Construction Blog | Construction & Public Contract Law Section

This blog discusses information on issues important to attorneys engaged in construction or public contracting law. Topics include changes in the statutes, appellate and Supreme Court decisions, insurance law, practice tips and pointers, procedural issues, evidentiary issues, and jury trials. Published by the State Bar of Wisconsin's Construction & Public Contract Law Section.

This section encourages communication among attorneys with interests in construction and public contract law. The section also monitors and proposes legislation and sponsors CLE programs at State Bar conventions. As a special project, the section drafted the State Bar Construction Lien Forms.

Members of the State Bar of Wisconsin may join the section by visiting https://www.wisbar.org/formembers/groups/pages/join-a-group.aspx (login required).

Section website: https://www.wisbar.org/formembers/groups/sections/ConstructionandPublicContractLawSection/pages/home.aspx

Small-scale residential construction projects, such as single-family home builds, additions, and remodels, pose unique challenges for Wisconsin attorneys who draft construction contracts. Wisconsin law protects Wisconsin homeowners from being taken advantage of by contractors, by imposing special requirements on contractors who perform residential home improvement work. Contractors can comply with most of Wisconsin’s technical obligations by drafting robust contracts. In addition, residential construction projects involve different issues and complications than those that arise on larger commercial construction projects. On residential jobs, Wisconsin construction attorneys need to consider not only Wisconsin’s technical legal requirements, but also the unique nature of each…
In Part 1, we discussed copyright basics and architectural plans as one asset that could be protected by copyright. See Construction and Copyright, Part 1: Don’t Forget about IP. Here in Part 2, we discuss additional practical copyright considerations, including that designs and architectural works aren’t the only copyrightable material to come out of the construction process. Photos and Videos Many construction companies want to promote their business using “before and after” or progress photographs of their work. If the construction company hires a third-party photographer or videographer to photo-document the construction site, absent an understanding to the contrary,…
Construction projects, by their very nature, operate in the world of tangible property.Quite obviously, tradespersons use machinery and tools to fit building materials together to construct physical buildings. With material goods acting as both the figurative and literal foundation of the industry, construction companies, and by extension, their construction contracts, could easily focus solely on the tangible elements of each project. Bryan T. Kroes, Marquette 2013, is a senior associate with Hurtado Zimmerman SC, Wauwautosa, where he practices in construction, real estate, municipal bond finance, and entertainment law. While tangible property is absolutely essential for a successful construction…
Indemnity clauses are common in commercial contracts. Typically, one party (the indemnitor) agrees to “indemnify, defend, and hold harmless” another party (the indemnitee) from any and all claims or losses, or perhaps certain defined ones. In the construction context, such a provision may, for example, provide indemnity protection to an owner for any claims, losses, or damages – including attorneys’ fees – arising out of a contractor’s work.1 At its base level, such language protects owners from exposure arising from a construction project. But is the value solely in its protection? The lawyer answer is – it depends! Generally,…
In Loren Imhoff Homebuilder, Inc. v. Taylor and Cuevas,1 the Dist. IV Court of Appeals reversed the circuit court’s vacatur of an arbitration award, based on the circuit court’s conclusion that the arbitrator fell asleep at some point or points during the evidentiary hearing and that, as a result, he “so imperfectly executed his powers that a mutual, final and definite award upon the subject matter submitted was not made.” The appeals court concluded that the homeowner seeking vacatur of the award forfeited the claim, because it failed to ask the arbitrator to resolve any problems by the alleged…
The basic purpose of the contracting process is to allocate risks among the various parties. Many risks are easy to identify and evaluate. For example, a contractor can evaluate the risk of labor cost changes or material prices. Similarly, the owner can evaluate and cover the risk of a contractor’s default by requiring a payment and performance bond. In contrast to quantifiable risks, the risks presented by unknown conditions (such as subsurface conditions) are difficult to identify and evaluate. Also, the costs to address unknown or unexpected conditions (differing site conditions or DSC) can be very substantial. When Contracts Don’t…
This past summer, the Wisconsin Court of Appeals issued an unpublished opinion in Coolidge A L.L.C. v. City of Waukesha,1 a case involving claims of negligence against both the City of Waukesha (City) and a contractor working for it, D.F. Tomasini Contractors (Tomasini). The Court of Appeals determined that the City was shielded from the negligence claim by governmental immunity, and that Tomasini, as an agent of the City, also was shielded. The court’s decision reminds construction attorneys, and particularly those who handle injury claims for their insurance carriers, that clients working for municipal entities are often provided a…
Wis. Stat. section 895.447 has existed in its current form since passage in 1977, without having been subjected to serious judicial scrutiny. The Wisconsin Supreme Court’s recent decision in Rural Mutual Ins. Co. v. Lester Buildings, LLC,1 provides some clarity as to the statute’s intended effect, but also calls into question the enforceability of other common risk transfer and limitation clauses in construction contracts – namely, limitation of liability clauses, waiver of consequential damages clauses, and additional insured requirements.2 History Wis. Stat. section 895.49,3 the precursor to today’s section 895.447, was first introduced in 1977, and appears to…
The construction lien law is one of the most powerful payment collection tools available to construction contractors. Yet, while most contractors know it exists, very few know enough about it to use it effectively. All too often, that lack of knowledge results in an unfortunate and unintended loss of valuable legal rights when too much time passes without exercising them. On troubled projects, a construction lien could make the difference between a contractor getting paid and not getting paid. With the ongoing economic impact of the COVID-19 pandemic, construction contractors need to be more vigilant regarding their lien rights, and…
On April 22, 2020, the Court of Appeals District II issued an opinion in the case of Mechanical Inc. v. Venture Electrical Contractors, Inc.1 This case, commenced in 2015, involved one subcontractor suing another for negligence, and is the latest in the line of Wisconsin cases extending the economic loss doctrine into the field of construction law. (The authors were attorneys for Mechanical Inc. throughout these proceedings.) Background The facts of this dispute are important to a complete understanding of how the Court’s holding will impact Wisconsin contractors. Mechanical, Inc., (Mechanical) was the HVAC subcontractor to J.P. Cullen &…
The Wisconsin Supreme Court’s recent decision in Hinrichs v. Dow Chemical Company1 highlights extra-contractual liability for common law misrepresentation and statutory misrepresentation in violation of Wis. Stat. section 100.18, which may be pursued against construction parties. Hinrichs v. Dow Chemical Company Plaintiff Chris Hinrichs and his company Autovation, Ltd. (Hinrichs) develops, manufactures, and installs a product called “JeeTops,” an after-market acrylic skylight panel which can be installed on Jeep Wranglers with a certain type of hardtop. Installation of JeeTop involves application of an adhesive manufactured by Dow Chemical Company (Dow), which had the function of attaching the JeeTop panel…
When I elected to cover this topic in early March 2020, few anticipated the breadth and scope of the crisis facing the construction industry. So, I hope I can be forgiven if anything that follows is no longer relevant or topical. But, here we go. What started as an overseas health crisis has quickly escalated into a global pandemic. Local, state, and national responses are widespread, total, and indefinite, leaving construction contractors and the business community at large analyzing the next right move and the long-term consequences. In the following best practices and analyses, perhaps some value can be gleaned,…
It is March 20, 2020, and there is much ado in the news about the coronavirus outbreak that is spreading worldwide. The volume of material on this topic already is staggering. We’ve read a lot of it so you don’t have to. Looking at the here and now is essential, but it is also important not to be myopic – and to use some of our time to plan for when we come out the other end … and we will come out the other end. Very little of what we have seen addresses this topic. If we had a…
3D printing is sometimes referred to as additive manufacturing, because of the ability to create three-dimensional solid objects by layering materials on top of one another. While 3D printing was once futuristic technology, it is now commonplace throughout a variety of industries. Because 3D printers can print any shape that can be imagined, the applications are almost limitless. Many toys, models, and knick-knacks can be simply designed and quickly mass produced.1 The automotive industry has started using 3D printing for certain vehicle parts and even entire cars, starting with “Strati,” the first 3D printed electric car printed…
Encountering environmental issues during a construction project can lead to costly delays for your clients, whether the clients are contractors who might have to suspend work on the project while awaiting a solution or owners who need a project to be completed by a certain date. Furthermore, environmental issues may require additional costs for the client, including site remediation or cleanup, environmental consultant fees, contaminant disposal fees, monetary penalties for violations, and litigation expenses. Reviewing and understanding environmental requirements before a construction project begins will help identify potential issues in advance. However, no matter how thorough environmental due diligence is…
Gov. Tony Evers’ first state budget proposal included many of his campaign promises, some of which were construction-related initiatives, namely: an overall spending increase of over 8%; a 10-cent gas tax increase with an automatic inflationary increase; and the rollback of labor reforms enacted during the Walker Administration. Republicans, who control both houses of the Legislature, made significant changes to Evers’s original proposal. On June 26, the Senate narrowly approved its version of the state budget on a 17-16 vote, with all Democrats and several Republicans voting against. Construction-related changes that the Legislature made to Evers’s original proposal included:1