COLUMBUS OHIO BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Subcontractors Aren’t Helpless

July 26, 2017 — Christopher G. Hill - Construction Law Musings
As a construction attorney here in Virginia, I often have the pleasure of assisting subcontractors seeking advice on their all important contracts with general contractors. I often sense that these subcontractors feel that they are at the bottom of the food chain and don’t have the “clout” necessary to push back at all against the myriad clauses in these contracts that seek to push the risk downhill. “Pay if Paid” clauses, subordination of lien clauses (which may or may not be enforceable), indemnification language that seems to make the subcontractor liable for way too much, and the dreaded incorporation clauses , would seem to make the subcontractor hold one big “bag of risk” on any construction project. While this may seem bleak, never fear, as a subcontractor you are not totally helpless. Remember, you don’t have to take a job from a general contractor that you get a bad feeling about. Often the best indicator of whether you want to move forward is your “spidey sense” that something seems a bit off or that the GC is trying to cram too much down your throat. Use your experience in the construction industry to guide your contracting activities. It is better to avoid the bad job than to take it in the long run. If you are a quality subcontractor (and I know you are or you wouldn’t be reading this), other work will come along because general contractors need good subs to get their work done. Read the court decision
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Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Federal Court Strikes Down 'Persuader' Rule

November 23, 2016 — Pam Hunter McFarland – Engineering News-Record
In a victory for construction industry groups, a federal court has permanently blocked a U.S. Dept. of Labor rule requiring attorneys and other outside groups to disclose publicly that they provide advice to employers on how to comply with federal labor laws. Read the court decision
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Reprinted courtesy of Pam Hunter McFarland, Engineering News-Record
Ms. McFarland may be contacted at mcfarlandp@enr.com

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Disjointed Proof of Loss Sufficient

June 11, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The court found that when considered as a whole, separately filed proofs of loss and estimates of damage were sufficient to meet the requirements of a flood policy. Young v. Imperial Fire & Cas. Ins. Co., 2014 U.S. Dist. LEXIS 51863 (April 15, 2014). On August 29, 2012, plaintiffs' property sustained flood damage due to Hurricane Isaac. After Imperial's adjustor inspected the property, advance payments were made for $5000 under the building coverage and $5000 under the contents coverage. On October 26, 2012, the plaintiffs' adjustor submitted a proof of loss for building damages, stating the amount of loss was $175,100, which was the policy limit minus the deductible. The insured wife signed the proof of loss. The actual case value, full cost of replacement or repair, and applicable depreciation were listed "undetermined." Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Defense for Additional Insured Not Barred By Sole Negligence Provision

August 11, 2011 — Tred R. Eyerly - Insurance Law Hawaii

A general contractor was entitled to a defense as an additional insured when the underlying complaint did not allege it was solely negligent. A-1 Roofing Co. v. Navigators Ins. Co., 2011 Ill. App. LEXIS 656 (Ill. Ct. App. June 24, 2011).



A-1 was the general contractor for a roof resurfacing job at a high school. Jack Frost Iron Works Inc. (“Frost”) was one of A-1’s subcontractors. Frost had a CGL policy with Navigators Insurance Company under which A-1 was an additional insured.



An employee of Frost’s subcontractor Midwest Sheet Metal Inc. was killed at the job site when a boom-lift he was operating flipped over. The boom-lift had been leased by another Frost subcontractor, Bakes Steel Erectors, Inc. (BSE). The deceased's estate filed suit against A-1, BSE and two other defendants.



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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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New York City Construction: Boom Times Again?

October 22, 2013 — CDJ STAFF
Construction spending in New York City is expected to reach $31.5 billion this year, which would be the first time has exceeded $30 billion since 2006. Further , construction spending is projected to grow to $37 billion in 2015. During that same period, construction jobs are expected to grow from 120,000 to 130,000. Richard Anderson, the president of the New York Building Congress noted that “just five years after the worst downturn since the Great Depression, the city’s construction industry finds itself on the brink of yet another building boom.” Much of the increase is due to new residential construction. Read the court decision
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Traub Lieberman Partner Eric D. Suben Obtains Federal Second Circuit Affirmance of Summary Judgment in Insurer’s Favor

April 10, 2023 — Eric D. Suben - Traub Lieberman
In the underlying action, a property owner hosting a motorcycle rally was sued after a motorcycle collided with an auto near the entrance to the premises, injuring the cyclists. The cyclists sued the property owner, among others, alleging failure to supervising traffic on the adjoining roadway. The property owner tendered the claim under its CGL policy, which was endorsed with an “absolute auto exclusion,” precluding coverage for claims “arising out of or resulting from the ownership, maintenance, use or entrustment to others of any…auto.” The CGL insurer disclaimed coverage based on the endorsement. In the ensuing coverage litigation, Traub Lieberman represented the insurer, and moved for summary judgment arguing that the “absolute auto exclusion” was dispositive of coverage on the facts alleged, citing case law from New York state courts enforcing similar exclusions to preclude coverage for multi-vehicle accidents. The insured argued in opposition that the outcome should be controlled by Essex Insurance Company v. Grande Stone Quarry, LLC, 82 A.D.3d 1326, 918 N.Y.S.2d 238 (3rd Dep’t 2011), in which the court declined to apply such exclusion in the case of a single-vehicle accident caused by a dangerous condition of the insured’s premises. The federal district judge disagreed with the insured’s argument in this regard, granting Traub Lieberman’s motion for summary judgment in favor of the insurer. Read the court decision
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Reprinted courtesy of Eric D. Suben, Traub Lieberman
Mr. Suben may be contacted at esuben@tlsslaw.com

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Compliance Doesn’t Pay: Compliance Evidence Inadmissible in Strict Liability Actions

February 05, 2024 — Kyle Rice - The Subrogation Strategist
In 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.”” Read the court decision
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Reprinted courtesy of Kyle Rice, White and Williams
Mr. Rice may be contacted at ricek@whiteandwilliams.com

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The Relevance and Reasonableness of Destructive Testing

August 17, 2017 — David Adelstein - Florida Construction Legal Updates
Destructive testing is a routine investigatory procedure in construction defect disputes. The destructive testing is necessary to determine liability (causation), the extent of damage, and the repair protocol. Destructive testing is designed to answer numerous questions: Why did the building component fail? Was the building component constructed incorrectly? What is the magnitude of the damage caused by the failure? What specifically caused the damage? What is the most effective way to fix the failure and damage? There are different iterations to the same questions, but in many instances, destructive testing is necessary to answer these questions. Claimants sometimes prohibit destructive testing. Of course, destructive testing is intrusive. In many instances, it is very intrusive. But, this testing is a necessary evil. Without this testing, how can a defendant truly analyze their potential exposure and culpability? They need to be in a position to prepare a defense and figure out their liability. This does not mean destructive testing is warranted in every single construction defect dispute. That is not the case. However, to say it is never warranted is irrational. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at Dadelstein@gmail.com

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