When OSHA Cites You
April 22, 2024 —
Michael Metz-Topodas - Construction ExecutiveWith 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
Toronto Skyscraper With $1.2 Billion of Debt Has Been Put in Receivership
November 16, 2023 —
Ari Altstedter - BloombergA landmark condominium project in one of Toronto’s ritziest neighborhoods has been put into receivership after construction delays and cost overruns.
Construction of the 85-story tower will be taken over by a court-appointed receiver after its owners, developer Sam Mizrahi and investor Jenny Coco, defaulted on part of the project’s nearly C$1.7 billion in debt ($1.2 billion), according to a Wednesday order from the Ontario Superior Court of Justice.
Two funds run by South Korea-based IGIS Asset Management Co. applied for the receivership. Another IGIS fund will extend at least another C$315 million to continue work on the project, court documents said.
Read the full story...Reprinted courtesy of
Ari Altstedter, Bloomberg
Public Contract Code Section 1104 Does Not Apply to Claims of Implied Breach of Warranty of Correctness of Plans and Specifications
October 30, 2023 —
Garret Murai - California Construction Law BlogIt’s the classic tale of two cities. One city is occupied by architects and engineers. The other, by contractors. And while the cities typically co-exist relatively peacefully together, at times, they do not, such as when a defect arises that can either be a design or construction defect.
Sometimes, project owners are pulled into these fights as well. There is a common law rule that when contracting with a contractor the owner impliedly warrants to the contractor that the plans and specifications are sufficiently accurate and correct.
And, if you work on local public works projects, you may be familiar with Public Contract Code section 1104 which provides that, with the exception of design-build projects, local public entities cannot require a bidder to assume responsibility for the completeness and accuracy of architectural or engineer
Partner Jason Taylor and Senior Associate Danielle Kegley Successful in Appeal of Summary Disposition on Priority of Coverage Dispute in the Michigan Court of Appeals
December 11, 2023 —
Jason Taylor & Danielle K. Kegley - Traub LiebermanIn this appeal brought before the Michigan Court of Appeals, the appellate court ruled in favor of Traub Lieberman’s insurance carrier client (the “Carrier” or “Client”), affirming an award of summary disposition in favor
Protect Projects From Higher Repair Costs and Property Damage
March 04, 2024 —
Michael Teng - Construction ExecutiveEvery aspect of a jobsite costs more today, from materials and labor to tools and equipment.
Take construction input costs for example. While relatively flat in 2023, they
remain almost 40% higher than they were pre-pandemic. With borrowing costs still high in the face of a stubbornly strong economy, project financing will remain a challenge.
Still, contractors are expected to break more ground in 2024, fueled in part by the CHIPS Act, the Inflation Reduction Act and the Infrastructure Investment and Jobs Act.
Despite wages growing and the labor market remaining tight, many businesses are expected to dive deeper into their backlogs. Meanwhile, the economy is
expected to grow with a chance for a short and mild recession. As industry leaders gauge economic pressures, it’s clear businesses must manage their costs—and financial risks in 2024. It’s a year where insurance and safety should take priority. Below are economic trends to monitor, and insurance strategies to help protect this year’s bottom line.
Reprinted courtesy of
Michael Teng, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Read the full story...
McDermott International and BP Team Arbitrate $535M LNG Site Dispute
April 02, 2024 —
Mary B. Powers - Engineering NewsCritical Updates in Builders Risk Claim Recovery: Staying Ahead of the "Satisfactory State" Argument and Getting the Most Out of LEG 3
December 11, 2023 — Gregory D. Podolak & Cheryl L. Kozdrey - Saxe Doernberger & Vita, P.C.
Builders risk claims routinely involve complicated and aggressive debate about the interplay between covered physical loss and uncovered faulty work. However, denials on this front have recently experienced a noticeable uptick in frequency, creativity, and aggressiveness. The insurer arguments concentrate in two key areas with a common theme – that any damage associated with a construction defect is not covered:
- Defective constructio
The National Labor Relations Board Joint Employer Standard is Vacated by the Eastern District of Texas
April 22, 2024 — Andrew G. Vicknair - The Dispute Resolver
Many employment laws use the concept of joint employer to make more than one business entity responsible for complying with employment law obligations towards employees who to varying degrees work for, or under the direction of entities who are not technically the employees primary employer. Nowhere is that issue more prevalent than in contractor subcontractor relationships. Over the years the National Labor Relations Board (NLRB) has developed various tests for determining joint employer status. Unless a business entity is an employer of individuals, the NLRB has no jurisdiction over a dispute between the workers and a business entity for whom they work.
It is important for contractors to understand the importance of being an employer and the obligations that flow from such status. Likewise, it is also important to understand when a contractor may be classified as a “joint emploReplacement of Gym Floor Due to Sloppy Paint Job is Not Resulting Loss
January 02, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The court granted the insurer's motion for summary judgment finding damage to the gym floor due to a poor paint job was not a resulting loss. Bob Robinson Commercial Flooring, Inc. v. RLI Ins,. Co., 2023 U.S. Dist. LEXIS 196105 (D. Ark. Nov. 1, 2023).
Bob Robinson Commercial Flooring (BRCF) submitted a bid to the general contractor, Nabholz Construction Corporation, to install a vinyl athletic floor and striping at a middle school. The job also included the painting of a "Wildcat" logo the main gym floor. Therefore, BRCF's job was to install floors with proper painting and striping. Robert Liles and Robert Lines Parking Lot Services was the subcontractor hired to do the painting and striping. BRCF did not supervise or inspect Liles' work while it was ongoing.
Nabholz informed BRCF that there were problems with the floor painting, including crooked lines, incorrect markings, misplacement of the three point lines for the basketball surface, drips, smudges, etc. The gym floor was eventually rejected due to the nature of the vinyl flooring, once primer and paint were applied, the paint could not be removed and repainted. BRCF had to hire a new subcontractor to remove the flooring, install new flooring and then paint new lines. The cost for removal and replacement was $134,188.95. Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com
ASCE Releases New Report on Benefits and Burdens of Infrastructure Investment in Disadvantaged Communities
February 05, 2024 — The American Society of Civil Engineers
Washington — The American Society of Civil Engineers today released a new paper, Measuring the Benefits and Burdens of Infrastructure in Disadvantaged Communities. The report looks at how several communities across the country consider equity when investing infrastructure funds, and the impact of those projects on lower-income communities.
"Civil engineers are focused on improving quality of life by building systems that improve the public's health, safety, and well-being," said Marsia Geldert-Murphey, P.E., 2024 President, ASCE. "However, the decisions on how and where infrastructure is built can affect communities for decades after a project is complete. By looking at the benefits and burdens of past projects, infrastructure owners and developers can find better ways to consider the impact of infrastructure projects being designed now."
Some of the recommendations in the paper include encouraging government and other infrastructure stakeholders to use community engagement and transparent metrics when making decisions about proposed infrastructure investments. It also encourages post-project assessments and the use of existing resources to evaluate the positive and unexpected consequences of past infrastructure projects.
Measuring the Benefits and Burdens of Infrastructure in Disadvantaged Communities is available here.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
New Jersey Court Upholds Registration Requirement for Joint Ventures Bidding on Public Works Contracts
December 16, 2023 — Nicholas J. Zaita & Brian Glicos - Peckar & Abramson, P.C.
Introduction
In a matter of “first impression,” on November 30, 2023, the Appellate Division affirmed the New Jersey S
Sewage Flowing in London’s River Thames Draws Green Bond Demand
Insurer's Summary Judgment Motion to Reject Claim for Construction Defects Upheld
Quick Note: Expert Testimony – Back to the Frye Test in Florida
Property Damage, Occurrences, Delays, Offsets and Fees. California Decision is a Smorgasbord of Construction Insurance Issues
Cross-Motions for Partial Judgment on the Pleadings for COVID-19 Claim Denied
What You Need to Know About Enforcement Actions by the Contractors State License Board
Critical Materials for the Energy Transition: Of “Rare Earths” and Even Rarer Minerals
Summary Findings of the Fourth National Climate Assessment
Traub Lieberman Attorneys Lisa Rolle and Christopher Acosta Win Summary Judgment in Favor of Property Owner
Feds Outline Workforce Rules for $39B in Chip Plan
California Contractor Tests the Bounds of Job Order Contracting
U.S. Construction Spending Rose in 2017 by Least in Six Years
Ex-Engineered Products Firm Executive Convicted of Bid Rigging
Subcontractors Have Remedies, Even if “Pay-if-Paid” Provisions are Enforced
Reminder: In Court (as in life) the Worst Thing You Can Do Is Not Show Up
Traub Lieberman Attorneys Burks Smith and Katie Keller Win Daubert Motion Excluding Plaintiff’s Expert’s Testimony in the Middle District of Florida
Remodels Replace Construction in Redding
Brief Overview of Rights of Unlicensed Contractors in California
Echoes of Shutdown in Delay of Key Building Metric
Bert Hummel Appointed to Chief Justice’s Commission on Professionalism
The Ghosts of Projects Past
When Employer’s Liability Coverage May Be Limited in New York
Damron Agreement Questioned in Colorado Casualty Insurance v Safety Control Company, et al.
Former Owner Not Liable for Defects Discovered After Sale
Is Privity of Contract with the Owner a Requirement of a Valid Mechanic’s Lien? Not for GC’s
Want More Transit (and Federal Funding)? Build Housing That Supports It
Forecast Sunny for Solar Contractors in California
SFAA Commends Congress for Maintaining Current Bonding Protection Levels in National Defense Authorization Act (NDAA)
Partners Nicole Whyte and Karen Baytosh are Selected for Inclusion in Best Lawyers 2021 and Nicole Nuzzo is Selected for Inclusion in Best Lawyers: Ones to Watch
Construction Defect Settlement in Seattle
Gary Bague Elected Chairman of ALFA International’s Board of Directors
Texas Supreme Court Finds Payment of Appraisal Award Does Not Absolve Insurer of Statutory Liability
OSHA Penalties—What Happened with International Nutrition
Amendments to California Insurance Code to Require Enhanced Claims Handling Requirements for Claims Arising Out Of Catastrophic Events
Faulty Workmanship Causing Damage to Other Property Covered as Construction Defect
Dallas Home Being Built of Shipping Containers
Arbitration Provisions Are Challenging To Circumvent
Flood Sublimit Applies, Seawater Corrosion to Amtrak's Equipment Not Ensuing Loss
Chicago’s Bungalows Are Where the City Comes Together
Making Construction Innovation Stick
Elizabeth Lofts Condo Owners Settle with Plumbing Supplier
Repairing One’s Own Work and the one Year Statute of Limitations to Sue a Miller Act Payment Bond
Payment Bond Surety Entitled to Award of Attorneys’ Fees Although Defended by Principal
Conspirators Bilked Homeowners in Nevada Construction Defect Claims
Ohio Condo Development Case Filed in 2011 is Scheduled for Trial
Ninth Circuit Upholds Corps’ Issuance of CWA Section 404 Permit for Newhall Ranch Project Near Santa Clarita, CA
Hail Drives Construction Spending in Amarillo
Los Angeles Could Be Devastated by the Next Big Earthquake
Colorado Hotel Neighbors Sue over Construction Plans
Wisconsin Court Applies the Economic Loss Doctrine to Bar Negligence Claims for Purely Economic Losses
Insurers' Communications Through Brokers Not Privileged
Insurers Get “Floored” by Court of Appeals Regarding the Presumptive Measure of Damages in Consent Judgments
Stop by BHA’s Booth at WCC and Support the Susan G. Komen Foundation
Preparing Your Business For Internal Transition
Fannie Overseer Moves to Rescue Housing With Lower Risk to Lenders
Colorado House Bill 17-1279 – A Misguided Attempt at Construction Defect Reform
"Your Work" Exclusion Bars Coverage
Cerberus, Blackstone Loosening Credit for U.S. Landlords
Improper Means Exception and Tortious Interference Claims
S&P Near $1 Billion Mortgage Ratings Settlement With U.S.
