Once again I am moved to blog (see #31, #37, #91) on Commercial General Liability (“CGL”) insurance coverage for defective workmanship. I’ve previously said that at best, only consequential damage to other property, not for repairing or replacing the defective work itself, would be covered. A recent case counsels an update. In general,
NH Construction Law
Blog Authors
Latest from NH Construction Law
#140: Including Overhead and Profit In Mechanic's Lien Amounts
New Hampshire’s mechanic’s lien statute, RSA 447:2, gives a lien to those who “perform labor, provide professional design services, or furnish materials” to improve someone’s real estate. The lien “provides security against the property owner for the value of the labor or materials rendered.” Pine Gravel, Inc. v. Cianchette, 128 N.H. 460, 464 (1986). …
#139: Constitutionality of Federal Set-Asides for Disadvantaged Contractors
In 1983, Congress authorized the Disadvantaged Business Enterprise (“DBE”) program, requiring the U.S. Department of Transportation to ensure that at least 10% of funding for federally-assisted highway and transit projects is set aside for businesses at least 51%-owned and controlled by “socially and economically disadvantaged” individuals. Federal construction contracts worth billions of dollars have gone…
#138: 2024 Legislative Update
This summer has seen a number of state legislative measures that affect the construction industry, both to update codes and to attempt to spark additional housing. It was just a couple of years ago that New Hampshire updated its State Building Code to the 2018 versions of the International Building Code, International Residential Code and other…
#137: Liability for Negligent Selection of Subcontractors
It is well established that general contractors are vicariously liable for damages resulting from the negligence of their employees, but not of their independent contractors except in the case of “inherently dangerous” activities, Arthur v. Holy Rosary Credit Union, 139 N.H. 463 (1995). But a general contractor can be liable for its own negligence in…
#136: Fixed Price vs. “Cost Plus” Contracts: Some Considerations
When contracting parties agree to a fixed price or lump sum amount for a defined scope of work, the contractor is generally obligated to build that scope of work for that price regardless of what it costs him to do so or what unmentioned obstacles he may face. His price will typically be set to…
#135: Unconscionable Arbitration Agreements
“An agreement to arbitrate may be unenforceable if pursuing a claim in arbitration is so cost prohibitive that it prevents a party from vindicating its rights.” With that opening sentence, the Texas Supreme Court in Lennar Homes of Texas, Inc. v. Rafiei, 2024 WL 1470909 (April 5, 2024), recently rendered an opinion worth noting by…
#134: 30-Day Accountings for Subcontractor/Supplier Mechanic’s Liens
It is generally recognized by New Hampshire courts that “[f]ailure to comply with the specific statutory provisions of perfecting a mechanics lien is usually fatal,” Alex Builders & Sons, Inc. v. Danley, 161 N.H. 19, 23 (2010). Yet one of those statutory provisions, RSA 447:8, is in my experience regularly ignored by subcontractors and…
#133: DOL's Latest Independent Contractor Rule
On January 10, 2024, the U.S. Department of Labor issued its new rules on how to properly classify workers as either employees or independent contractors under the Fair Labor Standards Act. The new rules are slated to go into effect on March 11, 2024, and reinstate the so-called “economic realities” test for determining whether a…
#132: Written Change Order Requirements
Many construction contracts and subcontracts, both residential and commercial, provide that any addition or deletion from the scope of work described in the contract must be documented by a written change order. The purpose of these written change order requirements is obvious: to avoid disputes down the road over the existence of, extent of, or…