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#87:  Coronavirus and Construction Delays

3/19/2020

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COVID-19 is interfering with the performance of contracts throughout the economy – and in the construction industry particularly.  All Boston construction projects were temporarily suspended effective March 17.  New Hampshire is not there yet, but projects in the Granite State are feeling the pinch.  Workers are staying home, manufacturers of components and products are slowing production, supply chains are being disrupted (particularly for foreign sources).  Even social distancing guidelines play a role in reducing efficiency (are you going to allow two or three people in your job trailer at the same time?).  All of this has created a coordination nightmare for project managers – and perhaps some angst over the OSHA requirement that places of employment must be “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1).  (Frequent hand washing on a job site?  Good luck with that!)

As project schedules inevitably suffer, the question will arise whether these are excusable delays justifying time extensions and the avoidance of delay damages, liquidated or otherwise.  This is where the legal doctrine of force majeure kicks in.  Force majeure (pardon my French) literally means “superior force” – what we might refer to colloquially as an “act of God” when natural disasters are in play, but also including an act of Government.  Mere economic hardship from unanticipated circumstances is not enough; there must be some exogenous obstacle to performance imposed by events beyond a contractor’s control, trouncing on his ability to perform the contract.

Unfortunately for contractors, force majeure has almost always been invoked as a reason to terminate a contract entirely as opposed to delay performance.  Federal contractors, though, have the benefit of the Federal Acquisition Regulations.  48 C.F.R. § 52.249-14 provides that “the Contractor shall not be in default because of any failure to perform this contract under its terms if the failure arises from causes beyond the control and without the fault or negligence of the Contractor.  Examples of these causes are . . .  (5) epidemics, (6) quarantine restrictions . . . Default includes failure to make progress in the work so as to endanger performance.”

Most private commercial construction contracts have clauses excusing delays occasioned by a variety of supervening events.  Section 8.3.1 of the AIA’s popular A201 – General Conditions of the Contract for Construction (2017), for example, authorizes extensions of time for “labor disputes, fire, unusual delay in deliveries, unavoidable casualties, adverse weather conditions ... or other causes beyond the Contractor’s control.”  Not all such clauses are so broad.  When the parties choose particular language to cover force majeure situations, courts usually enforce it literally.  See Richard A. Lord, 30 Williston on Contracts § 77:31 (4th ed.) (“What types of events constitute force majeure depend on the specific language included in the clause itself.”); United States v. Panhandle Eastern Corp., 693 F.Supp. 88, 96 (D.Del. 1988), aff’d, 868 F.2d 1363 (3rd Cir. 1989) (“Ordinarily, only when a force majeure clause specifically includes the event alleged to have prevented performance, will a party be excused from performance.”).  Few force majeure clauses specifically mention epidemic or outbreak of disease (watch how quickly that changes now!), and if parties are held to their enumeration of force majeure events and did not keep their language broad, this could spell trouble.

Even in contracts lacking any such clause, a variant of force majeure is sometimes applied by the courts under the rubric “impossibility of performance.”  But in New Hampshire, “to justify the termination of a contract on account of impossibility of performance, the impossibility must be complete and permanent.”  Perry v. Champlain Oil Co., Inc., 99 N.H. 451, 453 (1955).  Our Supreme Court has yet to weigh in on the doctrine’s interplay with extensions of time.

We will see how all of this plays out, but my advice to contractors faced with pandemic-related shortages of manpower or materials is to document schedule impacts carefully and seek a change order for schedule relief early on – regardless of what their contract language says, or even if it says nothing at all on point.  Prompt communication with owners is key.
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#86:  Mechanic's Lien Deadlines and Additional Work

2/29/2020

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The requirement in RSA 447:9 that a mechanic’s lien must be secured within 120 days of the lienor’s last furnishing of labor or materials has occasionally spawned disputes over what counts as that last day.  A would-be lienor who returned to the jobsite to do something which he hopes has reset the clock may find that he has waited too long.
 
The general nature of activities that will not extend the 120-day life of the lien has been the subject of few New Hampshire Supreme Court cases.  Tolles-Bickford Lumber Co. v. Tilton School, 98 N.H. 55, 58 (1953), held that “where a contract to furnish materials is to be regarded as completed, a subsequent gratuitous furnishing of material in the nature of a substitution or replacement to remedy a defect in the material originally delivered will not operate to extend the time within which to claim a mechanic’s lien.”  Bader Co. v. Concord Electric Co., 109 N.H. 487, 489 (1969), affirmed a ruling “that the work done in March by Bader on Concord Electric’s premises ‘was inconsequential and not done pursuant to the contract but done at the request of the owner to correct defects.’ Work of that nature could be found not to be such as to extend the duration of plaintiff’s lien.”
 
Such characterizations – “gratuitous,” “inconsequential,” “a substitution or replacement,” “to correct defects” – are helpful, but not always easy to identify.  “Warranty” work won’t count, but “punch list” work might.  Identifying when the lienor’s contract can fairly be said to have been “completed” may be useful.  But see Fraser Engineering Company, Inc. v. IPS-Integrated Project Services, LLC, 2018 WL 1525725 (D.N.H. March 27, 2018) (“this court is disinclined to hold as a matter of law that work done pursuant to a contract necessarily extends a mechanics lien”).
 
Some would-be lienors hurt their cause by sending a final invoice for the full balance due for all contract work more than 120 days prior to securing their lien.  See Tolles-Bickford, supra at 57 (“When the plaintiff submitted its final bill on January 31, 1951, there was included in the total debits and credits and enclosed therewith an invoice entitled ‘Materials delivered to complete contract.’”).  Sending a final invoice strongly suggests that full performance was achieved as of its date, justifying the inference that any return to the site thereafter was for performing touch-up work.  See Fabcon Precast, LLC v. Zirkelbach Constr. Inc., No. 218-2015-cv-1011 (Rockingham Super. Ct. Nov. 25, 2015) (Delker, J.) (“Because it represented that the work was 100% complete, the Court finds that the work performed on May 20, 2015—both the repair of the panels and the caulking—was remedial. The 120 days began to run on January 15, 2015. Accordingly, the failure to perfect the lien within that time is ‘fatal’ and the lien must be lifted.”)
 
If all of the work that the lienor is suing for was performed outside the 120-day window, courts might not even consider whether subsequent work extended the deadline.  Peabody v. Wentzell, 123 N.H. 416, 419 (1983) (“We need not determine whether the work performed by the plaintiff after September, 1979, was inconsequential, gratuitous or done merely to remedy defects, because there was sufficient evidence to support the master’s finding that the work at issue was not included in the parties’ contract.  Consequently, it was immaterial whether the work was inconsequential, gratuitous, or done merely to remedy defects.”)  In other words, a lienor may not reset the 120-day clock by performing work for which it is not seeking compensation. 
 
The reference in Tolles-Bickford to sending a final bill has engendered some additional confusion.  In re McLaughlin, 2011 BNH 5, 2011 Bankr. Lexis 1656 (Bkrtcy. D.N.H. May 4, 2011), stated “The time starts to run not from the date the mechanic’s lien accrues but from when the final bill is sent or the last work is completed under the contract.”  If the phrase “whichever is later” had been added, the ruling would clearly be in tension with the statutory language; but if “whichever is earlier” were implied, the ruling would dovetail with the analysis discussed above.
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#85:  Who Decides Arbitrability?

1/12/2020

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Although arbitration clauses are common in many types of contracts and particularly in construction contracts, the contracting parties sometimes differ on their enforceability or their application to particular disputes.  “[W]hether the parties are bound by a given arbitration clause raises a question of arbitrability,”  Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002).  But is arbitrability itself a question for the court or for the arbitrator to decide?

The general rule is that questions of arbitrability are decided by the courts “unless the parties clearly and unmistakably provide otherwise.”  Appeal of Town of Durham, 149 N.H. 486, 488 (2003), quoting AT&T Technologies v. Communications Workers, 475 U.S. 643, 649 (1986).  What constitutes “clear and unmistakable” evidence that the power to determine arbitrability has been delegated to the arbitrator is often itself a contentious issue.  For example, an arbitration clause that incorporates the American Arbitration Association’s rules, which empower the arbitrator to decide issues of arbitrability, is usually deemed to be “clear and unmistakable evidence of the parties’ intent to delegate such issues to an arbitrator.”  Contec Corp. v. Remote Sol. Co., Ltd., 398 F.3d 205, 208 (2d Cir. 2005).  But in New Hampshire at least, if the parties’ contract allows one or both of them to elect either litigation or AAA arbitration for resolving contractual disputes, and one of the parties then insists on arbitration in accordance with AAA rules, that clarity and unmistakability are lost and the court will decide the arbitrability issue.  Hoyle, Tanner & Associates, Inc. v. 150 Realty, LLC, 215 A.3d 491 (2019).

A clear and unmistakable delegation clause is enforceable even where a party sues on a claim that is obviously not within the scope of what was agreed to be arbitrable; the opposing party can still invoke the delegation clause to insist that the arbitrator, not the court, decide its arbitrability.  Henry Schein, Inc. v. Archer and White Sales, Inc., 139 S.Ct. 524, 529 (2019), which likewise involved a contract incorporating the AAA rules, makes the point: “When the parties’ contract delegates the arbitrability question to an arbitrator, a court may not override the contract.  In those circumstances, a court possesses no power to decide the arbitrability issue. That is true even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless.”  The Court brushed aside the argument that its ruling would invite “frivolous motions to compel arbitration,” noting that arbitrators “can efficiently dispose of frivolous cases by quickly ruling that a claim is not in fact arbitrable,” id. at 531.

Henry Schein has left courts with little wiggle room to deny a motion to dismiss founded on a valid delegation clause, but our own federal court has been among the first to start wiggling.  In Bossé v. New York Life Insurance Company, 2019 DNH 190, No. 19-cv-016-SM (Nov. 13, 2019), the defendant moved to dismiss a discrimination claim, relying on a delegation clause in a 2004 employment contract that had been terminated and did not form the basis of the plaintiff’s claim, but which recited that it would survive termination and govern “any dispute, claim or controversy arising between” the parties.  Judge McAuliffe denied the motion, ruling that he should decide arbitrability, and deciding that the claim was not arbitrable.  Acknowledging that “there are no words used that explicitly limit the clause’s application to only those disputes bearing some relationship to or having some connection to the contract in which it is found,” he nevertheless held that at least a minimal relationship was required, finding that “[n]o reasonable person in either Bossé’s position or New York Life’s position would have understood the 2004 Partner’s Agreement arbitration provision (and survival provision) to require arbitration of any and all future claims of whatever nature or type, no matter how unrelated to the Partner’s Agreement, and no matter how distant in the future the claim arose.”

The case is now on appeal – itself a testament to how important this preliminary issue of who gets to decide the proper forum for adjudication often is to the contestants.
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#84:  Owners' Third Party Beneficiary Rights Against Subcontractors

12/22/2019

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In contract law there is a well-recognized exception to the rule requiring “privity of contract” as a prerequisite to recovery for breach.  If you are a “third party beneficiary” of someone else’s contract, you can recover for its breach even though you are not a party to it – as long as the contracting parties so intended.

“A third-party beneficiary relationship exists if: (1) the contract calls for a performance by the promisor, which will satisfy some obligation owed by the promisee to the third party; or (2) the contract is so expressed as to give the promisor reason to know that a benefit to a third party is contemplated by the promisee as one of the motivating causes of his making the contract.”  Brooks v. Trustees of Dartmouth College, 161 N.H. 685, 697 (2011).  If we look no further than this language, the first of these two methods of establishing third party beneficiary status appears to be a perfect fit in the usual owner-contractor-subcontractor relationship: through his subcontract, the subcontractor (promisor) is rendering a performance that the general contractor (promisee) owes to the owner.  So does the second: subcontracts almost always tell the subcontractor (promisor) that a benefit to the owner is what the general contractor (promisee) has in mind in paying the subcontractor to perform.
 
But there is a gloss on this description of the test; the contract must also indicate “that the parties considered the third party’s legal status and intended to confer upon him a right to sue the promisor.”  Id.  An intent to benefit a third party and an intent to give that third party the right to sue for breach are very different things.  Because both are needed to give someone a right to sue for breach of another’s contract, property owners will generally not be considered third-party beneficiaries of contracts between their general contractor and its subcontractors.  They will merely be incidental beneficiaries, with no contract right of recovery against the subcontractors.
 
The main benefit to an owner in having a valid breach-of-contract claim against a subcontractor is avoidance of the "economic loss rule" precluding recovery for the subcontractor's negligent performance (see Blog # 29).  Without the right to an assignment of the subcontract in the event of default by the general contractor (see Blog # 39), there may be no mechanism for an owner to recover damages directly from the guilty party -- or at all, if the general goes under.

Ordinarily, intent can be either express or implied from surrounding circumstances.   In discerning an intent to allow an owner to sue for breach of a subcontract, however, courts around the country typically insist that it be express.  “The commentators and courts that have considered the question have concluded that unless the contract specifically so provides, the owner is an incidental beneficiary of the contract between the subcontractor and the contractor.”  Lazovitz, Inc. v. Saxon Construction, Inc., 911 F.2d 588, 591 (11th Cir. 1990).  No reported New Hampshire case has yet so declared, but it is a safe bet that a subcontract’s silence on the point will weigh heavily against finding third party beneficiary rights.

One way to dispel all doubt is to insert language in the subcontract disclaiming any intent to allow the owner a right to sue for its breach.  See Hrushka v. State Dept. of Public Works, 117 N.H. 1022, 1024 (1977) (“[I]f two contracting parties expressly provide that some third party who will be benefited by performance shall have no legally enforceable right, the courts should effectuate the expressed intent by denying the third party any direct remedy.”).  Interestingly, the popular AIA A401 (2017) subcontract form provides in section 1.5 that "The Subcontract documents shall not be construed to create a contractual relationship of any kind . . . (2) between the Owner and the Subcontractor, or (3) between any persons or entities other than the Contractor and Subcontractor." But it also provides in section 4.6.1 that the subcontractor's warranty extends "to the Owner, Architect and Contractor" -- which presumably gives the owner the right to sue the subcontractor for breach of warranty.  How this apparent inconsistency shakes loose remains to be seen.

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#83:  The Impact of Bankruptcy on Perfecting a Mechanic's Lien

11/23/2019

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As discussed in an earlier blog (#60), in order to “perfect” a mechanic’s lien in New Hampshire the lienor must institute court action for the purpose of getting an attachment order, Topjian Plumbing Heating, Inc. v. Bruce Topjian, Inc., 129 N.H. 481 (1987).  Suppose the owner files for bankruptcy protection before that step is taken.  Can the lienor still take it?
 
Upon the filing of a bankruptcy petition, the “automatic stay” found in Section 362 of the Bankruptcy Code prevents creditors from taking various acts including, per Section 362(a)(4), “any act to create, perfect, or enforce any lien against property of the estate” – but contains an exception in Section 362(b)(3) for any act to perfect an interest in property “to the extent that the trustee’s rights and powers are subject to such perfection under Section 546(b) of this title.”  Section 546(b), in turn, subjects the trustee’s powers to “any generally applicable law that permits perfection of an interest in property to be effective against an entity that acquires rights in such property before the date of such perfection.”  Our question is whether New Hampshire’s mechanic’s lien statute is such a law.
 
It is tempting to conclude that such retroactive effect is accomplished by RSA 447:9, which states that mechanic’s liens “shall take precedence of all prior claims except liens on account of taxes.”  After all, this type of super-priority is akin to the Massachusetts environmental superlien statute at issue in In re 229 Main Street Limited Partnership, 262 F.3d 1 (1st Cir. 2001), which provided that “Any lien recorded, registered or filed pursuant to this section shall have priority over any encumbrance theretofore recorded, registered or filed with respect to any site . . . described in such statement of claim.”  The Court of Appeals held that “[s]uch perfection plainly is effective against entities which already had acquired rights in the property,” id. at 12, and accordingly ruled that postpetition perfection of such a lien “meets the combined requirements of section 362(b)(3) and 546(b)(1)(A) and therefore falls within the exception to the automatic stay carved out by those provisions,” id. at 13.
 
But one set of prior claims that RSA 447:9 does not give precedence over are claims of “bona fide purchasers of the property for value before the writ of attachment was recorded,” Chagnon Lumber Co. v. Stone Mill Const. Corp., 124 N.H. 820, 824 (1984).  A mechanic’s lien that the buyer knew nothing about, perfected by an attachment after her purchase, will not trump her interest – nor, presumably, that of the bankruptcy trustee under Section 546(b) of the Bankruptcy Code, to whom Section 545(2) grants the power to “avoid the fixing of a statutory lien on property of the debtor to the extent that such lien . . . is not perfected or enforceable at the time of the commencement of the case against a bona fide purchaser that purchases such property at the time of the commencement of the case, whether or not such a purchaser exists. . . .”
 
Until a bankruptcy case in New Hampshire directly addresses the post-petition perfection of a mechanic’s lien, we won’t know for sure whether the lien can still be perfected.  There is certainly reason for caution here.  But even if the exception in Section 362(b)(3) protects the lienor’s attachment effort from the ban of the automatic stay, that won’t condone the filing of a collection lawsuit against the debtor as the springboard for filing the motion to attach.   Fortunately, lienors are “not statutorily required to institute a suit for damages for breach of contract on the same writ that was used to perfect the materialman's lien . . . The attachment securing the lien serves a narrower purpose than the action for damages . . .”  Pine Gravel, Inc. v Cianchette, 128 N.H. 460, 465 (1986).  See Norcross v. Fahey, No. 2016-0304 (N.H. Sup. Ct., January 13, 2017) (“although RSA chapter 511-A allows a party to seek a pre-judgment attachment when filing an action on an underlying debt, nothing in the statute requires the party to file the underlying action before perfecting a mechanic’s lien pursuant to RSA 511-A:8.”).
 
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#82:  Extending the Deadline for Securing a Mechanic's Lien

10/9/2019

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RSA 447:9 and :10 provide that a mechanic’s lien must be secured through an attachment of the property improved within 120 days of the lienor’s last furnishing of labor or materials.   Over the years this statutory time frame has been lengthened by the legislature, from 60 days, to 90, and now to 120 – but actually recording a court-approved attachment within the allowable time has always been required.  As one early case noted, “The plaintiff’s lien depends for its existence and continuance upon a strict compliance with the provisions of the statutes.  Neglect to commence a suit and secure it by attachment upon the property within sixty days from the time the labor thereon was performed, or the materials therefor furnished, would operate to dissolve it.”  Marston v. Stickney, 55 N.H. 383, 385 (1875).

Suppose an unpaid contractor or supplier is trying to work things out with a customer as the 120-day deadline looms, and the parties want to extend the deadline.  Can they?

There are good reasons to think they can.  The time limit is designed to provide a fixed cutoff after which owners may rest easy.  In general, “statutory provisions enacted for the benefit of individuals may be so far waived by those for whose benefit they were enacted,” Mulhall v. Nashua Manufacturing Company, 80 N.H. 194, 205 (1921). This rule was applied to the notice rights of an owner in Janvrin v. Powers, 79 N.H. 44, 48 (1918) ("The statute prevents sub-contractors from acquiring liens upon the property of owners unless the statutory notices are given, and is for the protection of owners. The defendant's contention that he could not waive the statutory requirements of notice cannot be sustained. The statute being for his benefit there is no doubt that he could waive it.").

Then there is the statement in Tolles-Bickford Lumber Co., Inc. v. Tilton School, 98 N.H. 55, 58 (1953), that “The failure to perfect the lien within ninety days results in its expiration in the absence of a waiver which is not present in this case.”  (The statutory deadline was increased from 90 days to 120 days in 1991.)  Granted, this “absence of a waiver” language is what lawyers call dicta (statements not forming the basis for the decision), but the Court would have had little reason to mention a waiver exception if one didn’t exist.

I conclude that the 120-day deadline for an attachment to perfect a mechanic’s lien may be extended by agreement with the owner.  But what about time extensions without the owner’s agreement?  May the statutory deadline for the attachment be extended in any other way?

Recently a Superior Court judge ruled that just filing suit provides an automatic extension.  In considering several attachment petitions relating to the same project, he issued an order in one of the cases stating “This request is taken under advisement pending the issuance of a consolidated order on all other outstanding requests for mechanics’ liens and attachments related to this construction project.”  The plaintiff, a supplier whose 120-day window was about to close, immediately moved for interim approval of its attachment while the judge pondered his consolidated order.  The court denied the motion, ruling that “While RSA 447:10 suggests the mechanic’s lien may be secured by attachment made ‘while the lien continues,’ the Court finds the lien continues while the suit is pending, that the 120-days is tolled once the suit is filed. To hold otherwise would effectively and pragmatically deprive all would-be mechanic’s lien holders of the full 120 statutory lien period because they would realistically be required to file suit long before the 120-day period expires to ensure the granting of the attachment.”
 
This rationale falls apart if, as Justice Souter once wrote, “the court may grant an order of attachment ex parte ‘to perfect a labor and materials lien under RSA 447.’”  Chagnon Lumber Co. v. Stone Mill Const. Corp., 124 N.H. 820, 823 (1984).  And while the ruling appears favorable to lienors, it actually puts them at risk of losing out to “bona fide purchasers of the property for value before the writ of attachment was recorded,” id. at 824.
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#81:  Women-Owned Small Businesses

9/7/2019

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Since 2011, the Women-Owned Small Business (WOSB) program run by the SBA has afforded federal contracting opportunities to WOSBs by allowing contracting officers to set aside specific contracts exclusively for WOSBs in industries, like construction, where women-owned small businesses are underrepresented.  The enabling statute sets a goal of five percent of federal contracting dollars being awarded to WOSBs annually.  There are also limitations on how much work a WOSB can subcontract out to non-WOSB entities – for general construction contracts, it’s no more than 85% exclusive of the cost of materials.  13 C.F.R. § 125.6(a)(3).
 
The eligibility criteria for WOSBs are set forth in 13 C.F.R. § 127.201.  In general,
  1. The company must be “small” in its primary industry in accordance with SBA’s size standards for that industry.  (For construction trades, the maximum annual revenue of the company is currently $36.5 million for building contractors and heavy infrastructure contractors, $15 million for specialty trades.)
  2. The company must be at least fifty-one percent (51%) unconditionally and directly owned and controlled by one or more women who are U.S. citizens.
  3. Management and daily operation must be controlled by one or more of the women owners.
  4. The women owners must make long-term decisions for the business.
  5. For corporations, women must either: (1) comprise a majority of the Board of Directors (or have a majority of the Board votes through weighted voting); or (2) hold 51% of the voting power, sit on the Board and have enough voting power to overcome any supermajority requirements.
The diminished competition faced by WOSBs makes getting certified as a WOSB an attractive option.  Despite statutory changes in December of 2014 eliminating self-certification by WOSBs, thus far the SBA has continued to permit WOSBs to self-certify – but this is about to change under proposed regulations issued in May of this year.  Theoretically this change will lessen the number of sham or “paper” WOSBs that do not meet eligibility requirements – and particularly the requirement that the owners possess the managerial or technical experience and competency needed to control the business.

Illustrative of the problem is In the Matter of C & E Industrial Service, Inc., SBA No. WOSB-112, 2019 (S.B.A.), 2019 WL 1590652 (April 8, 2019).  C & E, a purported WOSB, was awarded a contract for rebuilding four parking lots at the White Sands Missile Range in New Mexico. An unsuccessful bidder protested the award, claiming that the owners of C & E, one of whom was its President, weren’t qualified to run a construction firm.  While they had significant managerial responsibilities at the firm, including overseeing administrative and field operations, their backgrounds were as school bus drivers.  Their husbands, on the other hand, had decades of experience in the construction field; one had 28 years of welding, commercial fabrication, construction, plumbing, heating and cooling experience along with 17 years in business ownership, management, and supervision, while the other had 25 years of industrial construction experience as a supervisor at a machinery and fabricating shop and in a construction company.
 
The SBA upheld the protest, finding that “the women owners lacked the adequate managerial experience and expertise to run the concern.  While Ms. Hernandez and Ms. Valles do perform administrative and financial tasks, they must also participate in the long-term decision making and day-to-day management to be found to be in control of the company.  A significant part of the day-to-day management, the field operations, are run by Mr. Hernandez and Mr. Valles. Moreover, the business license for Appellant lists Mr. Valles as the qualifying individual.  There is no indication that either Ms. Hernandez or Ms. Valles has supervisory control over the individual who holds the important business license, Mr. Valles, or over those with technical expertise, Mr. Hernandez and Mr. Valles.”
 
There are significant penalties for intentional misrepresentation of WOSB eligibility, including suspension, debarment and even civil or criminal penalties, but proving intent to dupe the Government is rarely a simple matter.  How much doing away with self-certification lessens the incidence of fraud remains to be seen.

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#80: Transitioning to the New Building Codes

8/11/2019

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Effective September 15, 2019, New Hampshire’s building codes – specifically the International Building Code, International Residential Code, International Plumbing Code, International Mechanical Code, International Existing Building Code and International Energy Conservation Code – will upgrade from their current 2009 versions to the 2015 versions published by the International Code Council.  The ICC updates its proposed codes every three years (there is already a 2018 version published), and New Hampshire is finally catching up to other New England states.

There are bound to be some fits and starts in implementing the transition – a subject the legislation adopting the 2015 codes did not address, and which is therefore left to the municipalities to deal with.  As of this writing, very few towns and cities have posted any guidance on how they will handle plans and applications already submitted to building code officials for approval under the 2009 versions.

It seems clear that approvals received prior to September 15, 2019 for plans and applications submitted under the old code will be honored without requiring revisions to implement new code changes, even for construction completed and building inspections conducted after that date – at least if the project is completed within a reasonable time thereafter.  Section 107.3.2 of the 2015 International Building Code and Section 106.3.2 of the 2015 International Residential Code both provide that “This code shall not require changes in the construction documents, construction or designated occupancy of a structure for which a lawful permit has been heretofore issued or otherwise lawfully authorized, and the construction of which has been pursued in good faith within 180 days after the effective date of this code and has not been abandoned.”  (The Town of Amherst has tweaked this by imposing a completion deadline of 180 days after September 15 for projects seeking to avail themselves of this safe harbor.)  
 
The thornier question is what to do about plans and applications in the pipeline that have not yet been approved by September 15 and are premised on the old code.  Don’t expect consistency here.  Some municipalities will take a hard line and insist on compliance with the 2015 codes.  (The Town of Chester, for example, has announced that “Any plans or applications submitted on or after September 1, 2019 must be designed to meet these codes.  Any project slated to begin after September 1, 2019 must also meet the new codes, regardless of application submittal date.”)  Others will continue to apply 2009 codes to pre-September 15 applications.  (The City of Nashua, for example, advises that projects “which have submitted an application for review prior to September 15, 2019 will be permitted to continue finalizing designs, receive permitting and have inspections performed to the applicable codes in effect at time of application, provided that final ‘For Construction’ building and building systems plans are submitted no later than December 15, 2019.”)
 
Pragmatically, a court challenge is more likely to be mounted against a strict approach (builders fully invested in a project designed to the 2009 codes may not be willing to eat significant redesign costs lying down) than against a lenient approach (someone injured due to a condition permitted by the 2009 code but forbidden by the 2015 code will likely see their lawsuit falter on a “discretionary function immunity” defense).  I suspect that many towns will favor the Nashua approach over the Chester approach for that reason. 
 
But don’t count on it.  If you will be applying for a building permit between now and September 15 in a town that has no published guidance on this issue, make a phone call and ask.  If you don’t get a straight answer – and maybe even if you do get a straight answer (local code enforcement officials’ off-the-cuff guesses, fueled by their desire for more time to study up on the changes, can get overruled later, spawning the kind of “municipal estoppel” lawsuits that make construction lawyers wince) – the wiser course may be to submit plans that comply with the updated code, even if it means having your architect troubleshoot and revise your design.
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#79:  Res Judicata and the Privity Element

7/21/2019

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How many bites at the apple is a litigant given to prove his claim?  Generally, only one.  This principle finds expression in a legal doctrine called res judicata, also known as claim preclusion, which “prevents parties from relitigating matters actually litigated and matters that could have been litigated in the first action.”  Merriam Farm, Inc. v. Town of Surry, 168 N.H. 197, 199 (2015). “[I]t applies if three elements are met: (1) the parties are the same or in privity with one another; (2) the same cause of action was before the court in both instances; and (3) the first action ended with a final judgment on the merits.”  Id. (quotation omitted).  The doctrine applies not only to court cases but to arbitrations.  Finn v. Ballentine Partners, LLC, 169 N.H. 128 (2016).
 
In this context “privity with one another” is shorthand for a substantive legal relationship between a party to the prior action and a non-party, one which makes it fair to conclude that “the interests of the non-party were in fact represented and protected in the prior litigation,” Cook v. Sullivan, 149 N.H. 774, 779 (2003), such as “when a person controls or substantially participates in controlling the presentation or if a non-party authorizes a party in litigation to represent his or her interests,” id.   Representation of interests is to be distinguished from commonality of interest.  As noted in New Hampshire Motor Transport Ass’n v. Town of Plaistow, 67 F.3d 326, 328 (1st Cir. 1995), “normally something more is required for privity between the prior and present litigants than merely a common interest in the outcome.”
 
Is the relationship between a general contractor and its subcontractors enough to establish the necessary privity?  If we analogize the contractor–subcontractor relationship to the employer–employee relationship, the answer would seem to be No.  In Daigle v. City of Portsmouth, 129 N.H. 561, 573 (1987), the Court “reject[ed] privity by employment for the basic reason that an employer representing himself does not necessarily defend the interest of the employee whose behavior has become the occasion for legal action. There is, rather, a potential for conflict between their respective interests, and this case illustrates it well: the employer’s option to defend by claiming that its employee acted outside the scope of his employment is an option to defend the employer by sacrificing the employee.”  The same is true when a GC defends against an owner’s tort claims on grounds that its subcontractor is an independent contractor for whose negligence the GC bears no responsibility.
 
It follows that a subcontractor is not automatically stuck with the outcome when the GC botches the claim – unless he had a duty to intervene in the case to assert his own rights, or authorized the GC to spearhead his claims (see Blog #55: Pass Through Claims).  But he may still stick the owner with the outcome if the GC won the prior case.  Say an owner litigates claims and counterclaims with his general contractor, and then sues the subcontractors for the same alleged sins.  The subs should be able to invoke res judicata even though they were not parties to the first lawsuit.  This result is suggested by Fiumara v. Fireman’s Fund Ins. Companies, 746 F.2d 87, 92 (1st Cir. 1984), where an insured litigated a case against his insurers in state court, and later sued the insurer’s investigators and testing laboratory in federal court:
 
“While these appellees were not parties to the state suit, the application of res judicata and collateral estoppel, both in the federal courts and in New Hampshire, is no longer grounded upon mechanical requirements of mutuality.  Instead, the significant question is whether a party has had a full and fair opportunity for judicial resolution of the same issue.  That opportunity was palpably present in the state court proceedings. And, given the allegations of the federal complaint that [appellees] were each and all acting as agents of the insurers when they committed the putative misdeeds for which they have now been sued, they clearly qualify as persons in privity with FFIC and DMFIC.  Thus, the res judicata defense is unmistakably available to them.”
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#78:  Substantial Completion: Whence It Came, Why It Matters

6/22/2019

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In the law of contracts, any failure to perform any promised duty is a breach.  Historically, whether a breach justified a complete refusal to pay the breaching party for goods or services furnished depended on whether the nonbreaching party received or refused the benefits of partial performance.  If he accepted them, he was obliged to pay for them; but if he opted to refuse them, he need not pay any of the agreed contract price.  This was dubbed the “perfect tender” rule: if a contract is made to do X for an agreed price, and X isn’t perfectly done, the nonbreaching party could refuse to pay any part of the price.

The first case to alter this rule was Britton v. Turner, 6 N.H. 481 (1834).  Britton had agreed to work for Turner for a full year, at the end of which Turner had agreed to pay him $120.  Britton quit after ten months and Turner refused to pay him a cent.  The court held that Turner must pay the fair value of Britton’s services (minus any damages from his failure to perform completely). Justice demanded that the divisible nature of the contract’s day-to-day performance precluded Turner’s rejection of their benefits, which were automatically deemed accepted.

Britton v. Turner limited its holding to “divisible” contracts (benefits accrue as performance is rendered) as opposed to “entire” contracts (benefits accrue only upon completion), and appeared to place construction contracts in the latter category: “[W]here the party has contracted to furnish materials, and do certain labor, as to build a house in a specified manner, if it is not done according to the contract, the party for whom it is built may refuse to receive it--elect to take no benefit from what has been performed.”  Eventually the courts abandoned this fallacy, and began treating construction contracts the same as labor contracts.  Danforth v. Freeman, 69 N.H. 466, 468 (1899) (“in special contracts for labor day by day, or for labor and materials in erecting a building upon the land of another, the person for whom the work is done necessarily receives the value of the work done as it is done, and if any advantage has accrued to him therefrom, is liable to pay for the benefit received,--the worth to him of the partial performance of the contract by the other party.”).

This has now morphed into the doctrine of “substantial performance,” which is “intended to protect the right to compensation of those who have performed in all material and substantive particulars, so that their right to compensation may not be forfeited by reason of mere technical, inadvertent, or unimportant omissions or defects.”  15 Samuel Williston, A Treatise on the Law of Contracts § 44:52, at 220-21 (4th ed. 2000).  The nonbreaching party is entitled to offset any costs of completion or correction – but he may not reject the performance and refuse to pay anything just because the finished product was not delivered 100% to his specifications.  Today the right of rejection due to lack of perfect tender is restricted to contracts for the sale of goods.

In the construction context “substantial performance” is equivalent to “substantial completion.”  Contracts will often define the phrase (the stage of construction at which the owner may use the work for its intended purposes being a particularly popular definition), and many contracts use it as a trigger for various things ranging from the initial release of retainage, to the cessation of liquidated damages, to the beginning of the warranty period.  It also starts the commencement of the eight-year statute of repose under RSA 508:4-b.  And most importantly, it renders the contractor’s breaches insufficiently material to justify terminating his contract.  As one leading commentator put it, “Substantial performance is performance without a material breach, and a material breach results in performance that is not substantial.”  E. Allen Farnsworth, Contracts § 8.12 (4th ed. 2004).  Upon achieving substantial completion, an unpaid contractor may sue for breach of contract and recover damages measured by the agreed contract price less any costs of completing or correcting the work (i.e., punch list items).
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#77:  Mechanic's Lien vs. Mortgage: A Quirk in the Priority Scheme

5/26/2019

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A few years back I blogged (#42) on priorities as between mechanic’s liens and earlier-filed construction mortgages (the mechanic’s lien wins, subject to a couple of exceptions), and as between mechanic’s liens and earlier-filed conventional mortgages (the conventional mortgage wins).  This priority scheme raises the possibility that the priorities may not be transitive: A could trump B, B could trump C and C could trump A if a construction mortgage is recorded first, a conventional mortgage is recorded second and a mechanic’s lien is recorded third.  In such a case, what will be the pecking order after a foreclosure?

Recently the New Hampshire Supreme Court rendered an opinion on a somewhat analogous fact pattern that may shed light on our question.  In Sabato v. Federal National Mortgage Association, 172 N.H. 128 (2019), the plaintiff’s wife gave two mortgages on her home to two different mortgagees, but the plaintiff waived his $120,000 homestead exemption – which trumps a mortgage if not waived, see RSA 480:5-a – only as to the second mortgage.  When the second mortgagee foreclosed and bought the property at auction for $64,872 subject to the first mortgage, the question arose whether the homestead exemption had been extinguished by the foreclosure even as to the first mortgage.  “The plaintiff contended that foreclosure of the second mortgage did not affect his homestead right because he had not waived that right in the first mortgage.  FNMA argued that, because the plaintiff waived his homestead interest in the second mortgage, he could not now assert any homestead right.”  Id. at 130.

Both positions were rejected.  Noting that “upon foreclosure, the plaintiff’s homestead right had priority over the first mortgage,” the Court ruled “the waiver gave [the] second mortgage priority over the first mortgage up to the value of the plaintiff’s homestead right ($120,000),” meaning that when it “foreclosed its second mortgage, it stepped into first position up to a maximum of $120,000 because it, unlike the first mortgagee, had access to the value of the homestead right, and that right, as previously noted, had priority over the first mortgage.”  Id. at 133.  Since the $64,872 bid at the foreclosure sale was the second mortgage balance, there was no surplus to deal with, but the Court nevertheless said this: “Had the property sold for more than the indebtedness under the second mortgage note, the surplus proceeds up to the remaining balance of the plaintiff’s homestead exemption would have been exempt from the first mortgage and payable to the plaintiff before FNMA, as holder of the first mortgage, received any proceeds.”  Id. at 134.

The Court then addressed the extent to which the homestead exemption had been extinguished by the foreclosure, ruling that “any portion of the exemption left after satisfying the second mortgage, which continues to exist in either the surplus [citation omitted] or, we now hold, in the property, is not subordinate to the mortgage and is not extinguished by the foreclosure. . . The waiver of the plaintiff’s homestead exemption in the second mortgage did not impute a waiver into the first mortgage; rather, the waiver in the second mortgage merely gave the second mortgagee the right to step into the plaintiff’s shoes with respect to his priority over the first mortgage up to the value of the homestead exemption . . . The plaintiff, having waived his homestead right in the second mortgage, has no grounds to complain that the second mortgagee has availed itself of the homestead to satisfy its mortgage and left him unable to assert his entire homestead exemption against the first mortgagee.”  Id. at 135.

The analogy between a homestead exemption and a mechanic’s lien is not perfect, but Sabato suggests that a mechanic’s lien with priority over a first mortgage but not over a foreclosing second mortgage will be extinguished by the second mortgagee’s foreclosure only to the extent necessary to satisfy the second mortgage balance.  A sales price at foreclosure above that amount will likely be deemed to create a fund on which the mechanic’s lienor has first dibs.  To be safe, the lienor may need to bid at auction a price sufficient to cover not only the second mortgage balance but the lien amount as well.
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#76:  Indemnity and the Statute of Repose

4/24/2019

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New Hampshire’s statute of repose for construction claims, RSA 508:4-b, puts a time limit of eight years from the date of substantial completion on the filing of most lawsuits challenging construction and design deficiencies in the creation of an improvement to real property, after which time no suit can be brought regardless of whether the claim was latent and not discoverable for most or all of that period.  In this respect it is unlike the statute of limitations, RSA 508:4, whose three-year clock does not start ticking until the claim “accrues” -- which may be more than three years after the breach of duty occurs if the breach and resulting injury were neither discovered nor reasonably discoverable until later.
 
The statute of limitations operates differently with respect to indemnity claims, which “do not accrue for the purposes of the statute of limitations until a judgment has been paid by the third-party plaintiff” because the “statute of limitations cannot possibly start to run on an indemnity claim until the party seeking indemnification suffers a loss.”  Jaswell Drilling Corp. v. General Motors Corp., 129 N.H. 341, 347 (1987).  Often a suit brought within that three year limitations period will result in a judgment beyond it, yet still allow the loser’s indemnification suit against the indemnitor to proceed even though filed well more than three years after the underlying claim accrued.  But what if the party seeking indemnification suffers that judgment, that “loss,” more than eight years after substantial completion of the improvement giving rise to the underlying claim?  Does the statute of repose shut out his right to indemnity?
 
A recent decision from New Hampshire’s federal district court says it does.  In Continental Western Insurance Co. v. Superior Fire Protection, Inc., Civil No. 18-cv-117-JL, 2019 WL 1318274 (D.N.H. March 22, 2019), the inspector/tester of a sprinkler system was sued by the subrogee of the hotel where the system had failed, and in turn sought indemnity or contribution from the installer of the system.  The installer, having substantially completed its work more than eight years prior to the lawsuit, sought refuge under the statute of repose.  The inspector/tester countered that its claim for indemnity did not accrue until it was sued by the subrogee.  But “accrual” is not the trigger under the statute of repose, said Judge LaPlante.  Rather, substantial completion is the trigger, barring indemnity and contribution claims “even if those claims would — as they would here — accrue after the repose period has run.”  The Court granted the installer’s motion for summary judgment.
 
What is somewhat unusual about this case is the fact that the underlying action by the subrogee against the inspector/tester was not itself barred by the statute of repose (because the allegedly deficient inspection/testing of the sprinkler system was not a  “deficiency in the creation of an improvement to real property,” and in any event occurred years after that improvement was substantially complete).  In most construction settings the would-be indemnitee, if sued within eight years of substantial completion of the improvement at issue, will still be timely in seeking indemnity from an indemnitor -- as long as he doesn’t wait to suffer a judgment first.  And he doesn’t need to wait.  As Judge McNamara noted in Penta Corporation v. Town of Newport, No. 212-2015-CV-00011, 2015 WL 11182532 (Merrimack Super. Ct., Nov. 20, 2015), “While technically the right to indemnity arises when a judgment is rendered in favor of another, it has long been the practice to try indemnity claims, when properly pled, along with an underlying action.”  Indemnity claimants would be well served to file their cross-claims against potential indemnitors in the underlying action, before the eight-year repose clock winds down.
 
Quaere: Continental Western concerned a claim of derivative or equitable indemnity, not one of express contractual indemnity.  If there had been such a contractual right to indemnity, would a claim for breach of that contract still have been barred by the statute?
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#75:  Recovery for Defective Work After Termination for Convenience

3/13/2019

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Many contracts specify that an owner may terminate a contractor, and many subcontracts specify that a contractor may terminate a subcontractor, either for cause (i.e., for breach) or for “convenience” (i.e., without breach).  Generally there are different remedies associated with each type of termination, with convenience terminations providing for more favorable benefits to the terminated party.  And there could be one unintended benefit: protection against backcharges for defective work.
 
Shelter Products, Inc. v. Steelwood Construction, Inc., 257 Or.App. 382, 307 P.3d 449 (2013), explains the logic.  A general contractor (Catamount) terminated one of its subcontractors (Steelwood) under a clause in their subcontract that read “The Contractor may, upon seven (7) days written notice to the Subcontractor, without cause and without prejudice to any other right or remedy, terminate this Subcontract, in whole or in part, for its convenience . . . The obligations of the Subcontractor shall continue as to portions of the work already performed and as to bona fide obligations assumed by Subcontractor prior to the date of termination. Subcontractor shall be entitled to be paid the full cost of all work properly done by Subcontractor to the date of termination not previously paid for, less sums already received by Subcontractor on account of the portion of the work performed.”
 
When Catamount refused to pay Steelwood’s last materials invoice, Steelwood sued -- and Catamount counterclaimed for alleged defective work.  The trial court disallowed the setoff, and the appeals court agreed, ruling that “the text of the termination for convenience clause, in context, does not under the circumstances of this case permit Catamount to both terminate Steelwood without cause and subsequently proceed against Steelwood as if it had terminated the agreement for cause. . . [W]e are persuaded, at least in the absence of an opportunity to correct allegedly defective work, that, where a party has terminated a contract for convenience, that party may not then counterclaim for the cost of curing any alleged default.”
 
Depriving a terminated contractor of an opportunity to cure defects was likewise the basis for rejecting defective workmanship claims in TRG Construction, Inc. v. Water & Sewer Authority, 70 A.3d 1164, 1167-68 (D.C. 2013) (“Upon terminating a contract for convenience, the government loses whatever right it has to hold the contractor responsible for correcting deficiencies in the work included in the terminated portion of the contract”), and in Paragon Restoration Group, Inc. v. Cambridge Square Condominiums, 42 A.D.3d 905, 839 N.Y.S.2d 658 (2007)  (“[w]here [defendant] elects to terminate for convenience . . ., whether with or without cause, it cannot counterclaim for the cost of curing any alleged default’”) (quoting Tishman Constr. Corp. v City of New York, 228 A.D.2d 292, 293 (1996)).
 
This last comment may be overbroad, since defaults come in many forms aside from poor workmanship, some of which may not be curable by the terminated party.  Old Colony Construction, LLC v. Town of Southington, 316 Conn. 202, 113 A.3d 406 (2015), for example, held that liquidated damages could be recovered from a contractor who was terminated for convenience.  But if a contractor’s right to cure is vitiated by a termination for convenience, uncured defects in its work may well leave the owner with no recourse.
 
This is not to say that every termination for convenience clause is so worded as to leave the terminating party without a remedy for defective work.  Parties are free to craft language preserving that right.  How New Hampshire courts will rule on the matter will undoubtedly depend on the precise clause at issue.  But this much is reasonably certain: if the contract affords the terminated party with an opportunity to correct deficiencies -- Section 12.2.1 of the popular AIA form A201 General Conditions is an example -- termination for convenience is far more likely to preclude recovery for uncured defects.  An owner who has cause to terminate a contract, but chooses instead to terminate for convenience, may end up regretting it.
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#74:  Disclaiming Implied Warranties: Public Policy Considerations

1/1/2019

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A necessary principle of contract law is that “[p]arties generally are bound by the terms of an agreement freely and openly entered into,” Mills v. Nashua Federal Sav. and Loan Ass’n, 121 N.H. 722, 726 (1981).  The word “generally” here is important, for courts “will not enforce a contract or contract term that contravenes public policy,” Harper v. Healthsource New Hampshire, 140 N.H. 770, 775 (1996). “An agreement is against public policy if it is injurious to the interests of the public, contravenes some established interest of society, violates some public statute, is against good morals, tends to interfere with the public welfare or safety, or, as it is sometimes put, if it is at war with the interests of society and is in conflict with the morals of the time.”  Id. (quotation omitted).

The implied warranty of habitability attending new construction, affording consumers a minimum level of protection against latent defects that are not readily identifiable from inspection of the premises, is itself a creature of public policy.  Nevertheless, a contractor or developer will occasionally try to disclaim it, usually by providing an express limited warranty in connection with new construction that limits a customer’s remedies to the strict terms of the limited warranty to the exclusion of any other warranties express or implied -- including implied warranties of workmanship and habitability.  This puts the public policy behind the implied warranty in tension with freedom of contract.

Nowhere is this tension more stark than in the case of building codes, which by their nature are public policy expressions of the minimum level of required protection for occupants of buildings. Any effort by a contractor or developer to disclaim the implied warranty of good workmanship or the implied warranty of habitability will, to the extent that code compliance is embraced by the warranty, be suspect.
 
While our Supreme Court has not had occasion to rule on the issue, Massachusetts courts have long held that disclaimers of implied warranties, which include but go beyond building code compliance, are invalid.  This was recently reaffirmed in Trustees of The Cambridge Point Condominium Trust v. Cambridge Point, LLC, 478 Mass. 697, 705 (2018):
 
“Massachusetts has a well-established public policy in favor of the safety and habitability of homes, as reflected in our implied warranty of habitability under common law and in the legislative enactment of building codes. . . . We have emphasized that ‘[the implied warranty] cannot be waived or disclaimed, because to permit the disclaimer of a warranty protecting a purchaser from the consequences of latent defects would defeat the very purpose of the warranty.’” (citation omitted).

In this regard it is worth noting the mandatory language of RSA 155-A:2,VII: “The contractor of a building, building component, or structure shall be responsible for meeting the minimum requirements of the state building code and state fire code.”  Allowing the contractor and its customer to waive this responsibility as between themselves would, of course, not preclude code enforcement officials from insisting on repairs, but as a practical matter once the building is occupied by the customer, it is the customer who will bear the wrath of code enforcement officials.  A disclaimer of an implied warranty embracing code compliance would deprive the customer of recourse against the contractor, and all but render the language of the statute a dead letter.

Declaring the implied warranty unwaivable on public policy grounds would avoid another thorny issue: if the first purchaser agrees to the builder’s disclaimer but a subsequent purchaser does not, will the subsequent purchaser -- to whom the implied warranty extends as well, see Lempke v. Dagenais, 130 N.H. 782 (1988) -- be stuck with his seller’s disclaimer?  
 
Until our Supreme Court speaks to these issues, lawyers can only guess at the outcome; but I advise my contractor clients that while they are free to try, they should not count on their disclaimers and waivers passing muster, at least where code violations are in play.
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#73:  Do Contractors Have a Right to Fix Their Own Defective Work?

11/7/2018

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Some months back I blogged (#59) on New Hampshire’s “Right to Repair” statute, RSA 359-G, and I noted its limitations and lack of teeth.  It applies only to residential construction, and it provides little more than a temporary delay in a homeowner’s ability to sue.  It does not address whether, once an owner sues, the contractor’s rejected offer to repair defective work will be a defense to claims for damages measured by the cost of having a third party do the repairs.
 
There are few safer bets than that the cost of third party repair will exceed what it would cost the defendant contractor to make things right.  Since plaintiffs have a duty to mitigate their damages where reasonably possible, you might think that refusing to afford the contractor a repair opportunity is risky business for the owner.  Well, not so much.  Our courts generally take a “once burned, twice shy” approach to the question, and usually support an owner’s lack of confidence that the original contractor will improve its performance if given a second bite at the apple.   Wrobleski v. Constellation Corp., 118 N.H. 532, 533 (1978), is the leading authority for this approach.  I’ll let the Supreme Court’s words speak for themselves here:
 
“[D]efendant asserts that it had offered to remedy the plaintiffs’ septic system problem for a cost of approximately $500 and that it was improper for plaintiffs to hire someone else to reconstruct the leach field at a cost of $1,200.  Plaintiffs were not compelled to solve their problem only by the use of employees of the defendant, and the master could conclude that based on the past performance of the defendant, plaintiffs need not further repose confidence in its ability to correctly solve the leach field problem.”
 
Wrobleski suggests that the conclusion that lack of trust is justified based on a contractor's past performance is not compelled; it is merely permissible.  The circumstances of the particular defect and the complexity of its repair will determine whether that conclusion is sound in any given case -- and that will almost always be a question for the jury.  Something more than merely leaving a job before applying the final coat of paint will need to be in play; the circumstances must suggest a lack of skill rather than a lack of attention to detail.
 
Most contractors facing a plausible claim for defective work will want to make the offer of repair right away, for two reasons.  First, not doing so may doom any mitigation of damages defense down the road.  See Berkshire Medical Center, Inc. v. U.W. Marx, Inc., 644 F.3d 71, 78 (1st Cir. 2011) (“As for giving Marx the option of doing the replacement job itself, Berkshire had little reason to think that Marx either could be trusted to do it or would have any interest in doing so”). Second, the offer, if rejected, cannot be used against the contractor in court as evidence that he admitted liability.  Rule of Evidence 408 provides that “evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.” 
 
The wiser course is for the parties’ contract to address the issue up front, by providing both a right to repair and a duty to repair defects discovered during the warranty period.  The popular AIA form A201 (2017), General Conditions of the Contract for Construction, takes this approach in Section 12.2.2.1 (“During the one-year period for correction of Work, if the Owner fails to notify the Contractor and give the Contractor an opportunity to make the correction, the Owner waives the rights to require correction by the Contractor and to make a claim for breach of warranty.").
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#72:  Determining the Amount of a Mechanic's Lien

10/7/2018

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A contractor is thrown off a job midstream for alleged shoddy work and/or slow performance.  He sues the owner for his unpaid contract balance.  His contract provides for interest and attorneys’ fees if payment is not timely made, so he adds both to his complaint.  The owner then counterclaims for the cost of correcting items of poor workmanship and for the cost of completing the unfinished work (which the owner claims will exceed the unpaid contract balance), and perhaps for delay damages as well.

Suppose the contractor applied for and got a mechanic’s lien attachment on an ex parte basis in the full amount of his claims (unpaid balance, interest and anticipated attorneys’ fees).  If the owner then files an objection to the lien and asks for a hearing, what will be grounds for the judge to reduce or eliminate the lien?

The starting point is the basic mechanic’s lien rule in RSA 447:2 that anyone who furnishes labor or materials to improve another’s property “shall have a lien on any material so furnished and on said structure, and on any right of the owner to the lot of land on which it stands.”  The word “shall” here means what it says.  The lien is a matter of right so long as it is timely and properly perfected.  Timeliness is governed by RSA 447:9, providing that the lien “shall continue for 120 days after the services are performed, or the materials, supplies or other things are furnished.” Perfection is governed by RSA 447:10, providing that a mechanic’s lien is secured “by attachment of the property upon which it exists at any time while the lien continues.”  

Because an attachment is a court order, it is tempting to assume that all of the provisions of New Hampshire’s pre-judgment attachment statute, RSA 511-A, will apply to that effort -- including RSA 511-A:3, which requires “the plaintiff to show that there is a reasonable likelihood that the plaintiff will recover judgment including interest and costs on any amount equal to or greater than the amount of the attachment.”  This statute focuses on the ultimate judgment, where counterclaims will matter; any judgment will necessarily be reduced by a successful counterclaim.  But a number of Superior Court decisions, including Consolidated Elec. Distrib., Inc. v. SES Concord Co., No. 89-C-571/579 (Merrimack County Superior Ct., Nov. 21, 1989), and West Side Dev. Group, LLC v. D’Amour, No. 04-C-018, (Carroll County Superior Ct., March 24, 2004), have held that the provisions of RSA 511-A:3 do not apply to mechanic’s lien attachments, thus relieving the contractor of the burden of proving a reasonable likelihood of getting a judgment at least equal to the lien amount.  Our federal court has followed suit.  H.E. Contracting v. Franklin Pierce College, 360 F.Supp.2d 289 (D.N.H. 2005).

Freed of the burden of showing a likelihood that he will recover a judgment “equal to or greater than than the amount of the attachment,” the contractor will be allowed to lien for the amount of his claim regardless of whether the owner may have a setoff against that amount at trial.  The amount of the lien will be the unpaid contract sum, i.e., the contractually agreed value of the labor and materials furnished.  The owner may be able to argue that defective goods and deficient work must be taken into account in valuing the contractor’s performance, but not all courts will lend an ear to that argument at the attachment hearing, preferring to leave that claim for trial and not gut the lien at the pretrial stage.

Note that the inapplicability of RSA 511-A:3 cuts both ways; a mechanic’s lien attachment will not include “interest and costs” (which for this purpose will include attorneys’ fees).  If those amounts were included in the lien amount ex parte, subtracting them may be the owner’s lone victory at the attachment hearing.
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#71:  Product Warranties of Future Performance

9/30/2018

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Consider this scenario:  Owner needs a new roof, and sees Manufacturer’s advertisement for “30-year shingles.”  He picks up a catalog, which trumpets “30 year protection.”  The limited warranty at the end states that if the shingles fail in the first 30 years due to manufacturing defects, Manufacturer will pay to replace them according to a prorated formula (the longer into the 30 years, the lesser the Manufacturer’s liability) but excluding the costs of tear down, disposal and new installation.  Owner buys them, believing that they will last for 30 years.  
 
In 15 years, the shingles fail and Owner sues Manufacturer for the cost of a new roof -- including the tear down, disposal and new installation costs.  Owner says that he has no recollection of reading the limited warranty, but relied on Manufacturer’s marketing catalog, which gave the impression of an express warranty that the shingles would last 30 years.  He points to Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813 (2005), which held that a statement in window marketing materials asserting that the window would be “permanently” protected against rot was an affirmation or promise creating a warranty of future performance.
 
Under the Uniform Commercial Code governing the sale of goods, an express warranty is created by “[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain,” or “[a]ny description of the goods which is made part of the basis of the bargain.”  RSA 382-A:2-313(1).  The seller can fashion the terms of its warranty and limit it in various ways -- for example, by excluding liability for costs beyond repair and replacement.  Unless a shorter duration is agreed to, a four year statute of limitations governs lawsuits for breach of warranty commencing on date of delivery, RSA 382-A:2-725(1) -- but if the warranty “explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance,” then the clock starts ticking “when the breach is or should have been discovered.”  RSA 382-A:2-725(2).
 
The alleged catalog promise in our hypothetical expressly extends to future performance, so Owner’s lawsuit is timely.  Assuming that the limited warranty did not exclude all other warranties -- a common provision in limited warranties -- the remaining question is, how do we reconcile the two warranties?  The New Hampshire Supreme Court’s decision in Faro v. IKO Industries, Inc., No. 2017-0325 (Jan. 26, 2018), sheds some light on this.
 
In Faro a homeowner relied on a shingle manufacturer’s marketing materials which “contained language, such as ‘30-year’ shingles, that would lead a consumer to believe that the shingles would last for the duration of the warranty.”  The trial judge held that “the only representations in these marketing materials pertaining to duration are that the . . . shingle is backed by a ‘limited’ 30 or 35 year warranty” and therefore were not “guarantees that the . . . shingles will last for a particular number of years, but rather an affirmation that the shingles come with a 30 or 35 year limited warranty.”  The Supreme Court agreed, finding no “representation of the defendant that the shingles, without limitation, would last for thirty or thirty-five years.”
 
The Faro case should be considered in connection with RSA 382-A:2-317’s admonition that “Warranties whether express or implied shall be construed as consistent with each other and as cumulative, but if such construction is unreasonable the intention of the parties shall determine which warranty is dominant.”  The reasonableness of construing a catalog warranty as independent of a limited warranty contained in the same document has gotten a little dicier after Faro.  If there is no reasonable way to divorce them, the buyer will be stuck with his remedies under the limited warranty, terms which are typically more favorable to the seller.
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#70:  Owner and GC Tort Duties to Subcontractor Employees

8/11/2018

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It is commonplace for subcontractors to promise to provide for the safety of their employees, and for general contractors to promise the owner that they will maintain site safety as well.  Who is liable for injuries to the sub’s employees in such cases?  The recent case of Grady v. Jones Lang Lasalle Construction Co., 171 N.H. 203 (2018), provides some guidance.
 
Steven Grady was an employee of A&M, a roofing subcontractor to Jones Lang on a project in Dover owned by Liberty Mutual.  A&M’s subcontract required it to assume full responsibility for implementing safety programs on the project, to maintain all work areas in a safe manner, and to furnish all safety equipment.  But on one cold and windy February day, A&M did not furnish rubber gloves and fire-proof leather gloves to Grady when he was using a cleaning solvent and a torch to melt ice on the roof -- and Grady ended up burning his hand.  He couldn’t sue A&M due to the Workers’ Compensation Law’s exclusivity provision, but he could and did sue the GC and the owner, claiming that they owed him a duty to maintain a safe working environment.
 
The New Hampshire Supreme Court disagreed.  Noting that “A&M, not Jones Lang, supervised him and provided him with the equipment that he used,” the Court decided that Jones Lang’s general duty to monitor the site for dangerous conditions was not implicated.  Nor could Grady rely on Jones Lang’s promise in its general contract with the owner to “be responsible for initiating, maintaining and supervising all safety precautions and programs,” and to be “fully responsible” for “the acts, errors, omissions, defaults and conduct of all Subcontractors.”  The Court found this promise to be solely for the owner’s benefit.
 
The Court also mentioned that the general contract “required Jones Lang to require any subcontractor to assume the same responsibilities for the subcontracted work, and A&M in fact assumed those responsibilities in the subcontract,” and that A&M was “the party in the best position to know about the particular dangers involved in its specialty work and to provide appropriate equipment and supervision to safely perform that work.”  Had Jones Lang itself undertaken to provide any services necessary for the protection of Grady, or had Jones Lang altered the conditions of the roofing work or the equipment needed to perform it, the Court indicated that the outcome might have been different.  The lesson for general contractors is clear: make sure your subcontract shifts safety responsibility downstream, and then let your sub handle its own safety program; don’t mess with its implementation.
 
Grady also sued Liberty Mutual on the theory that owners are liable for injuries resulting from “inherently dangerous activity” on their premises.  The Court ruled that winter roofing work itself is not inherently dangerous; rather, the employee created a new and unanticipated danger when he used a torch and solvent without proper gloves.  It also rejected Grady’s claim that a business owner is vicariously liability to invitees at its premises for the negligence of independent contractors.  The Court noted that A&M had agreed to indemnify the owner from any claims arising out of A&M’s negligence -- which meant that A&M would ultimately have to foot the bill, a result contrary to the exclusivity provisions of the Workers’ Compensation Law.
 
Because the Grady case held that neither the GC nor the owner owed any duty to the subcontractor’s employees to keep them safe from the type of risk involved there, the question of their negligence -- i.e., whether a duty was breached -- never got addressed.  We’ll never know whether their failing to prevent Grady’s use of a torch and cleaning solvent on a windy day without proper gloves was negligent.  Frankly, I can’t imagine any jury finding that it would have been; Grady’s accident was not reasonably foreseeable to the owner or the GC.
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#69:  Measures of Adequacy in Contract Performance

7/4/2018

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In their first year of law school, budding lawyers learn in Contracts class about the “perfect tender” rule and the “substantial performance” rule.  These alternative measures of adequate performance raise precisely the issue that their words suggest: must a contracting “promisor” give the “promisee” (please forgive the legalese) exactly what was promised, or is a “close enough” standard applicable?
 
In construction cases, “close enough” is not enough to prevent a breach of contract from occurring, but when a failure to deliver a perfect tender of the design and construction elements of the contract causes the other party no damages, “close enough” will yield the same financial result as no breach at all.
 
The leading case is Justice Cardozo’s opinion in Jacob & Youngs, Inc. v. Kent, 230 N.Y. 239 (1921).  The contract in that case specified Reading pipe, but different pipe identical to Reading pipe in every material way was inadvertently installed, a mistake first discovered after construction was complete.  The court refused to allow the owner to withhold from final payment the cost of tearing out and replacing the off-spec pipe, ruling that while “[t]here is no general license to install whatever, in the builder’s judgment, may be regarded as ‘just as good,’” nevertheless the court “must weigh the purpose to be served, the desire to be gratified, the excuse for deviation from the letter, the cruelty of enforced adherence.  Then only can we tell whether literal fulfilment is to be implied by law as a condition . . . In the circumstances of this case, we think the measure of the allowance is not the cost of replacement, which would be great, but the difference in value, which would be either nominal or nothing.”

Whether “substantial performance” has been met in a given case goes far beyond the functional equivalency of brand name components.  Quality is in the eye of the beholder, and contractors’ views of what is “good enough” may not match owners’ views.  Building codes address only a fraction of the myriad ways that quality of construction can come into play, and even those codes are subject to interpretation.  See Streit v. Callahan, 122 N.H. 244 (1982) (affirming a verdict that stairs constructed with a nine-inch tread but at an angle of less than ninety degrees between tread and riser were defective, based on an expert’s interpretation of the code).
 
One way to head off disagreements on quality, particularly for dimensional and positional aspects of the construction, is to agree in advance on tolerances -- the allowable deviation from “perfect” -- when considering how tight, how smooth, or how plumb/level/square the construction must be in order to count as “good enough.”  In the residential setting, the National Association of Home Builders publishes “Residential Construction Performance Guidelines,” now in its fifth edition, which sets out minimum performance criteria that can be incorporated into the parties’ contract.  Other trade associations publish similar guidelines for specific industries (the National Frame Building Association, American Concrete Institute, and American Institute of Steel Constructors come to mind).  If agreed upon up front, these published standards will govern.
 
Sometimes a dispute over whether the contractor’s implied warranty of workmanlike quality has been met will spark the argument that such industry trade group standards define the standard of good workmanship even without their express incorporation into the parties’ contract.  Our Supreme Court has yet to adopt that view.  While those standards are admissible evidence on the question, expert testimony is the time-honored way of establishing the mark, and while most experts do rely on such standards, in the end the jury decides both the measure of adequate performance and whether it has been met.
 
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#68:  Energy Code Compliance

6/24/2018

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On June 12, 2018, Governor Sununu signed into law House Bill 1472, repealing the state code for energy conservation in new construction (RSA 155-D) effective August 7, 2018.  RSA 155-D, first enacted in 1979 before the international building codes came into prominence, has largely been redundant since New Hampshire’s adoption of the International Energy Conservation Code as part of its state building code (RSA 155-A) in 2002.  HB 1472 was intended to clean up that redundancy.  But repeal of the old law may have an unintended consequence.
 
As with RSA 155-D, the 2009 IECC -- the version currently in effect in New Hampshire -- has different rules for residential and commercial buildings.  (Residential buildings more than three stories above grade are considered commercial for code compliance purposes; commercial buildings three stories or less above grade may show compliance with residential requirements instead.)  Under RSA 155-D:4, plans for both types of construction bearing the certification of a licensed architect or engineer that the design met code had to be submitted to the public utilities commission for review and approval (with the default rule that unless the commission notified the applicant of noncompliance “within 15 working days of receipt, they shall be considered automatically approved”).  The commission historically issued a permit only for residential construction (based on submission of application form EC-1), and relied on the design professional's certification without issuing a permit for commercial construction.
 
Section 103.1 of the 2009 IECC provides that “[t]he construction documents shall be prepared by a registered design professional where required by the statutes of the jurisdiction in which the project is to be constructed.”  Upon repeal of RSA 155-D, New Hampshire has no such statute. The new law partially plugs the gap on the residential side, requiring the Building Code Review Board to develop “a simplified residential energy code compliance form based upon the energy provisions in the International Residential Code and the International Energy Conservation Code” which, on proper completion, will be accepted by all New Hampshire code enforcement authorities as evidence of compliance with energy code requirements.  But neither an application form nor a design professional’s certification of compliance with energy code requirements is now part of our law for commercial buildings.  The new law explicitly charges the public utility commission with a duty of “verification that the applicable project meets the code requirements” for residential construction, but there is no similar requirement for commercial construction.

As with all building codes, enforcement in New Hampshire is at the local level where the municipality has adopted an enforcement mechanism pursuant to RSA 674:51, and at the state level where there is no local enforcement.  In the latter case, RSA 155-A:7 shifts enforcement authority over the entire building code (of which the IECC is a part) to the state fire marshal or his designee, but only “upon written request of the municipality.”  Thus far no legislation is in the works to bring the public utilities commission into the enforcement mix for commercial buildings, with the result that its rules promulgated under the authority of RSA 155-D are likely to lapse as applied to commercial construction.
 
Perhaps this gap will eventually be plugged in connection with adopting the 2012 or 2015 IECC, both of which significantly increase required R-values, U-values and energy ratings generally, as well as efficiency of mechanical systems and lighting, over the 2009 version currently in force.  New Hampshire is lagging somewhat behind other Northeastern states in keeping up with the triennial revisions to the IECC (Massachusetts, New York and Vermont use the 2015 version, Connecticut and Rhode Island the 2012 version).  The last legislative push to update New Hampshire’s building codes, including the IECC, was defeated in 2016 when the Building Code Review Board's recommendation to adopt the 2015 version of all of the international building codes as a group met with industry lobbying resistance.  Nothing prevents the Board from adopting rules directly amending the code pursuant to RSA 155-A:10, which authorizes such amendments subject to later ratification by the Legislature.
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#67:  Paying Your Subcontractor's Employees

5/28/2018

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Like many states, New Hampshire law requires that if a subcontractor doesn’t pay wages to its employees, the general contractor must pay them.  RSA 275:46.  Similarly, New Hampshire law provides that if a subcontractor doesn’t pay amounts owed to its employees under workers’ compensation laws, the general contractor must cover those as well.  RSA 281-A:18.  If the general contractor must write a check under either of these statutes, the subcontractor will owe reimbursement to the general contractor -- but it’s a safe bet that any subcontractor who can’t meet payroll or pay workers’ comp premiums won’t be able to meet any reimbursement obligation either.  How does a GC protect itself?
 
Before subcontracting any significant portion of a long term job to someone who isn’t known to be financially solvent, the wise general will ask for proof that the sub can carry the strain of weekly payroll through a monthly requisition procedure, with retainage.  If a sub won’t share its current financials, chances are they aren’t pretty.  While some solvent subs would rather protect their financial privacy than land a particular job, it can’t hurt to ask.
 
An insurance certificate showing that the sub has workers comp coverage should always be a prerequisite to allowing the sub to proceed.  While it doesn’t guarantee that the premiums will be paid through the duration of a project expected to last many months, the written subcontract can also provide for direct pre-cancellation notice from the insurer to the general contractor if policy premiums are late.
 
Second, written subcontracts can provide that all payments made to the subcontractor are to be held “in trust” for the benefit of the subcontractor’s employees working on the project, including wages and all associated employee-related expenses.  The main advantage of such “trust fund” provisions is in bankruptcy; trust funds are not considered assets of the subcontractor/debtor that can be distributed to general creditors.
 
On federally funded projects the Davis Bacon Act requires the submission of certified payrolls in order to ensure compliance with the prevailing wage requirements.  (Davis Bacon requirements are yet another instance in which “[t]he prime contractor shall be responsible for the compliance by any subcontractor,” 29 C.F.R. § 5.5(a)(6).)  But even on private projects written subcontracts can reserve the right to inspect subcontractor payroll records.  At the first hint of trouble the GC should demand to see them -- and if they aren’t in order, it can withhold payment to the sub. The threat of that withholding may be enough to entice the sub to prioritize scarce dollars toward employee-related debts before feeding any other wolf at the door.
 
Some subcontracts provide that unpaid employees may be paid directly and/or issued joint checks.  I generally do not recommend this except as a last resort.  While it may be the only way to keep them on the job, it also entails the risk that the GC will be deemed a “joint employer” of the sub’s employees -- in which case the GC may have more than just wages to worry about, ranging from fringe benefit claims under collective bargaining agreements with the sub, to Fair Labor Standard Act claims, to Title VII discrimination issues, and more.
 
Finally, the general should insist -- even if the owner doesn’t -- on sworn lien waivers with each progress payment to the sub, verifying that the sub has paid for all labor and materials on the project with the last progress payment and will do so out of the present progress payment.  If the sub falsely swears (it happens!), any principal of the sub signing the lien waiver may also be liable to the general.
 
Bottom line: There is no foolproof protection short of a payment bond, which adds a layer of expense that could narrow the field of available subcontractors.  But hey, who ever said that general contracting was risk-free?
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#66:  Labor Inefficiency Costs: Who Pays? How Much?

4/26/2018

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Among the possible reasons a project might cost more to build than anticipated is diminished labor productivity occasioned by unforeseen space or time constraints.  If the available space for construction gets compressed, workers who are confined by a tighter site or other physical obstacles they didn’t count on, or whose anticipated lay-down or staging areas are shifted to a more distant off-site location, will become less productive.  If the available time for construction gets compressed, work could be pushed into winter conditions when labor is notoriously less efficient, or acceleration could be required with its attendant overtime expenses and consequent fatigue factors making a man-hour less productive.

Sometimes this unanticipated time/space compression is the owner’s fault, in which case the general contractor/construction manager and its subcontractors will likely be entitled to increased compensation by change order or otherwise -- and to a mechanic’s lien if that increase is not paid.  Sometimes unanticipated compression is the result of acts of God or of third parties, in which case it is crucial to examine the contract or subcontract to see who has agreed to bear this risk. (Contractual silence on the point usually spells bad news for the party providing the labor. See Town of Bedford v. Brooks, 121 N.H. 262, 266 (1981) (“One who by contract or agreement binds himself to an obligation possible to perform must perform it, and he will not be excused from performance because of unforeseen difficulties.”)).

What if the unanticipated compression is due to poor planning or coordination by the general contractor or construction manager, affecting not only its own bottom line but its subcontractors’ as well?  It is difficult to see why the owner should pay extra in such a case or suffer a lien from a subcontractor even if that sub is legitimately owed extra compensation from the GC or CM who caused the inefficiencies.  But a recent case suggests that such a lien may be granted if the owner has a cost-plus or “time and materials” arrangement.

In Fraser Engineering Company, Inc. v. IPS-Integrated Project Services, LLC, 2018 WL 1525725 (D.N.H. March 27, 2018), a subcontractor on a project at the Pease International Tradeport obtained a mechanic’s lien for almost $5 million, two-thirds of which was for labor inefficiencies after being ordered by the construction manager to accelerate and work overtime.  The owner argued that it didn’t owe nearly that much to its construction manager and therefore was entitled to invoke the cap on mechanic’s liens described in RSA 447:6, limiting subcontractor liens to “the amount then due or that may become due to the contractor . . .”  Because the owner’s cost-plus contract obliged it to pay its CM for “the cost of trade labor including the indirect costs, overhead and profit for all [s]ubcontractors and equipment necessary for construction,” the Court concluded that the owner could well end up owing its CM the entire amount of the subcontractor’s labor inefficiency claim, and let stand the lien amount which included that sum.

But how is that sum calculated?  In Fraser, the subcontractor’s arrangement with the CM was fixed price rather than cost-plus except as to change orders and extras.  Its $3,324,083.30 “labor inefficiency” number included not only its direct overtime wage expense, but also an uptick for the inefficiency of those manhours due to the fatigue, loss of morale, absenteeism and similar effects of a workforce that was working ten hours a day, seven days a week.  The subcontractor relied on studies estimating such productivity losses -- “Overtime and Productivity in Electrical Construction” published by the National Electrical Contractors Association being a chief one -- but even that study acknowledged that “Obviously, these overtime cost calculations are unnecessary for labor-plus-material type contract situations.”  Why simply paying agreed-upon overtime rates for each overtime hour would not fully compensate the subcontractor for all labor inefficiencies is unclear.  (And because the case is now in arbitration, it will likely stay that way.)

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#65:  Unjust Enrichment Recovery for Verbal Change Orders

3/24/2018

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Given the importance of nailing down any changes to an original scope of work along with their price and schedule effects, many construction contracts require change orders to be in writing, and even define change orders as written instruments.  Section 7.2.1 of the A201 (2007) is typical: “A Change Order is a written instrument prepared by the Architect and signed by the Owner, Contractor and Architect.”  Some contracts are even more limiting, expressly stating that if extra work is done without a signed change order, no additional compensation can be claimed.
 
What if an owner orders a change but never prepares the written change order?  What if the contractor prepares a change order himself but the owner ignores it?  Should he suspend work, and risk being in breach?  There may be another option.  If he proceeds with the work on the reasonable expectation of getting a change order signed later and doesn’t get it, he still has a shot at “unjust enrichment” recovery -- a remedy allowed by courts when an individual receives “a benefit which would be unconscionable for him to retain,” Clapp v. Goffstown Sch. Dist., 159 N.H. 206, 210 (2009).  
 
Unjust enrichment recovery “may be available to contracting parties if the benefit received is outside the scope of the contract,” Axenics, Inc. v. Turner Construction Co., 164 N.H. 659, 670 (2013), but not if the parties’ contract addresses the subject matter of the claim.  In Axenics a subcontractor’s claim against a general contractor for “failure to properly coordinate construction” was rejected because the GC’s coordination responsibility and the sub’s entitlement to payment for any resulting extra work or extra costs “was addressed in the subcontract itself.”  The Court explained that “the terms of the subcontract expressly addressed the possibility of delays and hindrances as well as the process by which Axenics would receive payment for any extra work that it performed because of change orders.  The subcontract also established a mechanism for proceeding when Axenics believed the ‘work to be beyond the scope of’ the subcontract, and delineated Turner’s responsibilities for coordinating changes to the work.  Since the subcontract governed the subject of Axenics’ unjust enrichment claim, and the subcontract was not abandoned by the parties, the trial court erred in allowing Axenics to recover against Turner under a theory of unjust enrichment.”
 
Notice that Axenics did not seek compensation for an added scope of work, but for making an existing scope more expensive to perform.  Added scope sounds like a candidate for unjust enrichment on grounds that “the benefit received was outside the scope of the contract,” id.  But I hesitate to equate a contractual scope of work with “scope of the contract.”  Contractors speak that way.  Judges don’t.  For them, “scope of the contract” is broader, encompassing not only the work to be done but all of the terms and conditions impacting the performance of that work.  
 
Still, any contractual provision can be modified by the parties -- including a provision requiring that change orders be in writing.  “Parties to a contract can not, even by an express provision in that contract, deprive themselves of the power to alter or vary or discharge it by subsequent agreement.  An express provision in a written contract that no rescission or variation shall be valid unless it too is in writing is ineffective to invalidate a subsequent oral agreement to the contrary.”  Prime Financial Group, Inc. v. Masters, 141 N.H. 33, 37 (1996).  Ordering extra work that both parties should reasonably anticipate will entail extra costs, particularly when accompanied by insistence that it be done promptly before a change order is prepared and signed, is evidence from which a court might infer an agreement to modify the requirement that change orders must be signed before extras can get paid.
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#64:  Recovering Attorneys' Fees as Damages

2/25/2018

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Win, lose or draw, the usual rule in litigation is that “absent statutorily or judicially created exceptions, parties pay their own attorney’s fees.”  Shelton v. Tamposi, 164 N.H. 490, 501 (2013).  Judicial exceptions include “bad faith” litigation, for which “an award of attorney’s fees is appropriate where one party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons, where the litigant’s conduct can be characterized as unreasonably obdurate or obstinate, and where it should have been unnecessary for the successful party to have brought the action.”  Bedard v. Town of Alexandria, 159 N.H. 740, 744 (2010) (quotations omitted).
 
In such two-party scenarios, attorneys’ fees are awarded not as damages caused by the defendant’s conduct, but “to do justice and vindicate rights, as well as to discourage frivolous lawsuits.”  Jesurum v. WBTSCC Ltd. Partnership, 169 N.H. 469, 483 (2016) (quotation omitted). But matters are different in three-party scenarios, where A is forced to litigate with B due to the acts or omissions of C.  Legal fees incurred by A in the skirmish with B may be recovered from C as damages, i.e., as the natural and foreseeable consequence of C’s wrongful conduct.
 
Suppose a design professional administering a construction contract advises the owner that a problem with the project is due to a construction defect when, in fact, it is the result of the professional’s own design error.  If the owner sues the contractor for breach of contract and the contractor prevails, the contractor’s defense costs should be recoverable as damages in an action by the contractor against the design professional.  This is sometimes known as the “tort of another” doctrine, after its formulation in RESTATEMENT (SECOND) OF TORTS § 914(2): “One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover . . . attorney fees . . . thereby suffered or incurred in the earlier action.”

The New Hampshire Supreme Court recently had this “tort of another” doctrine on its plate in Halifax-American Energy Co., LLC v. Provider Power, LLC, 170 N.H. 569 (2018), but decided not to dig in.  A Rockingham County Superior Court jury was instructed that it could award damages on this basis, and it did so; but when the defendant appealed on grounds that this was not the law in New Hampshire, the Supreme Court ruled that “the defendants did not argue before the trial court that the court's proposed jury instruction was inconsistent with New Hampshire law. Thus, we decline to consider that argument on appeal.”  The Supreme Court left the jury’s award intact.

The lower court’s jury instructions certainly had some legs; there is precedent in New Hampshire for an award of attorneys’ fees incurred in litigating with a third party.  Hubbard v. Gould, 74 N.H. 25, 28 (1906) (“If it is established that the defendants and not the plaintiff are responsible for the injury to Rogers’ horse, the expenses reasonably incurred in good faith by Hubbard in litigating the questions raised by Rogers’ claim are a part of his damages”); Hildreth v. Bergeron, 110 N.H 197, 199 (1970) ("If the alleged contract was breached he is entitled to all expenses resulting from the breach including attorney's fees both in defending the Gilbert action and prosecuting the suit over against the suppliers.").  This result has been characterized by several implied, non-contractual indemnity cases as a proper item for indemnification.  Morse v. Ford, 118 N.H. 280, 281 (1978) (“Our cases have held that attorney’s fees are proper when an indemnitor is primarily responsible for the injury to the third party”); General Contracting & Trading Co., LLC v. Interpole, Inc., 899 F.2d 109, 113 (1st Cir. 1990) (applying New Hampshire law) (“the indemnitee’s damages may include reasonable counsel fees and costs necessarily expended in defending against the principal claim”).
 
Whether analyzed under implied indemnity principles or labeled the “tort of another” doctrine, recovery of attorneys’ fees as damages does seem to be available in New Hampshire in three-party scenarios.
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#63:  Subcontractor or Supplier: A Potentially Crucial Distinction

12/27/2017

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On most building contracts the contractor is called upon to provide labor, materials and equipment.  He will often hire subcontractors to furnish various portions of the labor and materials, and either he or they will purchase equipment (such as a boiler or a well pump) for installation at the job site.  On high end commercial projects the required equipment can be quite large and specialized (say, a gas turbine for a utility power plant).  Is the seller of that equipment considered a subcontractor, or a mere manufacturer/supplier?
 
The distinction can be important on many levels.  For one thing, the Uniform Commercial Code rather than general contract law governs the sale of goods, and employs different legal rules, including special warranty provisions and a longer statute of limitations.  For another, payment bond rights and mechanic’s lien rights were held unavailable for suppliers to suppliers (as opposed to suppliers to subcontractors) in Lyle Signs, Inc. v. Evroks Corp., 132 N.H. 156 (1989). Third, general contractors will often be expressly liable under their contracts for the mistakes of their subcontractors. If they are obliged to install particular equipment (and even directed as to which manufacturers they may buy that equipment from), characterizing the equipment supplier as a subcontractor can be the owner’s only shot at holding the contractor responsible when the equipment whose characteristics the owner itself has specified proves deficient!
 
The Lyle Signs case offers some rough guidance on when an entity is considered a subcontractor, admonishing that “courts should look, in part, to the following factors: (1) Whether the entity constructs a definite and substantial part of the work or improvement called for in the original contract; (2) whether the work is performed in accordance with plans and specifications of the original contract; and (3) whether the plans and specifications call for a unique product and not a product readily available on the open market. Lastly, we note that the work need not be done at the job site for one to be considered a subcontractor. The above list, however, is not intended to be a comprehensive list of the factors which may be considered by courts. Furthermore, in applying these factors to their determinations, courts should consider the totality of the circumstances surrounding the contractual relationship of the parties.” 
 
The following year In re Trailer & Plumbing Supplies, 133 N.H. 432, 436 (1990), considered two tests for whether a mixed sales and services contract was governed by the UCC.  The first is the “predominant factor” test, which inquires “whether their predominant factor, their thrust, their purpose, reasonably stated, is the rendition of service, with goods incidentally involved (e.g., contract with artist for painting) or is a transaction of sale, with labor incidentally involved (e.g., installation of a water heater in a bathroom).”  The second is the “gravamen of the action” test, which “simply asks whether the underlying action is brought because of alleged defective goods or because of the quality of the service rendered. If the gravamen of the action focuses on goods, then the UCC governs. If the focus is on the quality of the services rendered, then common law applies.”  Ultimately the Court in that case applied the “predominant factor” test – as has virtually every court case since then.
 
Can a manufacturer/supplier who is subject to the UCC under the “predominant factor” test also be a subcontractor under the Lyle Signs factors?  Theoretically, yes; the two tests are not wholly inconsistent.  A 2015 New Hampshire Superior Court case, Hooksett Sewer Commission v. Penta Corporation, ruled a general contractor to be subject to the UCC under the “predominant factor” test when it purchased and installed specified equipment and related items that together comprised two thirds of the cost of the entire contract.  There was no mention of the Lyle Signs factors, nor reason to consider them, but the GC in Hooksett Sewer would have satisfied all three of them.
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