construction | Construction Law in North Carolina

A group of local citizens, designers, and school board Building Committee members in Eagle Ridge, Wisconsin has issued a statement expressing their belief that LEED certifications are now suspect, following the failure of the USGBC to withdraw LEED Certification from the Northland Pines High School. The group had appealed a decision to dismiss their claims that the LEED Gold certification for the school should be revoked, despite clear evidence which, they claim, shows that the building did not meet specific ASHRAE Standards, which are prerequisites to getting a LEED (green) building certification.

They call into question the value of LEED certification if there is no verification of a purported building’s “green” credentials.

You can download their statement of concern “USGBC and LEED Credibility Destroyed”.

For more information relating to the case, Stephen Del Percio’s article “Wild Week for Green Real Estate Law” is an excellent summary.

As previously mentioned on this blog, there is no clear idea of how the Courts would treat any LEED-specific claims. Yet. Stay tuned.

UPDATE: This afternoon, the USGBC has issued a statement standing by their findings:

LEED’s intent, and USGBC’s mission, is about helping people learn about and understand how to design, build and operate better buildings. Buildings are complex systems of systems and any of the 100,000 of decisions associated with design, construction and operation can always be second-guessed. We are confident that our due diligence has been more than sufficient to put these issues to rest, and we are moving forward to focus our efforts where they do the most good — advancing the market uptake of green buildings and communities that is at the heart of our work

The full statement and commentary can be reviewed at Chris Cheatam’s article “Breaking: USGBC Stands by Its LEED Challenge Decision.”

Paperwork by luxomedia via Flickr

In the Contract Risks Management Group on LinkedIn, L.H. Chin wrote an article about file keeping for contract risk management. Basically, his premise is that if you cannot keep your Project files orderly, you have exponentially increased your chances of a problem later. His particular example dealt with originals versus reproduced copies, which is only somewhat germane to North Carolina contracts. (Here, copies can be used as evidence most of the time—though not always). His main point, however, about the ability to minimize future risks by having good document control policies in place, is something every project manager should think about.

Here are a few tips of my own in that regard:

1. File all communications in one place. Don’t keep faxes in one file, email in another, and letters in a third. Don’t keep incoming and outgoing correspondence separated by vendor. Keep it all in one chronological file. If you ever find yourself needing legal assistance, this will save many hours and untold stress for everybody.

1.b. Caveat: don’t feel like you need to print out every email. Do, however, maintain a separate email e-folder for the Project, and go ahead and print those really crucial, smoking gun emails.

2. If you insist on violating Rule 1 (and I know those of you who read this blog would never consider such a thing, right?): Have all the files, categories, and such you want, but please also make a “master” chronological file of all correspondence. Just do it.

3. If you have any communications with your lawyer, an insurance representative (outside of the normal bonding paperwork), or otherwise have documents relating to potential claims, do keep them separate. Put all such correspondence, in a folder marked “legal,” away from the Project file to prevent inadvertent disclosure to anyone else if there is ever litigation on the matter.

3.b If in doubt whether something should be in “legal” or “correspondence”, err on the side of “legal.” Your attorney can always change the classification later, but she can’t put the genie back in the bottle if something that is privileged is mistakenly given to a party suing you.

If you have any questions about these tips, or want to discuss your current procedure for record management, shoot me an email. My contact information can be found on my Firm bio or at the Footer of the Blog. Or, you can simply leave me a note in the comments.

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Photo: “Paperwork” by luxomedia via Flickr/CC license.

Just a quick resource note:

Photo by Andres Rueda via Flickr*

As anyone who has had the misfortune of sitting through the North Carolina General Contractor’s exam can tell you, there are two very important deadlines to keep in mind if you are not getting paid on a project– 120 days and 180 days. These are dates associated with filing a Notice of Claim of Lien on Real Property and Notice of Claim of Lien upon Funds, and the date associated with perfecting a Claim of Lien with a Complaint. Once these dates have passed, you may still sue to collect unpaid fees, but your statutory lien rights are lost (and with them, your most likely chance to get attorney fees). There is no room for error here. One good site to bookmark is this online Date Calculator. Use it to plug in the date of last furnishing to determine your notice and complaint deadlines. For future reference, I have added a permanent link to this calculator to the “Resources” page.

50 state lien law resource:

If you need to know the basic notice and filing requirements of lien laws in other states, check out this article which details mechanic lien law information in all 50 states.

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Photo “ASIO fx-991MS SCIENTIFIC CALCULATOR” by Andres Rueda via Flickr and made available via an Attribution-Noncommercial-ShareAlike 2.0 License.

Construction don’ts:

2. Don’t worry about how someone will actually reach the threshold to get into the building– that’s what step ladders are for!

Photo by William Veerbeek via Flickr*

3. Don’t worry your head about such petty issues as structural integrity– it’s only a shed, right?

Photo by RogueSun Media via Flickr*

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* Photo credits: “An extra room” by JaviC; “Entrance, Ufa/RU, 2009” by William Veerbeek; “Bad Construction P1000892” by RogueSun Media. All via Flickr and made available via an Attribution-Noncommercial-ShareAlike 2.0 License.

While we have previously looked at direct contractor-to-contractor lawsuits and contractor-to-design professional lawsuits, I have said very little about the role of subcontractors in the multi-prime system.

In the Bolton case addressed earlier, Bolton made a claim against another prime contractor on behalf of itself and its subcontractor.

However, in 2004 the Court of Appeals dealt with the issue of a subcontractor making a direct claim against a prime contractor other than the contractor for which the sub performed its work. Pompano Masonry Corporation v. HDR Architecture, Inc., 165 N.C. App. 401, 598 S.E.2d 608 (2004).

That case involved the Biological Science Research Center at UNC-CH . HDR was the “project expeditor” under a separate contract with UNC, responsible for preparing the project schedule and coordinating work between the prime contractors.

Metric Constructors served as the prime general contractor, and Pompano Masonry was a subcontractor to Metric. Pompano sued HDR directly as the project expeditor, and the court allowed the case to proceed, holding that subcontractors to prime contractors could sue other prime contractors directly.

The court held that HDR could be sued directly by a subcontractor to which it had no contract for economic injury resulting from its alleged negligent performance of its duties as project expediter. Citing its earlier decision in Davidson, the court held that liability exits due to the “working relationship” and “community of interests” despite the fact there was no contractual privity between Pompano and HDR.

Conclusion

The moral of the story with regard to this series of cases? Never assume that you cannot be sued by someone because you don’t know them, you have no contract with them, you are a licensed professional, or they are on a different “tier” than you on the project. You have duties to all parties on a construction project, and the multi-prime statute in North Carolina gives yet another arrow in the litigator’s arsenal which could be pointed at your chest.

Are you having fun yet? Next blog post will be on a less “scholarly” topic, I promise!

Construction Law in North Carolina

The ORIGINAL blog for architects, engineers, designers, & other construction professionals

Tag Archives: construction

LEED Credibility Challenged– UPDATE

How to Smartly Handle Project Documents

Need to caclulate 120 days from date of last furnishing for a notice of lien?

Just a quick resource note:

50 state lien law resource:

Bad Construction Design– a lighthearted post

Construction don’ts:

Even Subcontractors can sue other Prime Contractors Directly on State projects (Law note)