Shields Mott Blog

The General Agreement Of Indemnity Collateral Security Provision: If You Try Sometimes, You Might Find, You Get What You Need

Surety bonds are a primary, if not mandatory, component of every-day construction projects.  While commercial insurers on a construction project expect losses and adjust insurance rates to cover such losses depending on many factors, sureties do not expect to pay out-of-pocket for bond losses and, instead, require principals and indemnitors to exonerate, indemnify, and often defend sureties in the event of a loss or anticipated loss.  As such, a general agreement of indemnity in favor of the surety usually goes hand-in-hand with the issuance of construction surety bonds.   [Read More…]

How to Seek Interest and Attorneys’ Fees Against Slow-Paying Public Entities

Effective August 2018, the Louisiana Legislature amended the “Prompt Pay” statute in the Public Works Act, allowing contractors to compel public entities to pay progressive stage payments and final payments via mandamus proceeding, including interest and attorneys’ fees. When a public entity fails to timely pay a contractor and certain deadlines lapse, a contractor can file proceedings to force the public entity to pay, collect interest of up to 15% of the outstanding payment application, and potentially reasonable attorney’s fees. Public entities have become aware of these changes and are responding quickly because of the onerous interest charges.   [Read More…]

ESI: The Odyssey — Part 2: A Brief Meditation on Metadata

Metadata generally refers to the data surrounding the creation and use of a document, such as file name, format, location, dates and permissions. In other words, it encompasses the identifying characteristics of a file that are not evident just by looking at the file itself. For example, every time you create, open or save a Microsoft Word document, hidden information is automatically created and stored in that document. In addition to the data that is automatically added, there is other metadata that is user-introduced, such as hidden text, track changes, embedded objects, and so on.  Of course, metadata does not only reside in Microsoft Word documents. [Read More…]

ESI: The Odyssey — Part 1: Know Your Hash Value

The very nature of electronic evidence poses numerous, unique challenges to the discovery process and the admission of electronic evidence. ESI, like any information, is discoverable in litigation, but one of the things that makes ESI different is its sheer volume. The vast majority of newly produced information is created and stored electronically. When you combine this with the relative affordability of cloud storage, a staggering number of electronic documents are being created and stored, even by small business clients. Thus, discovery in litigation, even in cases in which the amount of controversy is relatively modest, can embrace huge quantities of data. [Read More…]

Material Suppliers – – Maybe the 75-day notice is not required?

On August 6, 2018 the Louisiana First Circuit Court of Appeal held that a materialman who failed to provide notice per La. R.S. 38:2242(F) could still pursue a claim against the general contractor and the surety on the payment bond on a public works project pursuant to La. R.S. 38:2247.  In doing so, the First Circuit has arguably recognized that the 75-day notice set forth in La. R.S. 38:2242(F) is no longer required in order for a materialman to assert a claim against a public works payment bond under the Louisiana Public Works Act. [Read More…]

School Board Must Pay Retainage Regardless Of Liquidated Damages Claim. And, Soon Public Entities May Have to Pay Interest On The Retainage Too!

Louisiana Fourth Circuit Court of Appeals (“Court”) held that a public entity, the Orleans Parish School Board (“School Board”), had to promptly make the final payment of retainage to a Public Works contractor, Woodrow Wilson Construction, LLC (“Woodrow”), despite the fact that the School Board claimed it had a right to withhold liquidated damages from Woodrow per their contract (“Contract”). [Read More…]