4 Steps to Take When a Worker Is Injured on Your Construction Site
March 27, 2023 —
Zachary Perecman - Construction ExecutiveThe construction industry continues to be one of the fastest-growing labor trades. According to the
Center for Construction Research and Training, since 2019, 11.4 million U.S. workers have been employed in construction, a 25% increase from 2011. Amid this growth, the industry has remained one of the most dangerous, and workers are often at higher risk of injuries and deaths due to occupational incidents. According to the U.S. Bureau of Labor Statistics, there are 150,000 injuries on construction work sites annually.
Under Occupational Health and Safety Administration (OSHA) law, employers have a responsibility to provide a safe work environment. That includes providing a workplace that is free of serious recognized hazards. Despite best efforts in implementing risk-mitigation and safety protocols, employers must be prepared with an incident procedure should an incident occur on a jobsite. Taking immediate, clear actions can impact the severity and outcome of injuries from a workplace incident. With this in mind, employers should take the lead in implementing safety procedures for injuries on construction sites and should inform all safety site managers and workers of the steps that should be taken.
Reprinted courtesy of
Zachary Perecman, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Read the court decisionRead the full story...Reprinted courtesy of
New NEPA Rule Restores Added Infrastructure Project Scrutiny
May 10, 2022 —
Pam McFarland - Engineering News-RecordThe White House Council on Environmental Quality has finalized a regulation that restores basic project environmental review practices that were in place prior to changes made during the Trump administration. The rule is the first of two that will have the Biden administration’s stamp on how such reviews are done under the National Environmental Policy Act (NEPA) for major federal construction projects.
Reprinted courtesy of
Pam McFarland, Engineering News-Record
Ms. McFarland may be contacted at mcfarlandp@enr.com
Read the full story... Read the court decisionRead the full story...Reprinted courtesy of
Latosha Ellis Selected for 2019 Leadership Council on Legal Diversity Pathfinder Program
April 10, 2019 —
Michael S. Levine - Hunton Andrews KurthHunton Andrews Kurth has selected Latosha Ellis, an associate in the firm’s Insurance Coverage practice, for the 2019 Leadership Council on Legal Diversity (LCLD) Pathfinder Program. Pathfinder is a national yearlong program that trains diverse, high performing, early-career attorneys in critical career development strategies, including foundational leadership and building professional networks.
Read the court decisionRead the full story...Reprinted courtesy of
Michael S. Levine, Hunton Andrews KurthMr. Levine may be contacted at
mlevine@HuntonAK.com
Delays in Filing Lead to Dismissal in Moisture Intrusion Lawsuit
September 09, 2011 —
CDJ STAFFThe Alabama Court of Civil Appeals has upheld a summary judgment in the case of Franklin v. Mitchell. Walter Mitchell, doing business as Southern Classic Construction built a new home for the Franklins. The Franklins moved into the home in October 2001. In April 2006 they discovered sagging floors in both the bathroom and kitchen. They contacted Mitchell who suggested the flooring might be defective. The Franklins spent eight months attempting to contact the flooring manufacturer.
In March 2007, the Franklins had the home inspected. The sagging was determined to be due to a loss of strength in the decking because of condensation from the air conditioning system. Air returns were not properly sealed and drawing moisture into the structure. There was mold on the decking and floor joints.
When Mitchell was contacted by the Franklins, he told them his one-year warranty had expired but had the HVAC subcontractor, Southern Mechanical Heating & Air (owned by Mitchell’s father, Jim Mitchell), look at the situation. SMHA replaced and braced subfloors. Later, they entered the crawl space to tape ducts, seal the air return, and insulate the air vent housing. The Franklins were not satisfied with the repairs, as not all the ducts were taped, nor were the air vent housings insulated.
Franklin complained to Walter Mitchell who again cited his one-year warranty. Jim Mitchell said he would not report complaints to his insurer, stating that the repairs were unnecessary, that the work had been done correctly in the first place, and it was only done at the request of Walter Mitchell.
In February 2009, the Franklins sued Walker Mitchell. Mitchell denied the claims, citing in part the statute of limitations. Mitchell also filed complaints against three subcontractors, including his father’s firm. Mitchell received a summary judgment as the case started after Alabama’s six-year statute of limitations.
The appeals court rejected the Franklin’s argument that the claim of damage did not start until they were aware it was due to a construction defect. The court noted that as Walter Mitchell was licensed as a “residential home builder, the statute the Franklins cite did not apply, as it concerns architects, engineers, and licensed general contactors.”
Nor did they feel that Mitchells’ claim that his warranty had expired were sufficient to override the statute of limitations, quoting an earlier case, “Vague assurances do not amount to an affirmative inducement to delay filing suit.” Their claim of subsequent negligent repairs was rejected because Mitchell did not direct the specific actions taken by his father’s firm.
Read the court’s decision…
Read the court decisionRead the full story...Reprinted courtesy of
Communicate with the Field to Nip Issues in the Bud
March 16, 2017 —
Christopher G. Hill – Construction Law MusingsThis past week, I spent some time meeting with clients and generally discussing the day to day operations of construction companies. One common theme of these discussions (and of this construction blog) was the need to deal with problems at a job site early. I have often discussed the contract side of catching things early, and firmly believe that this is the first step to a successful construction project. This post is about the equally important “operational” side of this advice.
What do I mean by “operational?” Essentially, while the contract negotiation and drafting tries to anticipate problems that might occur, the operational side deals with problems on a job site as they occur. In short, moving from what might occur (something I as a construction lawyer think about all the time), to what is actually occurring when putting that contract to work. Whether you are a general contractor, owner, subcontractor, or supplier to a construction project, you are likely well aware of the fact that Murphy was an optimist and something will go wrong. How you deal with this fact can be the difference between a successful, profitable project, and one that ends up in litigation (read: not as profitable). However, in order to deal with a problem properly, you need to know about the problem before it explodes. Without this knowledge, a problem could fester and lead to non-payment, subcontractor mechanic’s liens, and other headaches that don’t need to be further mentioned here.
Read the court decisionRead the full story...Reprinted courtesy of
Christopher G. Hill, The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
SAFETY Act Part II: Levels of Protection
June 21, 2024 —
Lorelie S. Masters, Kevin W. Jones & Charlotte Leszinske - Hunton Insurance Recovery BlogPart I of this series,
SAFETY Act is Powerful Protection Against Emerging Liabilities, addressed the benefits of obtaining SAFETY Act coverage, including:
- From a reputational perspective, SAFETY Act protection provides benefits even absent a security incident: it demonstrates that a knowledgeable federal agency has examined the relevant technology and determined that it is both safe and effective.
- SAFETY Act protection can benefit companies taking steps to enhance the security of their physical premises and operations, or their cybersecurity defenses, to reduce their potential liability and enhance their reputation.
- Other benefits include—depending on the level of protection—powerful liability protections including exclusive federal jurisdiction and choice of law for the venue where the incident occurred, caps on liability, prohibitions on punitive damages, and government contractor immunity.
This post will explain the levels of protection that a company can seek under the SAFETY Act.
Reprinted courtesy of
Lorelie S. Masters, Hunton Andrews Kurth,
Kevin W. Jones, Hunton Andrews Kurth and
Charlotte Leszinske, Hunton Andrews Kurth
Ms. Masters may be contacted at lmasters@HuntonAK.com
Mr. Jones may be contacted at kjones@HuntonAK.com
Ms. Leszinske may be contacted at cleszinske@HuntonAK.com
Read the court decisionRead the full story...Reprinted courtesy of
Strangers in a Strange Land: Revisiting Arbitration Provisions to Account for Increasing International Influences
July 16, 2023 —
William Underwood - ConsensusDocsArbitration is nothing new. Neither is globalization. But the two are coming together in ways that have incrementally influenced the manner in which many arbitrations are now conducted. And this merits a re-examination of old arbitration clauses to account for some of these new influences. With that in mind, this article will examine some basic considerations when examining arbitration agreements within a construction industry that continues to see the increasing participation of foreign companies in domestic projects. Although this is not a comprehensive review of best drafting practices, nor is it a full survey of the differences between domestic and international arbitration, this article will nonetheless highlight a few basic concepts to keep in mind when reviewing arbitration clauses.
As a basic starting point, the continuing globalization of the construction industry has led to distinct impacts on the ways in which parties conduct arbitrations in the United States. The increased participation of international companies in domestic construction projects has naturally led to the application of international legal concepts to domestic alternative dispute resolution. And the increasing prevalence of these international concepts has led to a number of important trends that can impact the way arbitrations are handled.
Read the court decisionRead the full story...Reprinted courtesy of
William Underwood, Jones & Walker (ConsensusDocs)Mr. Underwood may be contacted at
wunderwood@joneswalker.com
Unintended Consequences of New Building Products and Services
April 19, 2022 —
David S. Jaffe – National Association of Home BuildersAs home builders throughout the United States are grappling with building material price surges, and shortages or delays for certain orders, many are exploring alternatives products to complete or start projects. For example, according to a recent article, some builders are constructing homes from natural materials such as rammed earth, adobe brick, and volcanic rock. In addition to being readily available on site there may be heating and cooling benefits due to the natural insulation provided by these materials. The article cautions, however, that using these alternative materials may come with added challenges such as higher costs due to a need for skilled labor, delays by home inspectors who may be unfamiliar with the techniques and methods of construction, and energy consultants who might have difficulty calculating the value of homes with these materials. See Home Builders Are Turning to Natural Materials to Get Around Supply Chain Problems; There are advantages to buying homes made with natural materials, but expect to pay a premium, Alanna Schubach, Mansion Global (March 25, 2022).
Another caution, not addressed in the article, however, but one that should be heeded by builders considering alternative materials, is the unintended consequences that might result from using alternative products, whether they are natural products or any others. The long-term effects of material use should not be ignored.
For instance, it has been reported that earthen materials are known to contain numerous organic substances and can also harbor mold. It was not too long ago that mold was a high liability issue for builders and property owners. Similarly, the use of rapidly renewable materials - products that can be produced naturally and quickly from nature - is a key component of green building. They are also cellulose or carbohydrate-based products and as such are typically optimal food sources for mold in the presence of moisture.
To avoid mold, it is important to understand the relationship between construction materials and their susceptibility to mold in the presence of moisture. “Buildings will never be designed, built, maintained, or utilized perfectly; and weather and natural disasters cannot be predicted. The one thing we can have complete control over, the materials within the building, should be selected wisely.” See Mold Susceptibility of Rapidly Renewable Building Materials Used in Wall Construction, AM Cooper, Master's thesis, Texas A&M University (2007) (Samples of wool, cork, straw, and cotton-- rapidly renewable materials used as exterior wall insulation products--were exposed to different moisture amounts in an encapsulated environment, representing the environment within a wall cavity when exposed to water from pipes, leaks, condensation and absorption, or from initial construction. The samples were monitored over time for mold growth).
Mold-related issues are just one example of the potential for unintended consequences from the use of alternative materials. Carefully reviewing building material choices in advance may help eliminate non-conforming building materials, returns and possibly disputes. NAHB has developed a guide,
Assessing Building Materials, for builders who may not have their own review process for gathering information from manufacturers and distributors when considering the selection of new building materials.
The guide is intended to arm members with the most important factor when evaluating new materials or products: information. Use the guide to step through the information collection process to make an informed decision on deploying new products or materials. The guide is not intended to be exhaustive or all-inclusive, but it will help builders ask the right questions and seek the most relevant information.
Copyright © 2022 by the National Association of Home Builders of the United States. All rights reserved.
Read the court decisionRead the full story...Reprinted courtesy of
David S. Jaffe, NAHBMr. Jaffe may be contacted at
DJaffe@nahb.org
