Eleven-mile mountain road jobs don’t come along every day for highway construction firms. This one would be worth millions of dollars to the winning bidder, Colorado Springs-based Schmidt Construction.
The project was completed on time and on budget in 2001, but within a few weeks the county officials who awarded the contract called, accusing the company of causing multiple roadway cave-ins.
But since when did applying asphalt cause roads to collapse?
Nonetheless, the county filed a suit.
Enter Murray Weiner, veteran Colorado Springs commercial and construction attorney with Mulliken Weiner Karsh Berg and Jolivet.
Since joining the firm in 1991, Weiner has carved out a niche as one of the leading litigators in Colorado in the commercial and residential construction sectors.
Weiner’s not just another lawyer. He was one of Colorado’s “Super Lawyers” by 5280 Magazine for four consecutive years starting in 2006.
A University of Colorado School of Law graduate, Weiner has tried cases at the state and federal level.
He served as the 2005-06 president of the El Paso County Bar Association, on the state Bar Association’s Board of Governors and on the board of Community Partnership for Child Development.
Weiner, as you might imagine, has plenty of fans in the construction world.
“He’s been around for years and knows construction. He’s outstanding,” Murphy Constructors President Chuck Murphy said, adding that Weiner’s known for his aggressive style and intense preparation.
The Schmidt case was just one of hundreds that Weiner has defended in his career.
The accusation against Schmidt: that it was responsible for the 11-mile road’s “alligatoring” — construction language for roadway cracks, settling and multiple collapsed sections or potholes.
When Weiner took the case, he knew he had to convince an arbitration panel that his client had not only performed its work to the client’s specifications, but had to demonstrate the county was liable for poorly installed road base materials.
He won both arguments, as well as payment for his client’s attorney’s fees.
“It’s always scary when you go to trial and there were millions of dollars of liability at stake. But we got a zero judgment because it wasn’t my client’s fault. They were just following specifications provided, based on a (civil) engineer’s report,” he said, adding that ultimately the arbitrator determined that blame for the problem — poorly installed road base — fell on the county.
Schmidt’s Leonard Miller said Weiner had to tackle both technical and legal issues in his fight.
“He took great effort to learn our business — and was very well-prepared to counter every claim they (the county) made,” he said.
But even winning that legal decision came with a price.
“It took until last year to get more work with that same county,” Miller said.
In a climate in which everyone’s hungry for work, Weiner expects to see plenty of contract disputes in the years to come, especially in cases where bids have been too low.
As a result of the tight credit market and large number of bankruptcies in the construction industry in the past couple of years, he expects general contractors, their subcontractors and even lenders will do a lot more homework before entering into agreements.
“Construction law is all about the allocation of risk — and subsequent obligations,” he said, pointing to the troubled U.S. Olympic Committee headquarters construction project and to the 150-acre Colorado Crossing development. In both cases developers defaulted on their financial obligations or filed bankruptcy.
“An owner’s first obligation is to pay the people who did the work — the general contractor or subcontractors and suppliers — and then the lender,” Weiner said.
And when they don’t, Weiner finds himself in battle.
More of today’s contract disputes, he said, seem to focus on smaller amounts of money — far less than during the economic boom years.
“Back then times were good,” he said. “Everyone was moving rapidly. There were disputes — much larger than you see today — but they were usually resolved quickly without going to court because there was so much volume. Now look around. Where are all the cranes? You just don’t see them.”
He is most concerned for his long-time clients who are now facing some of the toughest economic circumstances of their lives. He knows those caught in the aftermath of the September 2007 Lehman Bros. failure are making a valiant effort to stay current with their contractors and subcontractors, but some won’t make it.
“If you’re a developer who got a loan for a subdivision a few years ago, you’re probably facing — or trying to avoid — default. You probably haven’t sold any lots, and if you’d already begun work, you’ve probably had mechanic’s liens filed by your subcontractors and suppliers,” he said
The same pressure is on lenders, now forced by regulators to sue developers or builders for promissory notes now in default.
“The problem is, until the economy recovers, there’s nothing a lot of my clients can do about it.”
Weiner’s hoping for better days for those folks.
“There’s something about these people I like,” he said. “They’re hard-working, very sophisticated in the way they approach business — and they pay their bills. It’s only recently that some have had had problems, they’re waiting for better times. These days, a lot of builders are just trying to hang on, to survive.”