FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

OSHA Issues New Rules on Injury Record Keeping

August 19, 2015 — Craig Martin – Construction Contractor Advisor
On July 28, 2015, OSHA issued proposed rules seeking to clarify an employer’s ongoing obligation to make and maintain accurate records of work-related injuries and illness. The new rules were drafted in response to the U.S. Court of Appeals decision in AKM LLC, d/b/a Volks Constructors v. Secretary of Labor, in which a contractor successfully argued that OSHA’s citation was issued well beyond the six month limitation period. OSHA’s Injury Record Keeping Obligations The Occupational Safety and Health Act requires each employer to make, keep and preserve records of workplace injuries and illnesses. 29 U.S.C. § 658(c). OSHA has promulgated a set of regulations which require employers to record information about work-related injuries and illnesses in three ways. Employers must prepare an incident report and a separate injury log “within seven (7) calendar days of receiving information that a recordable injury or illness has occurred,” 29 C.F.R. § 1904.29(b)(3), and must also prepare a year-end summary report of all recordable injuries during the calendar year, id. § 1904.32(a)(2). An employer “must save” all of these documents for five years from the end of the calendar year those records cover. 29 C.F.R. § 1904.33(a). Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

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Steps to Defending against Construction Defect Lawsuits

July 21, 2011 — CDJ STAFF

Writing in Claims Journal, Bryan Rendzio notes that the decline in construction has not been matched by a decline in construction defect lawsuits over condominiums. He reviews the ways in which lawyers representing developers can help protect their clients. He identifies four important considerations in defending developers from claims of construction defects.



He advocates a careful review of the contract. “Under a breach of contract claim, the insured’s duties to the party who brought the claim against the insured flow from the contract. Commonly, construction contracts limit the scope of recoverable damages, such as by waiving consequential damages.’



The next step, according to Rendzio is to check of a settlement agreement is already in place, noting that these are “a familiar occurrence in the construction industry, regardless of any lawsuits having been filed.”



He considers the statute of repose “the single-most decisive weapon an insured possesses in its arsenal during a condo defect lawsuit.” He notes that no lawsuits can be brought for construction defects after the end specified by the statute of repose, and if a lawsuit is brought beforehand, no additional parties can be named once the statute has taken effect.



Finally, he warns adjusters to be suspicious when a condo association requests contractual indemnification. He notes that the pitfall in this is that developers and the subsequent condominium association often have similar names, given the theoretical example of a condo project built by “Fake Lakes LLC” and later run by the “Fake Lakes Condominium Association.” Writing in regards to Florida law, he notes that condominium associations do not have successor interest in contracts developers made with contractors.

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Florida Court Puts the Claim of Landlord’s Insurer In The No-Fly Zone

March 06, 2023 — William L. Doerler - The Subrogation Strategist
In United States Aviation Underwriters v. Turnberry Airport Holdings, LLC, No. 3D22-270, 2023 Fla. App. LEXIS 1207 (U.S. Aviation), the Court of Appeal of Florida, Third District (Appellate Court) considered whether the insurer for a commercial landlord could pursue subrogation against the landlord’s tenant. Based on the terms of the lease between the landlord and the tenant, the Appellate Court held that the landlord’s insurer could not pursue subrogation. In U.S. Aviation, the defendant, Turnberry Airport Holdings, LLC (Turnberry Airport) leased space to an insured aircraft owner. The lease contained the following provision: TENANT agrees that all policies of insurance obtained by it in connection with the Space or as required hereunder shall contain appropriate waiver of subrogation clauses. Read the court decision
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Reprinted courtesy of William L. Doerler, White and Williams LLP
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

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Caltrans to Speak before California Senate regarding Bay Bridge Expansion

August 06, 2014 — Beverley BevenFlorez-CDJ STAFF
The San Francisco Chronicle reported that at an upcoming California Senate hearing, Caltrans is expected to defend itself against “allegations that they ‘gagged and banished’ engineers who identified construction problems on the new Bay Bridge eastern span and that the agency failed to maintain basic quality control on the project.” Members of the “Senate Transportation and Housing Committee will question Caltrans Director Malcolm Dougherty, other state officials and the head of the bridge's lead contractor, American Bridge/Fluor, about two reports last week from an investigator and a panel of six engineers who were critical of how the $6.4 billion project was managed.” Read the court decision
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Virtual Mediation – How Do I Make It Work for Me?

December 21, 2020 — Adrian L. Bastianelli, III & Jennifer Harris - Peckar & Abramson, P.C.
Mediation took the construction industry by storm in the late 1980’s and has become a staple for resolving construction claims. Today, most construction contracts, including the ConsensusDocs, require mediation as a condition precedent to binding dispute resolution, whether it be arbitration or litigation. As a result, many construction executives have spent long hours sitting in conference rooms trying to reach resolution with their counterpart through mediation in order to avoid the alternative – costly arbitration or litigation that often produces an unsatisfactory result. While many businesses have foreclosed the possibility of meeting in person due to the COVID-19 pandemic, the contractual requirements for mediation remain. Thus, in most cases, in-person or live mediation is no longer an option; however, attorneys and mediators have developed a virtual process to replace the live process. With a new process comes many questions: Does the virtual process work? What are the best practices and pitfalls for virtual mediation? Will virtual mediation continue when COVID-19 fades away? How do I make virtual mediation work for me? The answers to these questions and more are discussed below. Reprinted courtesy of Adrian L. Bastianelli, III, Peckar & Abramson, P.C. and Jennifer Harris, Peckar & Abramson, P.C. Mr. Bastianelli may be contacted at abastianelli@pecklaw.com Ms. Harris may be contacted at jharris@pecklaw.com Read the court decision
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Landlord Duties of Repair and Covenant of Quiet Enjoyment

February 10, 2020 — Lawrence S. Glosser - Ahlers Cressman & Sleight PLLC
A recent case from Division I Washington Court of Appeals addressed both a landlord’s duties of repair and maintenance and the Covenant of Quiet Enjoyment in commercial leases. Votiv, Inc. v. Bay Vista Owner LLC, No. 78289-4-I, 2019 WL 4419446 (Wash. Ct. App., Sept. 16, 2019). The Plaintiff in that case leased an office space in a mixed-use residential/office/commercial building in Seattle. Although the ownership groups of the various portions of the building were each separate, the entire building was managed by defendant Bay Vista Owner LLC (“BVO”), that was also the Plaintiff’s landlord. There was a need to replace a deteriorating roof membrane to repair water intrusion into the building. The work involved significant demolition on the roof surface over the premises that Votiv, Inc. (“Votiv”), a music/media company, leased on the top floor. The repair work was done primarily during business hours causing significant disturbance to Votiv’s business operations. Votiv sued BVO and other defendants for, among other things, nuisance, breach of lease, constructive eviction, and breach of the covenant of quiet enjoyment. The trial court denied Votiv’s claim for injunctive relief and granted summary judgment to the Defendants. Read the court decision
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Reprinted courtesy of Lawrence S. Glosser, Ahlers Cressman & Sleight PLLC
Mr. Glosser may be contacted at larry.glosser@acslawyers.com

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The Brooklyn Condominium That’s Reinventing Outdoor Common Space

October 24, 2022 — Alexandra Lange - Bloomberg
Courtyard apartments have a long history in the US, particularly in temperate climes, where shaded outdoor corridors and centralized playspaces can be year-round amenities. New York City, however, has only selectively embraced this approach, with private yards and public parks taking up the slack. A new 18-unit condominium, 450 Warren — one of four planned Brooklyn collaborations between architects SO-IL and developers Tankhouse — aims to change that relationship, while also twisting the idea of common outdoor space into something that gets used. Rather than creating one large courtyard, with the open space protected from the street by an L-shaped plan, SO-IL chopped up the outdoor amenities, betting that smaller, more carefully shaped and planted terraces would be more popular than a large undifferentiated expanse of grass. The building’s plan reads as three towers connected by curvy concrete walkways. The building sits across the street from the Gowanus Houses, a public housing development, completed in 1949 with towers of up to 14 stories. The area was rezoned for denser mixed-use development in 2021, but when SO-IL and Tankhouse were developing the plans, regulations limited building heights to a maximum of five stories. Read the court decision
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Reprinted courtesy of Alexandra Lange, Bloomberg

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Safe Commercial Asbestos-Removal Practices

April 18, 2023 — Emily Newton - Construction Executive
Contractors must proceed with caution to safely remove asbestos and protect employees and commercial buildings. Only contractors licensed by the Environmental Protection Agency (EPA) in abatement should dispose of it, because the best asbestos-removal practices require high degrees of care and safety. Asbestos is a stealthy material, quickly becoming airborne and contaminating other areas of the building and humans. No matter a contractor's tenure in the field, it's vital to remember the top practices in the industry as people learn more about elusive, toxic asbestos-containing materials (ACMs). Wait for Technician and Inspector Feedback It’s important to find out if a jobsite contains asbestos. Proceed with caution if the structure was built before the 1990s. The removal process shouldn't start immediately if a business suspects asbestos and reaches out to a company. Inspectors scope the situation and grab samples for lab testing to determine how abaters should handle the case. They will need to know every potential hiding place for the asbestos, analyzing everything from caulking to wiring for asbestos coatings and other variants of the substance. This may take time, but commercial contractors must wait until they receive this information before proceeding. Reprinted courtesy of Emily Newton, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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