At Long Last, the Colorado Legislature Gets Serious About Construction Defect Reform – In a Constructive Way
February 12, 2024 —
David McLain - Higgins, Hopkins, McLain & Roswell, LLCOn February 5th, Senators Zenzinger and Coleman, along with Representative Bird, introduced Senate Bill 24-106 into the Colorado Legislature. The bill has been assigned to the Senate Committee on Local Government and Housing. What follows are the various portions of the bill I believe to be the most impactful, as described in the bill summary, along with my commentary thereon:
Sections 3 and 6 – A True Right to Repair
Sections 3 and 6 create a right for a construction professional to remedy a claim made against the construction professional by doing remedial work or hiring another construction professional to perform the work. The following applies to the remedy:
- The construction professional must notify the claimant and diligently make sure the remedial work is performed; and
- Upon completion, the claimant is deemed to have settled and released the claim, and the claimant is limited to claims regarding improper performance of the remedial work.
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David McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
Congratulations to BWB&O’s Newport Beach Team on Obtaining a Defense Verdict in Favor of their Subcontractor Client!
April 02, 2024 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPBremer Whyte Brown & O’Meara’s Newport Beach Partner Morgan Stiefel and Associate Brandon Cook obtained a defense verdict after years-long litigation in favor of their subcontractor client.
This lawsuit stemmed from a claim made by Plaintiff for eye injuries arising out of claimed negligence and strict liability associated with our client’s performance of a sandblasting job at a construction site adjacent to Plaintiff’s home. Plaintiff alleges that while she was in her backyard, sand hit her in the eyes at a high velocity speed, resulting in permanent damage to her eyes.
We argued our clients took all necessary safety precautions in the performance of this job, and Plaintiff’s eye irritation symptoms could not have been caused by our client. All of her alleged injuries were either pre-existing or could be explained by circumstances other than our client’s actions. Through expert testimony and our arguments, we were able to show the jury that Plaintiff lied about the sand entering her eyes at a high velocity and her symptoms being caused by our clients’ performance of the sandblasting job.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
Compliance Doesn’t Pay: Compliance Evidence Inadmissible in Strict Liability Actions
February 05, 2024 —
Kyle Rice - The Subrogation StrategistIn Sullivan v. Werner Co., No. 18 EAP 2022, 2023 Pa. LEXIS 1715 (Dec. 22, 2023), the Supreme Court of Pennsylvania (Supreme Court) clarified that in light of its decision in Tincher v. Omega Flex, Inc., 628 Pa. 296 (2014), evidence that a product complied with industry standards is inadmissible in an action involving strict product liability.
In Tincher, the Supreme Court overruled prior case law and reaffirmed that Pennsylvania is a Second Restatement Jurisdiction. As stated in Sullivan, discussing Tincher, under the Restatement (Second) of Torts § 402A, a “seller of a product has a duty to provide a product that is free from ‘a defective condition unreasonably dangerous to the consumer or [the consumer’s] property.’ To prove breach of this duty, a ‘plaintiff must prove that a seller (manufacturer or distributor) placed on the market a product in a “defective condition.””
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Kyle Rice, White and WilliamsMr. Rice may be contacted at
ricek@whiteandwilliams.com
Construction Litigation Roundup: “Wrap Music to an Insurer’s Ears?”
February 05, 2024 —
Daniel Lund III - LexologyThe general contractor on a New Orleans condominium construction project obtained a Contractor Controlled Insurance Program/CCIP policy or "Wrap-Up" policy for the job.
An accident occurred on the job when a construction elevator/hoist fell, injuring several workers. The elevator/hoist was provided by a subcontractor, pursuant to a rental agreement and related subcontract with the general contractor. Contained within the subcontract was a provision which states that the general contractor "has arranged for the Project to be insured under a controlled insurance program (the "CCIP" or "WrapUp"),” and that the CCIP shall provide "commercial general liability insurance and excess liability insurance, in connection with the performance of the Work at the Project site."
A third-party administrator for the wrap-up policy had been in communication with the subcontractor prior to the commencement of the work, “specifically advising that insurance coverage was not automatic” and providing the subcontractor with an enrollment form for the CCIP. Ultimately, the subcontractor “declined to comply with the request,” stating that the subcontractor would "not participate in paying any wrap insurance premiums" – because the subcontractor had its own insurance.
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
The Role of Code Officials in the Design-Build Process
November 16, 2023 —
Grace Calengor - Construction ExecutiveBuilding codes are an integral part of the design-build process, but what role do building code professionals play throughout that process? Kevin McOsker, vice president of technology services for the government relations department at the International Code Council, breaks it down, from basic design to groundbreaking ideas to incorporating new technology and retrofitting older builds.
McOsker, whose experience includes serving as building official for the city of Las Vegas, is no stranger to striking architecture and the safety protocols that go along with it. He believes that safety protocol starts before the contractors begin building and that contractors should be involved throughout the entire journey.
Reprinted courtesy of
Grace Calengor, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Insurer’s Broad Duty to Defend in Oregon, and the Recent Ruling in State of Oregon v. Pacific Indemnity Company
January 02, 2024 —
Keith Sparks - Ahlers Cressman & Sleight PLLCOregon law mandates a broad duty to defend, requiring insurers to provide legal representation to their policyholders whenever there is a potential for coverage under the policy. The significance of this broad interpretation means that an insurer has a duty to defend an insured even in situations where the alleged facts only imply a covered claim, and even in situations where the underlying claim is ultimately not covered by the policy. The insurer’s duty to defend is triggered if the allegations of the complaint, reasonably interpreted, could result in the insured being held liable for damages covered by the policy. This is referred to as the “four-corners” rule; it is also sometimes referred to as the eight-corners rule (for the four corners of the complaint plus the four corners of the policy). Oregon’s adoption of a broad interpretation of the duty to defend affirmatively places the onus on insurers to err on the side of coverage.
This broad duty to defend is based on the principle that an insured should not have to bear the expense of defending a lawsuit that the insurer may ultimately have to pay for. The duty to defend is also important because it helps ensure that insureds have access to legal representation when faced with a lawsuit.
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Keith Sparks, Ahlers Cressman & Sleight PLLCMr. Sparks may be contacted at
keith.sparks@acslawyers.com
Specification Challenge; Excusable Delay; Type I Differing Site Condition; Superior Knowledge
January 02, 2024 —
David Adelstein - Florida Construction Legal UpdatesAn Armed Services Board of Contract Appeals dispute, Appeal of L.S. Black-Loeffel Civil Constructors JV, ASBCA No. 62402, 2023 WL 5827241 (ASBCA 2023), involved which party bore liability for delay—the federal government or the prime contractor–based on various legal theories. Without detailing the factual details, a number of interesting legal issues were raised in this dispute including (1) a defective specification challenge, (2) excusable delay, (3) Type I differing site condition, and (4) superior knowledge. These legal issues are discussed below.
1. Specification Challenge (Defective Specifications)
The contractor claimed that the government’s specifications were defective in regard to a thermal control plan. The government countered that the specifications were not design specifications but performance specifications. The specifications were performance based because they did not tell the contractor how to achieve the performance-based criteria.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
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