In the recent case of Brock v. Pilot Corporation, a mechanic’s lien claimant tried to find a way around the fact that he failed to comply with the mechanic’s lien statute, KRS 376.010, because he failed to give notice of the intent to file a mechanic’s lien to the owner within120 days of the his last labor on the project. The trial court granted summary judgment for the owner. The Kentucky Court of Appeals affirmed.The claimant, a subcontractor, argued that the general contractor was the “agent” of the owner and because he had been “in touch” with the general contractor, this satisfied the notice provision of the statute. The Court of Appeals would have none of it. They made note that the statutory language was clear and unambiguous.

The Court also affirmed the lower courts ruling on the subcontractor’s claim of unjust enrichment. The owner was able to demonstrate at the trial court level that the owner had paid the general contractor the entire contract price.

Sometimes you have to pay in order to get paid, if you are an injury victim on the land of another. And I mean this very literally.

If you don’t believe me, check out this recent case (link here): A woman injured herself when she fell into a storm drain in a grass parking lot owned by the Berea Independent School District. She was attending a free fireworks display, and paid no charge to park her vehicle in the school’s parking lot. She alleged negligence against several parties, including the school district. Her claim was dismissed, thanks to
Kentucky’s “recreational immunity” statute.In part, KRS 411.190 (click here for full text of statute) gives civil immunity to negligent landowners who invite the general public onto their property for “recreational” purposes, and do not charge any money for such admission. The statute does not excuse willful or malicious failures to warn against dangerous conditions, but makes clear that ordinary negligence will not give rise to a cause of action.

The case rejected the plaintiff’s attempted distinction between parking her vehicle (non-recreational) and watching the fireworks (recreational). The court determined that as long as the plaintiff’s presence was for “recreational” purposes, and she was not charged any money, her case should be dismissed.

As of June 26, 2007, Kentucky has become a leader, rather than a follower, in construction contracts. Kudos to the Fayette County Bar Association newsletter for refreshing my memory on this.

House Bill 490 contains numerous new provisions dealing with construction contracts, subcontracts, mechanic’s liens, mandatory arbitration clauses, and so on. It is entirely too comprehensive to analyze in one single blog entry. I spent nearly two hours trying to understand what the new “retainage” laws said, and I’m not entirely sure that I was successful.

In twenty-five words or less, HB 490 tries to achieve the following: fairness between contracting parties in construction-related matters, and maintaining a regular flow of money from the project owner to all other parties involved. (If you were counting, that was 24 words. )Click here for a link to the law, as it currently reads (the bill has been incorporated into several different statutes). Check your contracts to make sure they comply, and if you’re not sure, our attorneys would be happy to advise you.