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It's Always Risk Management Season in the Construction Industry

Blog Post

For the second time in just nine months, the Ohio Supreme Court issued a major decision affecting project-related risk and exposure for members of Ohio’s construction industry. The first of those decisions – Ohio N. Univ. v. Charles Constr. Servs., Inc., 2018-Ohio-4057, issued in October 2018 – expands contractor and subcontractor exposure to uninsured risks and claims by determining that a subcontractor’s faulty workmanship is not a covered “occurrence” under a typical Commercial General Liability (“CGL”) insurance policy.

More recently, however, in New Riegel Local School District v. Buehrer Group Architecture & Engineering, Inc., 2019-Ohio-2851, the Court issued a decision limiting contractor, subcontractor and design professional exposure to stale claims by clarifying that Ohio’s ten-year statute of repose applies not just to tort claims, but contract claims as well.  This decision is significant because a statute of repose, unlike a statute of limitations, is intended to begin to run at an identifiable time or event and bars any claim that is brought after a specified amount of time. In the context of the construction industry, a statute of repose is important because it provides risk managers certainty and predictability concerning the ability – and inability – of project participants to assert stale claims, which may influence other business decisions such as project close-out and document retention practices.

There are many sources of risk in the construction industry: project risk, contractual risk, occupational risk, financial risk, and the list goes on.  By issuing these two major construction law decisions in less than one year’s time, the Ohio Supreme Court reminds all project participants – owners, design professionals, general contractors, subcontractors, sureties and insurers alike – that it is always the right time to revisit your comprehensive risk management strategies.  While not all risk is avoidable, careful planning and the proper use of resources can allow you to transfer or mitigate certain risks in a way that maximize rewards.  

If you have any questions about this, or other matters affecting your business, do not hesitate to contact Justin M. Alaburda or Justin M. Lovdahl of BMD’s Construction Law Group.

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Invitation to Banks & Family Office/Ultra-high Net Worth Investors Exploring Cannabis Lending to Join Our Informal Institutional Cannabis Lenders Community

An update on the latest developments in the cannabis banking/lending space by subject matter expert, BMD Scottsdale/Phoenix Office Managing Partner Stephen Lenn

Community Banks: Collaboration, not isolation, is the key to protecting/ enhancing the cannabis business you pioneered

As we prepare for the plenary session of the informal institutional cannabis lenders community announced in my previous article, I am pleased to advise that participants now include 5 of the best-known dedicated loan funds; a select group of commercial banks ranging in size from single state community banks to mid-size regionals making cannabis loans into the mid-8 figures; and, a syndicator of credit union cannabis loans.

Non-compete Agreements are Under Fire: What Employers Need to Know

Non-compete agreements are an ongoing topic of dispute. Employers and their advocates point to the efficacy of non-competes in protecting proprietary information. Employees and their advocates argue about worker mobility and that employers unduly burden workers’ ability to seek better jobs. The Biden administration has put forth its position, and state legislatures have introduced bills addressing the enforceability of non-competes. Here is what you need to know:

BMD’s Jason Butterworth Quietly Engineers Some of Akron’s Most Impactful Projects

Jason Butterworth, a team member of BMD’s Business & Corporate practice, focuses his practice on finance, real estate, and tax credit law.

Explosive Growth in Pot of Gold Opportunity for Bank (and Other) Cannabis Lenders Driving Erosion of the Barriers

Our original article on bank lending to the cannabis industry anticipated that the convergence of interest between banks and the cannabis industry would draw more and larger banks to the industry. Banks were awash in liquidity with limited deployment options, while bankable cannabis businesses had rapidly growing needs for more and lower cost credit. Since then, the pot of gold opportunity for banks to lend into the cannabis industry has grown exponentially due to a combination of market constraints on equity causing a dramatic shift to debt and the ever-increasing capital needs of one of the country’s fastest growing industries. At the same time, hurdles to entry of new banks are being systematically cleared as the yellow brick road to the cannabis industry’s access to the financial markets is being paved, brick by brick, by the progressively increasing number and size of banks that are now entering the market.