempted to shift the… The post Pay-If-Paid Clauses ap…

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OSHA’s New Steel Erection Standards – Something for Everyone

Introduction The nation’s iron workers have enhanced workplace safety protections as a result of the Occupational Safety and Health Administration’s (“OSHA”) new steel erection standards in construction. [1] The new standards address hazards… The post OSH…

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Sales Tax Exemptions for Construction Projects

If it is true that the two certainties in life are death and taxes, [1] human endeavors to avoid the inevitable are as hopeless as they are limitless. And yet, while evading death remains the… The post Sales Tax Exemptions for Construction Projects appear…

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We’re Not in Kansas (Minnesota) Any More

Introduction Like any contractor, one of your goals is to increase your revenue. One way to do so is to expand your business into new geographic areas. The purpose of this Briefing Paper… The post We’re Not in Kansas (Minnesota) Any More appeared fi…

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Reverse Auction Bidding

The authors of this month’s Briefing Paper prepared an article on reverse auction bidding which has been adopted by the Minnesota Construction Industry Cooperative Committee (CICC) as its position on the topic. The… The post Reverse Auction Bidding appear…

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Effects of Bankruptcy on a Construction Project

Imagine a renowned construction company with ongoing projects in the hundreds of millions of dollars. The construction company builds highways, tunnels, bridges, dams, and roads around the world. Many of its projects cost… The post Effects of Bankruptcy o…

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One-Call Excavation Notice System is a Sword but not a Shield

Introduction On July 9th, the Minnesota Court of Appeals issued a decision construing Minnesota’s One-Call Excavation Notice System (“One-Call”) in a manner inconsistent with what many believe is the general idea behind the… The post One…

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Statutory Update

Introduction Traditionally, Minnesota statutes have required that public projects be awarded to the contractor that submitted the lowest, responsible bid based on a fully developed set of plans and specifications prepared by an… The post Statutory Update …

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Legislative Update

Introduction “No Damage For Delay” clauses have caused contractors headaches for decades. The author of this month’s Briefing Paper drafted legislation which banned use of these clauses on public projects, and thanks to… The post Legislative Update appear…

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How to Get the Most Out of Construction Mediation

With mediation of construction disputes becoming more prevalent, it is important to understand the process so that you can obtain optimum results in mediation. With that thought in mind, this month’s briefing paper… The post How to Get the Most Out of Con…

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Rules of Effective Communication

INTRODUCTION As attorneys, we are constantly advising our clients to document job history, events, potential claims, etc. In this month’s Briefing Paper, we offer several “rules” of effective communication that every construction organiz…

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Filing and Enforcing a Valid Mechanics’ Lien

Introduction Mechanics’ liens are valuable tools that can be used to protect persons that provide materials or labor for the improvement of real property. However, this remedy is only available if you follow… The post Filing and Enforcing a Valid Mechanic…

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Employers’ Rights and Responsibilities Regarding Medically Based Leaves, Absences, and Return to Work Issues

Employers are often faced with legal issues or questions involving employees who have been absent or taken leaves for medical reasons. The legal implications of an employer’s actions regarding these employees are complicated… The post Employers’ Rig…

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Court Questions “Market Recovery” Subsidies

On April 16, 2001, the United States District Court for the District of Minnesota indicated that certain types of Market Recovery Program (“MRP”) subsidies are likely illegal, and that their use on publicly… The post Court Questions “Market Recovery…

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e-Construction

As any vendor of internet services will tell you, e-Construction is the next “wave” of change in the construction industry. In fact, an ENR article recently predicted that 10% of construction procurement will… The post e-Construction appeared first on Fab…

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What You Don’t Know Can Hurt You

Introduction Imagine this: you are just putting the finishing touches on your bid for a large construction project for the federal government, a major renovation at a federal office building. The building is… The post What You Don’t Know Can Hurt Yo…

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Avoiding Negligent Hiring and Retention Claims Related to Alcoholism and Drug Abuse

Introduction In recent years, public pressure has forced a significant crackdown on drug and alcohol related behavior. Not surprisingly, a body of law is emerging involving claims against employers for injuries caused by… The post Avoiding Negligent Hirin…

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Labor Shortages – What do You do When You’ve Got the Work, but Nobody to do it?

Today, there is more construction work available to contractors than there are workers to perform the work. There are, literally, hundreds of unfilled calls into the local unions for electricians, plumbers, fitters, masons,… The post Labor Shortages ̵…

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Hiawatha Light Rail Transit

Introduction Fabyanske attorneys Dean Thomson and Aaron Dean successfully challenged MnDOT’s procurement process for the $580 million Hiawatha Light Rail Transit (“LRT”) project in what is probably the largest bid protest in Minnesota’s… The post Hiawatha…

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Coordination of Multi-Prime Contracts

Introduction Traditionally, on large construction projects, an owner contracted with a general contractor for the construction of the entire project. The owner had a single contract with the general contractor. As a result,… The post Coordination of Multi…

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Creative Lawyering

Introduction It is fashionable these days to disdain litigation in favor of partnering, mediation, mini-trials, arbitration, early neutral evaluations, and other forms of “alternative dispute resolution.” Although each of these devices has its… The post C…

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Bridge Builder Obtains $2.5 Million Award – Largest Recovery Against North Dakota DOT

Introduction Marv Fabyanske and Steve Melcher, attorneys with Fabyanske, Westra & Hart, P.A., recently obtained a $2.5 million dollar arbitration award against the State of North Dakota’s Department of Transportation for Morgen &… The post Bridge …

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Recent Developments in Wisconsin Construction Law

Wisconsin. One just can’t help but think of cheese, beer, and the Green Bay Packers (well, two out of three isn’t bad). Construction law probably does not immediately spring to mind. As competition… The post Recent Developments in Wisconsin Construction L…

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A New Eichleay Case

Click here to read. The post A New Eichleay Case appeared first on Fabyanske, Westra, Hart & Thomson.

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New CGL Pollution Endorsements – Don’t Leave Home Without Them

Click here to read. The post New CGL Pollution Endorsements – Don’t Leave Home Without Them appeared first on Fabyanske, Westra, Hart & Thomson.

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Recent Advances in Computer Technology Streamline Project Documentation and Claims Presentation

Introduction The new federal court building in downtown Minneapolis provides a peek into the future world of computer-assisted litigation. Each courtroom has all the necessary hardware connections needed so clients and their counsel can… The post Recent A…

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Show Me the Money

Introduction Although many contractors would deny it, the practice of bid shopping is alive and well. Whether bid shopping is prudent economic analysis, or the product of greed practiced by the immoral, depends… The post Show Me the Money appeared first o…

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Bid Shopping

Introduction Although many contractors would deny it, the practice of bid shopping is alive and well. Whether bid shopping is prudent economic analysis, or the product of greed practiced by the immoral, depends… The post Bid Shopping appeared first on Fab…

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Short, Straight Answers to Both Common and Uncommon Legal Questions

This Briefing Paper is offered as a smorgasbord of answers to some rare and unusual legal questions combined with others more frequently encountered. The answers to some of these questions will undoubtedly change periodically,… The post Short, Straight An…

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New Legislation Affecting Payment Obligations

Introduction For several years, the Minnesota Chapter of the American Subcontractors Association (“MnASA”) has been leading the efforts of a coalition of subcontractor organizations to pass a broad package of legislation governing the… The pos…

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Competitive Bidding

Click here to read. The post Competitive Bidding appeared first on Fabyanske, Westra, Hart & Thomson.

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Spring Lake Contractor Recovers $866,000 from the DNR on a $156,000 Contract

Click here to read. The post Spring Lake Contractor Recovers $866,000 from the DNR on a $156,000 Contract appeared first on Fabyanske, Westra, Hart & Thomson.

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Labor Update

Introduction Union membership in the construction industry has steadily declined since the mid-seventies. Approximately 40% of construction workers were members of the AFL-CIO building and construction unions in 1973. By 1994, that ratio… The post Labor U…

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The New Minnesota AGC Standard Subcontract

Introduction The Minnesota AGC Standard Subcontract Agreement is one of the most widely used subcontract forms in the region. Although it was revised slightly in 1989, the current form of the subcontract has… The post The New Minnesota AGC Standard Subcon…

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