Author: William Porter

It has become much easier for trade contractors and their attorneys to follow the herd and plod along in a wasteful and costly construction defect matter. Challenging the norm is all too rare in this business. However, there can be great advantages to being the pot-stirrer. Trade contractors and their attorneys (insurance retained or private) should plan out a meaningful strategy at the outset of every case, including exploring motions challenging the pleadings. The outcome, if successful, can save the trade contractor (and its insurer where applicable) tens of thousands of dollars in defense costs owed to its own attorney, the attorneys for the general contractor, the Special Master, and others who feed at the trough of the mass defect actions.

In a difficult economy employee terminations are inevitable. Unfortunately, even when employers must terminate employees out of economic necessity, these employers are not immune from lawsuits brought by these terminated employees. All an employee requires to file a lawsuit is a willing attorney. Fortunately, there are a few steps employers can take prior to downsizing to discourage post-termination lawsuits. We suggest the following…

If you are an employer in the State of California and use a written contract of employment to define the terms of employment with your employees, there is a good chance that, as a result of a decision of the California State Supreme Court, the contract you are currently using with your employees will not be enforced by the Courts of this state. It may therefore be necessary for you to consider revising your employment contract.

The amount of workers’ compensation that may be awarded to an injured worker may be increased if the injury was brought about by the serious and willful misconduct of the employer or the employer’s managing representative. Serious and willful misconduct is best defined as any intentional act, or failure to act, coupled with the knowledge that serious injury will be the probable result from that act or failure to act.

It is the declared policy of California that there should not be discrimination against workers who are injured in the course and scope of their employment. Therefore, any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because the employee has filed or made known his or her intention to file a workers’ compensation claim, is guilty of a misdemeanor, and the employee may seek extra forms of compensation from the employer.

Many contractors, subcontractors and suppliers are suffering at the hands of those who fail to pay for the work or materials they supply to construction projects. This is a brief outline of ten tips to keep in mind when dealing with delinquent construction accounts.

Many businesses are surprised to learn that there is a Bankruptcy Code provision, commonly referred to as the “Preferential Payment Rule,” which generally provides that where a debtor makes a payment to a creditor and the debtor files bankruptcy within 90 days thereafter, the creditor can often be forced by the Bankruptcy Court to pay all the sums paid by the debtor back into the bankruptcy estate for distribution to general creditors. When the creditor is an “insider” with the debtor the time period increases from 90 days to one year. This Rule is found in U.S. Bankruptcy Code section 547. The impact of this rule is often devastating to those who have received payment and disbursed it to their own creditors and no longer have the funds to pay to the bankruptcy court.

nder laws which took effect on January 1, 2011, claimants who seek to obtain payment for construction related debts through the California mechanic’s lien procedure must follow new rules and use new forms. Failure to do so will likely result in an unenforceable mechanics lien. There are a number of reasons that the law was changed. For example, until this change, there was no requirement that a mechanic’s lien claimant actually inform the property owner that the claimant has recorded a mechanic’s lien on the owner’s property. There was also no requirement that a mechanic’s lien claimant inform an owner of exactly what a mechanic’s lien is or that the owner may be sued within 90 days to foreclose on the mechanic’s lien and sell the owner’s property to pay the unpaid debt. Property owners had long complained that, until they received the mechanic’s lien foreclosure lawsuit, they were often entirely unaware that a mechanics lien had even been recorded on their property. The owner asserted that if he/she had known that a mechanic’s lien had been recorded, he/she could have acted to resolve the matter before a lawsuit became necessary. This was a particularly common complaint in the residential construction industry where homeowners are generally unaware of the entire concept of a mechanic’s lien.