School Board Sues Multiple Firms over Site Excavation Problem
February 12, 2013 —
CDJ STAFFA West Virginia school board has filed a lawsuit against four companies over the construction of the Lewisburg Elementary School. The main allegation is that Carpenter Reclamation Inc. excavated the site deeper than was called for, which then incurred greater expenses for the subsequent contractors, and further that the liner installed by Carpenter Reclamation was defective. The suit also names Western Surety, which issued a performance bond for Carpenter Reclamation.
The school board claims that Carpenter’s failure to fix the problem, required $5,800 in evaluation, review, and testing. Further, the plumbing and lead contractors had additional expenses of $10,587 and $212,645 because of the deeper foundation. The school board has also named these firms, Dougherty Company, Inc. and Swope Construction, in the lawsuit. Ron Mallory, the president of Swope Construction said that the school board’s dispute was “with the site contractor, not with us,” noting that they did corrective work under a change order.
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Is Safety Compliance Putting Your Project in Jeopardy? Examining the Essentials of DOE’s Worker Safety and Health Program
July 02, 2024 —
Lucas T. Daniels & Benjamin J. Hochberg - ConsensusDocsMost contractors are familiar with the myriad of labor and safety regulations intended to safeguard the health and safety of workers. Many contractors will be equally familiar with the maze of forms and reports, the maintenance of safety personnel, safety walks and talks, and the many other measures intended to prevent and prepare for accidents. Less known among contractors and construction industry leaders is the regulatory framework establishing safety requirements and the ramifications of ignoring safety-related rules. Knowing and understanding the jurisdiction and authority of the agencies monitoring safety compliance on your project is critical to avoiding administrative ordeals and audits that could add days or weeks to your schedule and frustrate your staff.
The Department of Energy’s Worker Safety and Health Program
Under the Occupational Safety and Health Act of 1970, as amended (OSH), the Department of Labor’s Occupational Safety and Health Administration (OSHA) issues and enforces occupational health and safety regulations. OSHA, or a state with approval from OSHA, regulates the occupational health and safety of private sector employees unless another federal agency has and exercises its statutory authority to regulate. Several federal agencies have developed their own safety programs and conduct their own enforcement of those regulations independent of OSHA. For example, projects receiving funding from the Department of Energy (DOE) are subject to additional oversight of their safety programs by this agency. DOE directly manages its own Worker Safety and Health Program (WSHP), codified at 10 C.F.R. § 851, et seq., and will enforce compliance with its WSHP at all DOE sites. A “DOE site” is defined as a DOE-owned or -leased area or location or other area or location that DOE controls, where a contractor performs activities and operations in furtherance of a DOE mission. This broad definition encompasses a wide range of facilities and operations, including those not directly managed by the DOE but still under its control. The contractor at such a site must be aware of the specific requirements and procedures of the DOE under the WSHP and the ramifications of violating these regulations.
Reprinted courtesy of
Lucas T. Daniels, Peckar & Abramson, P.C and
Benjamin J. Hochberg, Peckar & Abramson, P.C
Mr. Daniels may be contacted at ldaniels@pecklaw.com
Mr. Hochberg may be contacted at bhochberg@pecklaw.com
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Eastern District of Pennsylvania Denies Bad Faith Claim in HO Policy Dispute
September 24, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to Patrick Nugent of Saul Ewing LLP’s article in JD Supra Business Advisor, the Eastern District of Pennsylvania entered a summary judgment for the insurer on a statutory bad faith claim in a coverage dispute under a homeowner’s policy.
The coverage dispute was over “the collapse of a wall in the plaintiffs’ home.” The Plaintiffs alleged that “the collapse resulted from excessive rainfall during a storm in March 2011.” However, Metropolitan Direct Property and Casualty Insurance Company’s engineer concluded that the collapse “resulted from long-term and on-going water infiltration attributable to poor maintenance.” Water damage had occurred a year prior to the collapse, but had not been repaired.
In response, “Plaintiffs filed a complaint in Pennsylvania state court alleging breach of contract and statutory bad faith.” The court “determined that Metropolitan’s denial of benefits ‘was not only reasonable, but correct under the Policy language,’” and “ruled that the plaintiffs could not demonstrate that Metropolitan lacked a reasonable basis for denying their claim and entered summary judgment for Metropolitan on the plaintiffs’ bad faith claim.”
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Resulting Loss Provision Does Not Salvage Coverage
April 06, 2016 —
Tred R. Eyerly – Insurance Law HawaiiThe court confirmed that there was no coverage for damage to the policyholder's building caused by a large volume of water. Praetorian Ins. Co. v. Arabia Shrine Ctr. Houston, 2016 U.S. Dist. LEXIS 20186 (S.D. Texas Feb. 19, 2016).
The damage occurred when water began seeping through the baseboards of the Shrine. Employees saw a large amount of water entering the building. Eventually, the city shut off a water main valve. It was later determined that an 8 inch diameter fire suppression metal pipe failed at the elbow, causing over one million gallons of water to be released into the building. Damages were estimated at nearly $1.7 million. Clean up and repair costs amounted to $237,156.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Reminder: The Devil is in the Mechanic’s Lien Details
February 16, 2017 —
Christopher G. Hill – Construction Law MusingsAs readers of Construction Law Musings are well aware, mechanic’s liens and their picky and at times overly form oriented nature are near and dear to my heart as a construction attorney here in Virginia. I recently had the opportunity to meet this head on in Hanover County, Virginia Circuit Court. I was defending a suit to enforce a mechanic’s lien in the context of a lien that had been released pursuant to a bond deposited with the court under Va. Code 43-71 on behalf of my client, the defendant in that suit.
The case, G.H. Watts Construction, Inc. v. Cornerstone Builders, LLC, involved a memorandum of lien recorded by G. H. Watts without the assistance of an attorney in which the claimant was identified as “G. H. Watts Construction, Inc.” while the signatory on the memorandum of lien and the claimant identified in the notary block were identified as “Gary H. Watts” and “Gary Watts” respectively. Nowhere on the memorandum was Gary Watts’ capacity as it related to the company, nor did it state that Gary Watts was an agent for claimant.
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Christopher G. Hill, The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Subcontractors Have Remedies, Even if “Pay-if-Paid” Provisions are Enforced
February 19, 2019 —
John P. Ahlers - Ahlers Cressman & Sleight PLLCIn a recent case in Kentucky[1], a sub-tier subcontractor sued the general contractor and owner for failure to pay for extra work. At the trial, the court held the subcontractor was entitled to recover under the theories of implied contracts and unjust enrichment, even though the subcontract contained a “pay-if-paid” clause. All parties appealed. In particular, the general contractor asserted that the pay-if-paid provision in the subcontract precluded recovery by the subcontractor. The issue was petitioned to the Supreme Court of Kentucky.
The question to be resolved by the Supreme Court of Kentucky was whether a pay-if-paid provision was enforceable as between a general contractor and subcontractor, and if so, whether the subcontractor could nevertheless pursue the owner directly for payment notwithstanding a lack of privity between the owner and subcontractor.
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John P. Ahlers, Ahlers Cressman & Sleight PLLCMr. Ahlers may be contacted at
john.ahlers@acslawyers.com
ASCE Statement on Devastating Impacts of Hurricane Helene
October 07, 2024 —
Marsia Geldert-Murphey, P.E., President - American Society of Civil EngineersWASHINGTON, DC. – We are deeply saddened by the tragic loss of life across six states, in addition to the immeasurable damages caused by Hurricane Helene throughout the Southeast this past week. Hundreds of communities are without power. Citizens cannot move safely from one place to another. And in its wake, the storm has left many without drinking water and sewage services. As civil engineers, our first priority when we design and build the structures that connect us is the public's safety and well-being; we are heartbroken to see so many lives lost or upended by Hurricane Helene.
As someone who has experienced losing everything in a catastrophic flood event, I have seen first-hand the need for making communities more resilient, and the consequences of failing to do so. Although hurricanes have consistently been a threat in the U.S., particularly in the Southeast, extreme weather events and 500-year floods are increasing in regularity and our aging infrastructure systems were not built to withstand storms of this magnitude. Total prevention of loss of life or property damage can never be guaranteed, but Helene is a reminder of the importance of widespread adoption of up-to-date, modern building codes and standards.
We are thankful for the hard work of first responders, the military, and other organizations working around the clock to save lives and meet the immediate needs of people affected by this storm. As communities begin the long recovery process, civil engineers will be there to help communities rebuild the roads, bridges, dams, water systems, and other infrastructure damaged or destroyed by the storm.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 160,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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Contractor Given a Wake-Up Call for Using a "Sham" RMO/RME
October 02, 2015 —
Steven M. Cvitanovic & David A. Harris – Haight Brown & Bonesteel LLPTwo weeks ago we wrote about a disgorgement case winding its way through the courts where a contractor who let its license lapse after assigning its contract to a related but properly licensed entity was still facing disgorgement of the entire contract amount. Judicial Council of California v. Jacobs Facilities, Inc. (Ct. of Appeal, 1st App. Dis., Div. One, A140890, A141393.)
Now another disgorgement case, Jeff Tracy, Inc. v. City of Pico Rivera (Ct. of Appeal, 2nd App. District, Div. 2, B258563), shows the risk of not having a genuine RMO/RME. The consequences of disgorgement are potentially devastating and would certainly cause some contractors to go belly-up. The good news for the contractor in this particular case is that the Court of Appeal reversed the trial court. The bad news for the contractor is that damaging facts were revealed during the process of the court trial that will make a victory very difficult to pull off.
Reprinted courtesy of
Steven M. Cvitanovic, Haight Brown & Bonesteel LLP and
David A. Harris, Haight Brown & Bonesteel LLP
Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com
Mr. Harris may be contacted at dharris@hbblaw.com
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