WAYLAND MICHIGAN CONSTRUCTION EXPERT WITNESS
DIRECTORY AND CAPABILITIES

Labor Shortages In Construction

December 04, 2023 — Jason Feld & Chris Bates - Kahana Feld
Similar to other industries, the ongoing labor shortage crisis in the United States is detrimentally impacting construction activities in both the residential and commercial sector. According to the Bureau of Labor Statistics, the turnover rate for the construction industry since 2021 has risen to 56%. And while the national unemployment rate ranges between 0.4% to 7.5%, the unemployment rate for construction is roughly four times the national average (See, Associated Builders and Contractors, Markenstein Advisors Report dated July 28, 2023). 73% of workers preferred to stay in a remote work environment, and another 40% of the global workforce has elected to voluntarily remove themselves from the workplace. (See, 2021 Microsoft Work Index). In particular with the construction industry, employment rates have returned to pre-pandemic levels hovering around 12% unemployment in 2020 to 6% in 2022. (See, Joint Center for Housing Studies at Harvard University, Carlos Martin). So where did all the workers go? During the height of the 2020 Covid-19 Pandemic and for the next few years, the county experienced what most people are calling “The Great Resignation”. May people took jobs with better pay and better alignment with their values. Approximately 40% stated a new business. Many elected to become stay-at-home parents forgoing a paycheck to raise their families while the other spouse works, especially due to the rising costs of childcare. About 1 in every 4 baby-boomers retired. Others took part-time employment, entered military service or left the workforce due to disability or injury. (See, Bloomberg Businessweek). Reprinted courtesy of Jason Feld, Kahana Feld and Chris Bates, Kahana Feld Mr. Feld may be contacted at jfeld@kahanafeld.com Mr. Bates may be contacted at cbates@kahanafeld.com Read the full story...

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When OSHA Cites You

April 22, 2024 — Michael Metz-Topodas - Construction Executive
With the strong bonds that form among construction project teams, workers looking out for each other helps keep safety foremost in everyone’s mind. But sometimes, even the very best intentions alone can’t prevent an occasional misstep—a forgotten hard hat, a sagging rope line—which can and often does result in an OSHA citation. These regulatory reminders can bring unfortunate consequences: penalties, higher insurance premiums, potential worker injury claims, loss of bidding eligibility, loss of reputation and even public embarrassment, because citations are published on OSHA’s website. Due to citations’ adverse effects, contractors have incentives to minimize them. They can do this by asserting available defenses, because a citation is only an alleged violation, not a confirmed one. But making defenses available begins well before a citation is issued, well before OSHA arrives to a construction site and well before a violation even occurs. Instead, contractors’ ongoing safety programs should incorporate the necessary measures to preserve OSHA citation defenses in three key areas: lack of employee exposure, lack of employer knowledge and impossibility. EMPLOYEE EXPOSURE To sustain a citation against an employer, OSHA must not only identify an applicable standard that the company violated but also show that the violation exposed employees to hazards and risk of injury. Absent evidence of actual exposure, OSHA often makes this showing by asserting that performing job functions necessarily exposes employees to the cited hazard. Reprinted courtesy of Michael Metz-Topodas, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the full story...
Mr. Metz-Topodas may be contacted at michael.metz-topodas@saul.com

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Top Developments March 2024

April 22, 2024 — Complex Insurance Coverage Reporter
CLAIMS-MADE COVERAGE Zurich Am. Ins. Co. v. Syngenta Crop Prot. LLC, 2024 Del. LEXIS 68 (Del. Feb. 26, 2024) Delaware Supreme Court concludes that a letter from a lawyer informing an insured of possible lawsuits without identifying potential plaintiffs or demanding payment is not a “claim for damages” within the meaning of claims-made CGL and umbrella liability policies. Citing case law from Delaware and other jurisdictions, it reasoned that, in the ordinary sense, a “claim for damages” (which the policies did not define) is “a demand or request for monetary relief by or on behalf of an identifiable claimant.” According to the court, the letter in question did not meet this definition because it did not identify any claimants “except in the vaguest terms” or request monetary relief on any claimant’s behalf, but rather communicated only a threat of future litigation. As a result, the letter was not a claim made before the policy periods at issue. POLLUTION EXCLUSION Wesco Ins. Co. v. Brad Ingram Constr., 2024 U.S. App. LEXIS 1488 (9th Cir. Jan. 23, 2024) A divided Ninth Circuit panel, applying California law, holds that a pollution exclusion* in a CGL policy does not preclude a duty to defend an underlying suit alleging physical injury from exposure to “clouds of toxic dust” deposited in the environment by a wildfire and released during clean up efforts. Citing MacKinnon v. Truck Ins. Exch., 73 P.3d 1205 (Cal. 2003), the majority explained that determining whether a “pollution event” (i.e., “environmental pollution”) resulting in excluded injury has occurred involves consideration of “the character of the injurious substance” and whether the exposure resulted from a “mechanism specified in the policy.” It concluded that a potential for coverage (and, therefore, a defense obligation) existed because, although wildfire debris may be considered a “pollutant” in certain circumstances, the mechanism alleged in the underlying complaint – “expos[ure] . . . to clouds of toxic dust during the loading and unloading of [the underlying plaintiff’s] truck” – did not clearly constitute an “event commonly thought of as pollution.” Read the full story...
Reprinted courtesy of White and Williams LLP

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New York Court Grants Insured's Motion to Dismiss Construction Defect Case and Awards Fees to Insured

February 05, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The New York Supreme Court granted the insured's motion to dismiss the insurer's complaint seeking relief on its duty to indemnity and awarded fees to the insured. Utica Mut. Ins. Co. v. Crystal Curtain Wall Sys. Corp., 2023 N.Y. Misc. LEXIS 22368 (N.Y. Sup. Ct. Nov. 27, 2023). The case arose from a construction-related property damage action. Crystal entered a subcontract with the general contractor to design and install window and curtain systems in mixed residential and commercial buildings. When unit owners took possession, water infiltration during a rainstorm caused property damage and moldy conditions. The unit owners sued asserting claims against Crystal for the cost of repair or replacement of the allegedly defective curtain wall, damage to unit owners' personal property, diminution in value of the units, and delay damages consisting of increasing interest and carrying costs. Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Unpunished Racist Taunts: A Pennsylvania Harassment Case With No True 'Winner'

December 04, 2023 — Richard Korman - Engineering News-Record
The taunts started in the first days of Andre Pryce’s new job, camouflaged as joking. During the nine months of 2019 spent working as a drill rig hand, mostly in the woods in western Pennsylvania, for a contractor that also performs much construction-related drilling, he said coworkers filled his ears with racist insults. Reprinted courtesy of Richard Korman, Engineering News-Record Mr. Korman may be contacted at kormanr@enr.com Read the full story...

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It Pays to Review the ‘Review the Contract Documents’ Clause Before You Sign the Contract

March 11, 2024 — Alan Winkler - ConsensusDocs
It is fairly common for a construction contract to include a provision requiring the contractor to perform some level of review of the plans and specifications and perhaps other contract documents as part of their responsibilities. Typically, this provision is found in a section of the contract on the contractor’s responsibilities, although it can be anywhere. Owners and contractors are, with reason, focused on three main issues in reviewing contracts: (1) price, costs, and payments, (2) time and scheduling, and (3) scope of the work. Eyes may glaze over the contractor’s responsibilities section. Not only does it seem to be boilerplate, but industry professionals know what a contractor is supposed to do; in a nutshell, build the project. An old school type of contractor may regard this role as strictly following the plans and specifications, no matter what they provide. That could lead to a situation where construction comes to a complete stop because, for example, two elements are totally incompatible with each other. If that happens, the contractor would then turn to the owner and architect to ask for a corrective plan and instructions on how to proceed. That may also be accompanied by a request for more time and money while the problem is resolved. The ‘review the contract documents’ clause is designed to avoid this. It is intended to address an understanding that everyone makes mistakes, even architects and engineers whose job it is to design a buildable, functional project. The clause also addresses the understanding that a contractor is more than a rote implementer of plans and specifications because its expertise in building necessarily means the contractor has expertise in understanding the documents that define the construction and how things are put together. Read the full story...
Reprinted courtesy of Alan Winkler, Peckar & Abramson, P.C.
Mr. Winkler may be contacted at awinkler@pecklaw.com

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Appraisal Goes Forward Even Though Insurer Has Yet to Determine Coverage on Additional Claims

December 11, 2023 — Tred R. Eyerly - Insurance Law Hawaii
The trial court's order granting the insured's motion to stay litigation and compel an appraisal was affirmed even though the insurer had not determined coverage on the insured's additional claims.Heritage Prop. & Cas. Ins. Co. v. Wellington Place HOA, 2023 Fla. App. LEXIS 6405 (Fla. Ct. App. Sept. 13, 2023). The insured homeowner's association reported roof damage to its insurer, Heritage, after Hurrican Irma struck. Heritage agreed the damage was covered, but issued no payment because the amount of loss was less than the deductible. The insured hired its own adjuster. The insured requested an extension of the policy's two year time limit to complete repairs because the claim was still in dispute and the insurer had not yet paid sufficient funds to allow necessary repairs. Heritage sent a revised estimate and asked the insured to send its adjuster's estimate in order to address any disputes. The insured submitted its adjuster's estimate of more than $6 million, including, for the first time, the cost to replace all the windows and sliding glass doors. Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Recent Developments in Legislative Efforts To Combat Climate Change

October 30, 2023 — Dominick Weinkam & Robert B. Cimmino - ConsensusDocs
Governments across the United States have been increasingly integrating climate considerations into legislation affecting various sectors of the economy. The construction industry is no exception. Recent legislative developments at various levels of government are reshaping construction practices to mitigate the industries’ greenhouse gas emissions and vulnerability to climate-related risks. These developments include incentivizing eco-friendly construction projects, mandating stricter regulations to reduce carbon emissions, and enhancing building resilience to more severe weather events. Contractors must stay abreast of these developments to ensure compliance with new substantive and administrative requirements to remain competitive in a changing environment. Funding Greener Construction Projects: The Inflation Reduction Act The federal Inflation Reduction Act (IRA) enacted in August 2022 marked a significant milestone in the pursuit of greener construction. The IRA is widely considered to be the single largest investment into climate change in history, with potential ripple effects throughout the construction industry. The IRA allocates substantial funds for projects utilizing “low-carbon” materials, with an explicit focus on climate-conscious construction. This initiative aligns with the broader goal of curbing emissions from sectors like steel, concrete, and glass, which have been major contributors to the nation’s carbon footprint. Reprinted courtesy of Dominick Weinkam, Watt Tieder and Robert B. Cimmino, Watt Tieder Mr. Weinkam may be contacted at dweinkam@watttieder.com Mr. Cimmino may be contacted at rcimmino@watttieder.com Read the full story...

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