Louisiana State Capitol, Baton Rouge (Photo credit: Wikipedia)

If there is any one constant in the legal profession, it is that the law is an ever-evolving, dynamic thing. While there are some general principles that tend to not change all that drastically over the years, the devil truly is in the details. Having to keep abreast of these changes is why you’ll hear people refer to the “practice” of law – we attorneys must continue to learn and adapt as we continue through our careers. Here at Wolfe Law Group, we make sure to have our ears to the ground in order to provide the most up-to-date information for our clients and their businesses. This legislative session, there are several proposed changes in Louisiana construction law, all of which may critically impact how contractors do business in this state. This post is the first of two parts discussing those changes.

 Proposed Changes to the Private Works Act

There are currently three bills in various stages of the legislative process that would significantly change how different parties secure their rights to payment. The first, Senate Bill 183, is the furthest along of the three, having successfully passed through the Senate and out of the House Committee on Civil Law and Procedure. It is the only bill this session, and the first bill since 1999, that seeks to amend La. R.S. 9:4802. This statute outlines which parties are entitled to assert claims for payment against an owner and a contractor. Should this bill become law (which is likely given the total lack of opposition in the Senate or in the House Committee), lessors of movables would be required to provide formal notice to contractors and owners within 10 days of their materials being used on a project, as opposed to simple delivery of a lease. This change might sound insignificant, but it is because of that very reason why it is important for us to keep our clients informed. Without paying proper attention to how the law evolves, current or potential clients might lose their ability to secure payment because they were unaware of this formalizing shift in the law.

The other two bills, House Bill 190 and House Bill 362, propose changes to La. R.S. 9:4822. This statute is arguably the most important in the Private Works Act because it outlines and defines the time and notice requirements that must be met in order for parties to secure their right to make a claim to secure payment. House Bill 190 has passed through the House and awaits a vote in the Senate Committee on the Judiciary. This bill proposes the least significant of changes, merely stating clearly that statements of claim and privilege need not have attached copies of unpaid invoices unless the statement specifically states they are attached. House Bill 362, however, would extend the time requirements for parties to file their claims by double. When notices of contract have been properly filed and you are one of the parties entitled to a privilege by La. R.S. 9:4802, you would have sixty (60) days to file your claim after the notice of termination, as opposed to the current thirty (30) day window. If you are a contractor that properly filed your notice of contract (if necessary), you would have one hundred twenty (120) days to file your claim following termination or substantial completion, instead of the current sixty (60) day window. These deadlines are extended throughout the statute: all 30 day limits are changed to 60 days, and all 60 days are changed to 120 days. The success of this bill has yet to be seen: unlike the others, it hasn’t even made it out of committee yet, and the session is fast coming to a close.

An Easing of Home Improvement Contracting Registration

Securing and maintaining the proper licensing and registration is incredibly important in the construction world here in Louisiana. The knowledge and expertise required in performing such work or providing these services is why it is always recommended that people seek out professional assistance, especially for work around the home. Surprisingly, and not necessarily wisely, Senate Bill 81 proposes to modify the status quo in relaxing registration requirement for home improvement contracting. Currently, no person shall undertake or perform or agree to perform home improvement contracting services unless they are registered with the Residential Building Contractors Subcommittee of the State Licensing Board for Contractors as a home improvement contractor. The proposed law (which unanimously passed the Senate and is scheduled for floor debate in the House on May 16th), adds the following exception to La. R.S. 37:2175.2:

No individual shall undertake on his own property self-performed home improvement contracting services having a value in excess of seven thousand five hundred dollars unless registered with and approved by the Residential Building Contractors Subcommittee of the State Licensing Board for Contractors as a home improvement contractor.

Basically, the legislature is trying to make it easier for a homeowner to perform certain work on his or her property without having to go through the necessary registration channels. While this might not be an issue for some, it is worrying that something as particularized as home construction may be continuing down a path of non-regulation. The true extent of this relaxation, of course, will remain to be seen.

Related articles

• Mechanics Liens: Recent Lien Law Amendments in Virginia
• Missed Your Lien Deadline – What Now?
• Tips for Hiring a Home Remodeling Contractor

The post In The Pipeline – Changes in Louisiana Construction Law appeared first on Construction Law Monitor.

This article was contributed by Carrie Van Brunt-Wiley, Editor of the HomeownersInsurance.com blog. Carrie has been writing insurance news and consumer information for HomeInsurance.com since 2008. She graduated from the University of North Carolina in Wilmington in 2005 with a B.A. in Professional Writing and Journalism.

Green building practices do more than protect the environment, and smart homeowners have more than energy savings to gain when they strive to comply with LEED requirements. Homes built with sustainable, energy-efficient materials are proving to be less vulnerable to wind, hail and water, making them better investments for homebuyers and more attractive to insurers seeking to lessen risk. This could mean lower insurance premiums for homeowners who take steps to increase their homes’ sustainability.  

Shelter from the storm

Extreme weather is nothing new to Louisiana, but the devastation wrought by Hurricane Katrina was particularly severe.  The need to rethink building practices became all too clear overnight. If there is a silver lining to be found in the Katrina disaster, it’s that those communities devastated by the hurricane have had – and still have – the opportunity to rebuild in such a way that should make them better able to withstand the next storm that blows through.

The Insurance Information Institute (III) reports an average cost of more than $6,000 to mitigate an insurance claim caused by severe weather. According to the III, Hurricane Katrina cost $16.2 billion in insurance claims, averaging $96,821 each. Consider how much lower this might have been if more homes and businesses had been built using impact-resistant roofing materials such as aluminum or steel that can withstand not only fire but wind, hail and flying debris. Some insurance companies already offer premium discounts to Louisiana homeowners who install these roofing upgrades.

It pays to upgrade your home

Water damage claims typically cost insurance companies around $7,000, according to the III, and make up almost 25% of homeowners claims in the U.S.  In an effort to bring this average down, some insurance companies may offer lower premiums for homes that earn Indoor Water Efficiency points by complying with the LEED v2009 requirement of 20% water savings.

Following are some other upgrades that could lower your homeowners insurance costs:

• New plumbing systems
• Updated HVAC systems
• Modernized electrical systems

Updating these systems in your home can help you avoid expensive water damage, mold and fire claims. Insurance companies recognize that you are lowering your chance of filing claims and are likely to reward your efforts.

The benefits of green building are so great that some homeowners insurance companies now offer green replacement coverage for standard homes.  If a non-LEED certified home is damaged or devastated by covered peril, green replacement covers the cost to rebuild using sustainable, energy-efficient materials.

Savvy homeowners know that saving energy and materials are the underlying reasons to go green. But they also understand that the value of sustainable building goes beyond those savings. One way you could realize that value is by lowering your home insurance risk, which could mean lower home insurance premiums.

The post Cut Your Risks: Build – or Rebuild – Sustainably appeared first on Construction Law Monitor.

False: missing a deadline precludes you from ever recovering the money you are owed.

In the construction world, there is no doubt that the deadlines for securing your lien rights are rigid and unforgiving. If you have not filed your lien by the applicable date, you have relinquished that right permanently. This should not be interpreted, though, as having lost your ability to ever collect the money that is owed to you or your company. There is still a way!

Liens Are One (Important) Part of a Bigger Picture

There is no overstating the significance of the mechanic’s lien. It is the most efficient way of making sure that you are paid for the work performed or materials supplied on a project. It allows you to hold all parties accountable and is a very effective way of securing due payment. Understandably, there are strict guidelines that control how this right can be maintained and enforced. Sometimes, these guidelines are not met and the lien option is no longer viable. All is not lost, however.

If the enforcement of a lien were the only way a contractor or subcontractor could recover from another party, there would be a great many unhappy contractors or subcontractors! Thankfully, petitioning a court to enforce one’s lien is usually just one of many bases for recovery.

The most important piece(s) of paper that you will have in your possession during and after a project is your contract. We’ve discussed in multiple posts the importance of your contract and provisions that should be included in them. Your contract is your law, and it is law that you get to write. When an owner fails to pay for the work performed by the contractor (or contractor to the subcontractor), they have broken the law, and courts do not look favorably upon those who break the law. If your contract is clearly expressed and signed by both parties, then any breach of that contract will allow the other party to recover, regardless of any lien in place.

Maybe the court determines that there is no “contract” in place, though. What then? Again, all is not lost. Still looking at the bigger picture, there is the chance the court will find that an open account exists. What is that? According to La. R.S. 9:2781, an open account “includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions.” So, if you’ve performed the work and haven’t been paid, even if you don’t have a lien, you can still recover on this principle.

The “Back Door Lien”

Once in a blue moon you’ll come across a situation where you have missed your deadline to file a lien, but circumstances are such that a potentially even more powerful remedy is available to you: attaching property. Don’t get me wrong – the planets need to align fairly nicely for this to happen, but it is something that came up recently and is worth mentioning.

A client recently came to me seeking to have a lien placed on property. However, the work had been completed several months prior, so the lien deadline had passed. As usual, I began looking into the above claims, and others. This client, though, was particularly concerned because the debtor was preparing to dispose of the property in one manner or another. A lien on the property would have prevented that from happening, but this was not an option. Instead, Louisiana Code of Civil Procedure article 3541 could be utilized and, along with the filing of the above and similar claims (breach of contact, open account), you could also request a writ of attachment. In the simplest terms, when this writ is granted, the property (or the person depending on the situation) is seized, thus preventing the debtor from disposing of it to avoid payment of the debt. It’s a costly method of recovering money owed, but one that rather severely drives home the point that in this state, neglecting your obligations is seriously frowned upon and comes with consequences just as serious.

Related articles

• Mechanics Lien: How Great Companies Get Paid In The Construction Industry
• Lien Deadline Calculator: Why Dates Are Important

The post Missed Your Lien Deadline – What Now? appeared first on Construction Law Monitor.

Workers Compensation is codified in Louisiana under Revised Statute 23:1021 et seq. There are a myriad of rules and definitions within this chapter of the code that would make any contractors head spin. There are a few key items to remember when classifying employees. First and foremost is that there is a presumption of employee status, as seen in La. R.S. 23:1044. This can be overcome by a number of factors which would make the worker, an independent contrator rather than a employee. La R.S. 23:1045 is where the law states that independent contractors and subcontractors are exempt from coverage. Although the price to insure all employees under workers comp insurance is high, the price that is paid if an accident happens to an uninsured worker is much higher. Furthermore, when the insuring companies do an audit at the end of the year of the status, there can be a hefty price tag for improper reporting.

I represent a number of clients who are learning the hard way that companies like LWCC and Louisiana Home Builders Association are not fun to litigate against for a contractor trying to make profits. These companies have either in-house attorneys or law firms who handle these cases day in and day out. There is almost no incentive for them to settle claims because there is no fear of pricey litigation. As for the contractor, attorney fee bills keep going higher and at the end of the day the contractor can pay double and triple of what they would have if they had properly reported or settled early.

So let this be a warning to all contractors who are trying to push the line when it comes to workers compensation insurance, its just not worth it. Just like fighting any insurance company, even if the insurer is wrong, they will fight to the bitter end to be proven so. Taking an early haircut, so that you can get back to making money in the industry, can be a win-win for your construction company.

The post Louisiana Contractors – Workers Compensation Insurance appeared first on Construction Law Monitor.

From all of us here at Wolfe Law Group, LLC and ConstructionLawMonitor.com, we would like to wish happy holidays to all. This is the time of year where we look back and reflect on the past twelve months and give thanks to all the good (and bad) that has transpired. Its a time to learn from the successes and the failures of the year and grow wiser and stronger.

In looking ahead, there are good things to come in 2013. Growth and expansion are on the horizon. The promise of new opportunity coupled with the solidification of past relationships makes for a great transition into the new year.

The post Happy Holidays! appeared first on Construction Law Monitor.

Every day, more than twelve workers die on the job, which adds up to a total of 4,500 worker fatalities each year. Another 4.1 million workers suffer serious injury or illness related to their jobs, according to a white paper published by Occupational Safety and Health Administration of the United States Department of Labor (OSHA).While it’s not possible to prevent every accident, the need to promote safety in the workplace is obvious. Programs designed to prevent workplace injury and illness are well established in countries like Canada, Australia, Norway, Japan, Korea and all the 27 member states of he European Union.  In addition 15 states in the United States, including California, require such programs.

Yet many business owners resist mandatory workplace inspections and tighter safety regulations imposed by OSHA. Conventional wisdom claims that safety testing and workplace regulations, such as those imposed represent a job-killing financial drain on businesses. However, the results of a study conducted in May 2012 by researchers at the Harvard Business School, the Haas School of Business at the University of California at Berkeley and Boston University soundly refute those assertions. In fact, the study shows that OSHA testing can actually result in significant savings for companies along with reducing company liability.

Reduced Employer Liability

According to the study, workplaces in high hazard industries that had been subject to random OSHA inspections reported a reduction of 9.4 percent in injury claims. This reduction in claims translated to savings of 26 percent in workers’ compensation costs in the four years following the inspections.  These figures were compiled in comparison with a similar number of uninspected companies in the same high hazard industries.

Significant Savings

The average savings to companies that had undergone OSHA inspections was $355,000 US, according to the study. Further, savings were realized in workers’ compensation claims as small as $2,000 US as well as much larger.  The study also found absolutely no evidence that workplace inspections had a negative impact on company profits.

In their original report, the researchers estimated that if the conditions of the study were duplicated across the entire country, the potential savings could total as much as $6 billion US to employers and employees, when compensation for pain and suffering are excluded. However, as a result of more recent research, the study’s researchers revised their estimate of savings upward in June 2012, from $6 billion US to $20 billion US.

Objective Measurements

The study was able to overcome design and bias flaws present in earlier studies by taking advantage of a 1993 California mandate that requires the California division of OSHA to conduct random workplace inspections. The study looked ad companies that were randomly inspected between 1996 and 2006, along with a similar number of companies that were not inspected. The number of injuries recorded from both groups of companies was drawn from worker compensation claims and other independent sources. By contrast, previous studies of this type had not used random data. Instead, all of the workplaces studied had been the site of a workplace accident or complaint. The information was drawn from OSHA logs, which often become more detailed as time passes.

For Further Reading

• Harvard Business School: New Study Shows That Workplace Inspections Save Lives, Don’t Destroy Jobs
  hbs.edu/news/releases/toffelscience051712.html
• Occupational Safety and Health Administration: Injury and Illness Prevention Programs – White Paper
  osha.gov/dsg/topics/safetyhealth/OSHAwhite-paper-january2012sm.pdf

The post OSHA Testing Can Reduce Employer Liability, Saves Companies Money appeared first on Construction Law Monitor.

Seth J. Smiley, partner at Wolfe Law Group, LLC and author of ConstructionLawMonitor.com is now a formally trained mediator. New Orleans just hosted the AAAU’s (American Arbitration Association University), Essential Skills for the New Mediator workshop in downtown, hosted by Neil Carmichael.

Why would parties want to mediate a dispute instead of going to court? That answer is easy, yet has many factors. The most important are that mediation is less expensive and much more efficient compared to litigation. But the most important factor is that the parties control their own outcome, rather than a group of strangers (jury).

So if you are in a dispute and are looking for an economical, logical and swift conclusion that is mutually agreeable between you and your adversary, then mediation may be just what you are looking for. Contact the Wolfe Law Group, LLC for more details.

The post Mediation! New Service Available at Wolfe Law appeared first on Construction Law Monitor.

California is a jurisdiction of forms. The State Bar has gone to great lengths to make a form for just about any situation. In that same light there are many that overlap and you nearly need a law degree just to navigate through the long list. The California Courts also have very helpful information regarding the legal process and all of the different procedural devices used by lawyers.

A typical checklist for items needed when you file your civil case are 1) Complaint, 2) Civil Cover Sheet, 3) Summons, and 4) Receipt and Acknowledgement. The complaint is your main document to be filed. This is where the Plaintiff lists out all of the facts and causes of action that related to the allegations being asserted in the suit. The complaint is the lawsuit itself and will be a part of the public record. The Civil Cover Sheet is a mandatory form that needs to accompany any new filing. This tells the clerk what type of case is being filed. Next is the Summons. This document tells the court and the opposition who is being sued and what that person/entity’s legal rights are with regard to an answer. Lastly is a handy little form that I like to include called Notice and Acknowledgment of Receipt. This form allows for you to mail serve the Summons and Complaint on your adversary saving time and money. If the defendant does not reply within 20 days, it will be obligated to pay for your service fees. The normal delay to respond to a suit is 30 days.

Once you get your complaint filed you will want to serve your adversary with the documents to complete the process. You can use the Notice form listed above but if that fails then you will have to hire a process server to get the suit to the defendant. Regardless of how you serve them the clerk of court requires proof of service. This too is another form, Proof of Service of Summons. This helpful form has a long check list of methods of possible service. You make sure you followed one of the statutory required methods, file your proof and then your law suit has formally begun. You then must wait for your adversary to answer.

This blog post is a part of the California Civil Procedure Series written by Wolfe Law Group. You should contact an attorney when dealing with procedure issues as there are strict time limitations which need to be followed.

The post California Civil Procedure Series – How to File Suit appeared first on Construction Law Monitor.

Technology is everywhere. We use it constantly throughout every hour of each day. While it has made our lives easier and more convenient, is it better than a time when we didn’t rely on it so much? Most would agree that yes, it is better, and in many instances that may be true, but in some cases it seems that going back to the basics can be more effective.

A recent article from the American Express Open Forum expresses such an instance. According to the article, “Pen and Paper: Killer Productivity Apps,” studies show that hand-writing notes on paper helps with memory skills and can heighten brain activity. Physically writing things down actually helps us to remember things.

So how can this relate to the construction industry?

To be honest, these tips can be helpful in any industry. If you want to remember something, don’t simply store it in your smartphone or tablet. With the amount of apps and distractions that these devices can hold, your priorities can get cluttered. For contractors and construction workers, project checklists and dates involving project deadlines and lien deadlines are extremely important details that need to be remembered. Write these important notes and dates down, and save them somewhere in which you can be constantly reminded. Simply saving them in technological devices will not always suffice and can easily get overlooked. If deadlines aren’t met or checklists aren’t completed, numerous problems can arise. Stay organized, and write things down to help remember!

For those who must use technology like myself, there are programs like Evernote which allow for storage of all notes and even allow for writing on tablet devices. Evernote is great and I highly recommend and its Evernote Trunk list out all compatible apps where you can find writing applications.

The post Tips to Stay Organized: Going Back to the Basics appeared first on Construction Law Monitor.

Topics That I plan to cover include, 1) basic discovery rules, deadlines and concepts; 2) a CA C.C.P. 998 offer of settlement and its impact on litigation, 3) filing and obtaining a default judgment, including CA C.C.P. 1033 declarations and letters of intent, 4) basic filing procedures for a Complaint and subsequent  pleadings including proof of mailing forms.

The purpose of this series is to better educate anyone who gets involved in the legal process. There are a number of resources out there but sometimes simple tasks can be daunting in the legal industry. Other times certain jurisdictions emphasize things that are simply overlooked in others. Lastly, California has a vast network of forms that in theory set out to be helpful yet in the end can send one in a fit of confusion. I will attempt to show some helpful way to navigate that stream of information.

The post California Civil Procedure Series – Litigation Tips appeared first on Construction Law Monitor.