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Construction Law Client Alert: Hirer Beware - When Exercising Control Over a Job Site’s Safety Conditions, You May be Held Directly Liable for an Independent Contractor’s Injury

April 06, 2011 — Mark VonderHaar and Yvette Davis

On February 24, 2011, the California Court of Appeal held in Jeffrey Tverberg, et al v. Fillner Construction, Inc. that the imposition of direct liability on a hirer turns on whether the hirer exercised retained control of worksite safety in such a manner that affirmatively contributed to the independent contractor’s injury. Twice, Tverberg, an independent contractor hired by a general contractor's subcontractor, asked the general contractor to make the job site safe by covering up open holes created by another unrelated subcontractor while Tverberg was working at the site. After Tverberg was injured at the site by falling in a hole, he sued both the general contractor and the subcontractor which had hired him.



The Court of Appeal reasoned that when the general contractor instructed another subcontractor to create a condition that was potentially dangerous (i.e., creating open and uncovered bollard holes), and simultaneously required Tverberg to perform unrelated work near the open holes, the general contractor s conduct may have constituted a negligent exercise of its retained control which affirmatively contributed to Tverberg’s injury. The Court also reasoned that the general contractor affirmatively assumed responsibility for the safety of the workers near the holes by only requiring stakes and safety ribbon, and negligently discharged that responsibility which resulted in injury.



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Reprinted courtesy of Mark VonderHaar and Yvette Davis of Haight Brown & Bonesteel. Mr. VonderHaar can be contacted at mvonderhaar@hbblaw.com and Ms. Davis at ydavis@hbblaw.com.

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Colorado Federal Court Confirms Consequetial Property Damage, But Finds No Coverage for Subcontractor

November 01, 2022 — Tred R. Eyerly - Insurance Law Hawaii
A recommended decision from the Magistrate Judge of the Federal District Court for the District of Colorado found there was no coverage for the subcontractor's faulty workmanship, but recognized that Colorado finds consequential damages to be property damage. Indian Harbor Ins. Co. v. Houston Cas. Co., 2022 U.S. Dist. LEXIS 117857 (D. Colo. July 5, 2022). The insured, Tripp Construction, was a subcontrator for contructing balconies at an apartment complex. The owner complained that Tripp failed to properly install balconies. The defective installation of certain balcony components damaged other, non-defective components. The general contractor had an OCIP policy issued by Houston Casualty Company (HCC). The general contractor also had a Subcontractor Default policy issued by Indian Harbor. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Mediation Clause Can Stay a Miller Act Claim, Just Not Forever

July 11, 2021 — Christopher G. Hill - Construction Law Musings
It seems to be Miller Act time here at Construction Law Musings, not to mention in the Federal District Courts here in Virginia. Last week I discussed what sort of work can form the basis for a Miller Act claim. This week I am discussing the effect of a mandatory mediation contract clause on the same type of claim. I have discussed both the benefits and the possible negative consequences of the inclusion of such a clause in your construction contract. The recent case out of the Norfolk, Virginia Federal District Court recently explored the related question of whether such a clause can be enforced in the context of a Miller Act claim. In United States of America, for the use of Precision Air Conditioning of Brevard Inc. v. Cincinnati Insurance Company, the Court was confronted with a possible conflict between the legal requirement that any waiver of the right to pursue a Miller Act claim must be explicitly waived in writing and the clear contractual language between the general contractor and the plaintiff stating that mediation was a condition precedent to suit. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Pennsylvania Superior Court Tightens Requirements for Co-Worker Affidavits in Asbestos Cases

November 26, 2014 — Jerrold P. Anders & Tonya M. Harris – White and Williams LLP
In Krauss v. Trane US Inc., 2014 Pa. Super. 241, --- A.3d --- (October 22, 2014), the Superior Court of Pennsylvania held that a witness affidavit does not create a genuine issue of fact to defeat summary judgment when it reflects only a presumption and belief that certain products contained asbestos. Moreover, when an affidavit fails to demonstrate plaintiff’s frequent, regular, and proximate exposure to a specific defendant’s asbestos-containing product, summary judgment will be granted. The Executor of the Estate of Henry M. Krauss filed two lawsuits against forty-nine defendants in the Philadelphia Court of Common Pleas. Plaintiff alleged that Mr. Krauss, a bricklayer from 1978 to 1983, was occupationally exposed to asbestos and developed mesothelioma. Various defendants moved for summary judgment based on insufficient product identification. The trial court granted summary judgment in favor of the defendants because the co-worker affidavits failed to show that: (1) Mr. Krauss worked in proximity to the defendants’ products; (2) the products contained asbestos during the relevant period; or (3) Mr. Krauss inhaled asbestos fibers from the products. Reprinted courtesy of Jerrold P. Anders, White and Williams LLP and Tonya M. Harris, White and Williams LLP Mr. Anders may be contacted at andersj@whiteandwilliams.com; Ms. Harris may be contacted at harrist@whiteandwilliams.com Read the court decision
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NYC Hires Engineer LERA for Parking Garage Collapse Probe

January 29, 2024 — James Leggate - Engineering News-Record
The investigation into the collapse of a Lower Manhattan parking garage last April is still underway. A Jan. 2 notice published in The City Record identified LERA Consulting Structural Engineers RLLP as the engineering firm assisting with the probe. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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NYC Supertall Tower Condo Board Sues Over Alleged Construction, Design 'Defects'

October 04, 2021 — James Leggate - Engineering News-Record
The condominium board at a 1,396-ft-tall residential tower on New York City’s Billionaires’ Row has sued the building’s developers, claiming to have identified more than 1,500 construction and design defects in common areas alone. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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The Indemnification Limitation in Section 725.06 does not apply to Utility Horizontal-Type Projects

February 07, 2018 — David Adelstein - Florida Construction Legal Updates

One of the most important provisions in construction contracts is the indemnification provision. Appreciating contractual indemnification obligations are critical and certainly should not be overlooked. Ever!

Florida Statute s. 725.06 (written about here and here) contains a limitation on contractual indemnification provisions for personal injury or property damage in construction contracts. There should always be an indemnification provision in a construction contract that addresses property damage or personal injury. Always!

Section 725.06 pertains to agreements in connection with “any construction, alteration, repair, or demolition of a building, structure, appurtenance, or appliance, including moving and excavating associated therewith…” If the contract requires the indemnitor (party giving the indemnification) to indemnify the indemnitee (party receiving the indemnification) for the indemnitee’s own negligence, the indemnification provision is unenforceable unless it contains a “monetary limitation on the extent of the indemnification that bears a reasonable commercial relationship to the contract and is part of the project specifications or bid documents, if any.” It is important to read the statute when preparing and dealing with a contractual indemnification provision.

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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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Contractor Wins in Arbitration Only to Lose Before the Superior Court on Section 7031 Claim

June 19, 2023 — Garret Murai - California Construction Law Blog
If you’re a regularly reader of the California Construction Law Blog you’re aware of Business and Professions Code section 7031 which courts have variously described as “harsh[ ],” “draconian” and “unjust,” but, importantly, nevertheless valid. We haven’t seen many cases applying Section 7031 in an arbitration setting, however, until now. In Vascos Excavation Group LLC v. Gold, 87 Cal.App.5th 842 (2022), a contractor who prevailed on a payment claim in arbitration, had its victory snatched from its fingertips by the Superior Court which found that the arbitrator had exceeded her authority because the contractor was subject to Section 7031. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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