The rise of social media, blogs, and Internet forums has produced a variety of positive and negative consequences for society. For example, access to news and information, the free flow of ideas, and the ability to connect with others have all increased substantially. On the other hand, cyberspace has promoted misinformation, gossip, frivolous pursuits, and Read More
Trolls Beware: Kentucky Court of Appeals Issues New Test to Discover Identity of Anonymous Internet Posters in Litigation
October 23, 2014
Contracts Contingent on the “Satisfaction of the Buyer”
December 13, 2013
A “satisfaction” clause is a fairly common provision in a variety of contract types. You have likely seen such a clause before or perhaps been a party to a contract involving one. Satisfaction clauses can cover a wide range of subjects, but they often appear as contingencies in contracts for the sale of real property.
Buyers Beware: Kentucky Courts will not Protect You from “Unwise Decisions”
October 23, 2013
In recent years the nation has engaged in public debate over the degree to which the government should “protect us from ourselves.” One example that garnered media attention was New York Mayor Michael Bloomberg’s attempt to ban big sodas from NYC restaurants (it was struck down by a New York appellate court). The goal of the measure was to combat a growing obesity problem in the city.
Bad Fences Make Bad Neighbors: Homeowners and Easement Rights
September 6, 2013
Everyone has heard some form of the proverb “good fences make good neighbors.” A recent Kentucky Court of Appeals opinion dealing with a dispute between neighbors over a shared driveway called to mind the “good fences” proverb.
Employers Targeted: Liability for the Acts of Employees
July 22, 2013
Employers have always been a favorite target for lawsuits when their employees cause personal injuries. The reason for this is simple: they have the money. An example from a recent Kentucky Court of Appeals case illustrates a common fact pattern.
Update on Ohio Construction Reform
May 17, 2013
The DBL Construction Group has reported on the pioneering Ohio Construction Reform Act (OCR) since its enactment in 2011 and throughout its implementation during 2012. In short, OCR transformed Ohio’s outdated approach to public construction, which previously permitted only multiple prime contracting, by allowing several alternative delivery methods.
Does the Acceptance of a Bid Create a Binding Contract?
April 29, 2013
Those in the construction industry typically understand the basics of contracts. Even the word “contractor” reflects their regular use and experience with them. Nevertheless, the question of whether acceptance of a bid creates a binding contract comes up frequently. This question is not always answered easily, but a look at the legal nature of contracts helps answer it.
Buyers Beware of Goods "Sold As Is"
April 10, 2013
Over the past several years I have written a number of posts on this blog discussing the importance of reading contracts before signing them. The wisdom of this practice is obvious. Nevertheless, many people, including sophisticated businesspersons, routinely sign contracts before reading their terms.
Don’t Procrastinate: Know Your Statutes of Limitations
February 21, 2013
Most people are generally aware of the idea behind statutes of limitation. They operate to set a time limit for filing a lawsuit in a civil case. Hopefully you will not encounter the need to consider a statute of limitations—that would likely mean you have been injured (and seek to file suit) or that you have been sued! Nevertheless, if you find yourself in such a predicament, understanding some basics about statutes of limitations can help.
Performance and Payment Bonds on State Construction Projects
November 13, 2012
The economic downturn that began with the subprime mortgage crisis in 2007 and has continued through the present has not spared the construction industry. With the private construction market struggling, many contractors refocused their business toward public projects. The increased importance of public projects to contractors continues today. For these reasons, this article provides a brief review of a fundamental public construction law in Kentucky, its “Little Miller Act.”
Defending the Frivolous Lawsuit: Can You Recover Your Legal Fees?
September 27, 2012
As a member of DBL’s Civil Litigation Practice Group, I frequently defend small and medium-sized businesses against all sorts of lawsuits. While being sued is not a regular occurrence for most such companies, it remains a cost of doing business that many must suffer at some point. A recent case I read reminded me of a frequent question these clients ask at the outset: “can I recover my legal fees if I win.” Unfortunately, my response to this question often begins with “probably not.”
The Kentucky Court of Appeals Affirms the Broad Application of the Open and Obvious Doctrine
August 9, 2012
The classic “slip and fall” case has been a constant part of personal injury litigation throughout American legal history. At least in more recent times, the public seems to hold a generally cynical opinion about these sorts of lawsuits.
When Subs Renege On Their Bids, What Are The Contractor’s Legal Remedies?
August 6, 2012
The general contractor for a project may often find itself in a vulnerable position. One such instance of this can arise as the contractor submits its bid and contracts with the owner of a project. In arriving at its bid, the contractor obviously must consider the cost of its performance. The determination of the cost of performance necessarily includes calculating the sum of the subcontractors’ bids for their work.
Developers: If you want a road to be private, so say in the plat
May 31, 2012
The Kentucky Court of Appeals just issued an opinion on April 13, 2012, hammering home the strict requirements imposed on developers that must be met in order to make a subdivision street private (as opposed to a public road).
Dealmaking, Contracting, and the Parol Evidence Rule
May 16, 2012
This blog follows up on an article I wrote last year emphasizing the obvious (but often overlooked) importance of actually reading a contract before signing on the dotted line. As pointed out in that article, a court will presume that one has read a contract and agreed to its contents if he or she signs it.
Ohio State Architect's Office Publishes CM at Risk Construction Documents for Public Projects
February 9, 2012
On February 3, 2012, the Ohio State Architect’s Office published the necessary contract documents for the construction manager at risk project delivery method on Ohio public construction projects. This release comes as part of the ongoing implementation of the laws and regulations making up the Ohio Construction Reform (OCR) and will be of great interest to the Buckeye State’s construction industry.
Clicking “Agree”: A Brief Discussion on “Terms and Conditions” For Technology Users
October 28, 2011
In today’s cyber-society, the electronic services, programs, and technology that we use on a daily basis often come with the unavoidable “Terms and Conditions.” The technology product typically confronts us with such terms through a long list of “fine print” concluded by a clickable box labeled “Agree.” I would venture that all the readers of this blog have encountered this. Most of you probably click “Agree” without reading the fine print or giving the matter a second thought.
Contractors Beware: You May Have “Constructive” Knowledge of Safety Violations and Not Even Know It
October 18, 2011
The Kentucky Court of Appeals issued a decision this summer reinforcing the strict burden placed on contractors to comply with safety regulations. Specifically, the decision requires employers to take personal responsibility to ensure that their employees on the work site follow those safety regulations. To issue a monetary penalty for a safety violation, the Kentucky Occupational Safety and Health Review Commission (KOSHRC) must find that the employer had knowledge of the violation. However, the knowledge requirement includes either “actual” or “constructive” knowledge. With that in mind, contractors need to understand that KOSHRC and the Kentucky Courts interpret “constructive knowledge” very broadly.
Damages Experts in Construction Defect Cases – You Need Two
March 24, 2011
Some confusion has arisen in construction defect cases as to the proper measure of damages and the evidence needed to prove them. The two competing theories for measure of damages are: 1) the cost of repair or restoration; and 2) the diminution in value of the property resulting from the defect. The Kentucky Courts answer the question by stating that the measure of damages is the cost of remedying the defect as long as it is reasonable to do so or the diminution in the value of the building by reason of the defect, in the alternative.
Bring the Decision-Makers to Mediation
March 14, 2011
I recently read an article explaining ways to increase the likelihood of success at mediation. The article presented the advice in the negative, that is, mistakes to avoid. One of the key points presented was: Do not leave the decision-makers at home. I reflected on my experiences and provide the following commentary on this advice, but from a positive—must do—perspective.
If You Want to Arbitrate in Kentucky, You Must Say So
December 28, 2010
I recently read an article on the “essential terms” needed in an arbitration clause to achieve cost-effective arbitration. I then reviewed a Nashville lawyer’s thoughtful commentary on the article, “Essential Terms to Include in an Arbitration Clause.” Being a lawyer, after all, I felt compelled to throw in my two cents.
Risk Management for Contractors: Follow Safety Regulations,Read Your Workers’ Comp Policy
April 23, 2010
The conscientious contractor seeks to prevent accidents on the construction site for a number of both ethical and economic reasons. Nevertheless, accidents inevitably occur, even when care is taken. However, by following a few basic precautions, the contractor can both reduce the risk of accident and limit its out-of-pocket workers’ compensation liability in the event Read More
Enforcing Your Bargain: The Basics of Contract Claims Against the Commonwealth
July 9, 2009
The American Recovery and Reinvestment Act (ARRA) will undoubtedly fund major public construction projects in Kentucky in the immediate future. Indeed, Governor Beshear recently announced through the “Kentucky at Work” program that the Commonwealth will receive $3 Billion in federal stimulus funds over the next two years under the ARRA. Notably, a large percentage of Read More
