OSHA Penalties—What Happened with International Nutrition
April 15, 2015 —
Craig Martin – Construction Contractor AdvisorFor those of you in and around Omaha, you recall the tragic collapse of International Nutrition’s plant in early 2014, killing two workers and injuring several others. OSHA swept onto the scene and issued citations. Surprisingly, the penalties totaled only $120,000. While a large sum, one would think two deaths and a score of injuries would generate a larger fine. International Nutrition appealed the penalties and they have now been reduced to $78,000, about a 1/3 reduction. Below, I’ll set forth what happened.
The Original Penalties
International Nutrition was originally fined $120,650.00 for citations ranging from willful, serious, to other-than-serious.
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Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
Court Adopts Magistrate's Recommendation to Deny Insurer's Summary Judgment Motion in Collapse Case
June 06, 2018 —
Tred R. Eyerly - Insurance Law HawaiiThe district court accepted the magistrate's recommended ruling denying the insurer's motion for summary judgment on breach of contract and bad faith claims in a case involving collapse. Jang v. Liberty Mut. Fire Ins. Co., 2018 U.S. Dist. LEXIS 51880 (D. Conn. March 27, 2018).
After purchase of their home, the insureds' inspector found large cracks in the foundation. Liberty denied coverage, contending that the basement wall was collapsing due to settling earth or movement. The insureds' expert later found the foundation had cracks from the oxidation of iron sulfide minerals in the foundation's concrete. The insureds sued for breach of contract, bad faith, and violations of the Connecticut Unfair Insurance Practice Act and the Unfair Trade Practices Act.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Pallonji Mistry, Indian Billionaire Caught in Tata Feud, Dies at 93
August 15, 2022 —
Bhuma Shrivastava - BloombergPallonji Mistry, the Indian-born billionaire whose engineering empire built luxury hotels, stadiums, palaces and factories across Asia and whose family’s epic showdown with the Tata Group sparked India’s biggest corporate feud, has passed away in Mumbai. He was 93.
A company spokesperson confirmed the death of the Indian tycoon after social media posts on the news spread.
Mistry and his family control the Shapoorji Pallonji Group, which started more than 150 years ago and today employs more than 50,000 people in over 50 countries, according to its website. Its landmark projects include the Reserve Bank of India and the Oberoi Hotel in Mumbai and the blue-and-gold Al Alam palace for the Sultan of Oman.
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Bhuma Shrivastava, Bloomberg
Arizona Purchaser Dwelling Actions Are Subject to a New Construction
September 04, 2019 —
William L. Doerler - The Subrogation StrategistArizona recently amended its Purchaser Dwelling Action statute to, among other things, involve all contractors in the process, establish the parties’ burdens of proof, add an attorney fees provision, establish procedural requirements and limit a subcontractor’s indemnity exposure. The governor signed the bill—2019 Ariz. SB 1271—on April 10, 2019, and the changes go into effect and apply, retroactively “to from and after June 30, 2019.” The following discussion details some of the changes to the law.
Notice to Contractors and Proportional Liability
Under the revised law, a “Seller” who receives notice of a Purchaser Dwelling Action (PDA) from a residential dwelling purchaser pursuant to A.R.S. § 12-1363* has to promptly forward the notice to all construction professionals—i.e. architects, contractors, subcontractors, etc., as defined in A.R.S. § 12-1361(5)—that the Seller reasonably believes are responsible for an alleged construction defect. A.R.S. § 12-1363(A). Sellers can deliver the notice by electronic means. Once construction professionals are placed on notice, they have the same right to inspect, test and repair the property as the Seller originally placed on notice. A.R.S. § 12-1362(B), (C).
To the extent that the matter ultimately goes to suit, A.R.S. § 12-1632(D) dictates that, subject to Arizona Rules of Court, construction professionals “shall be joined as third-party defendants.” To establish liability, the purchaser has the burden of proving the existence of a construction defect and the amount of damages. Thereafter, the trier of fact determines each defendant’s or third-party defendant’s relative degree of fault and allocates the pro rata share of liability to each based on their relative degree of fault. However, the seller, not the purchaser, has the burden of proving the pro rata share of liability for any third-party defendant. A.R.S. § 12-1632(D).
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William L. Doerler, White and Williams LLPMr. Doerler may be contacted at
doerlerw@whiteandwilliams.com
Remand of Bad Faith Claim Evidences Split Among Florida District Courts
September 04, 2018 —
Michael S. Levine & Daniel Hentschel - Hunton Insurance Recovery BlogWhether an insurance bad faith claim, joined by amendment to an underlying insurance coverage action, may be removed more than a year after the original action was begun has divided federal judges in the state of Florida but has not yet been considered by the Eleventh Circuit. Now, a new opinion out of the Middle District of Florida (Jacksonville Division) has added to the debate.
Reprinted courtesy of
Michael S. Levine, Hunton Andrews Kurth and
Daniel Hentschel, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Hentschel may be contacted at dhentschel@HuntonAK.com
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Differing Site Conditions: What to Expect from the Court When You Encounter the Unexpected
September 05, 2022 —
Margarita Kutsin - Ahlers Cressman & Sleight[
1]Seattle Tunnel Partners (“STP”), a joint venture of Dragados USA and Tutor Perini, entered into a $1.4 billion contract with the Washington State Department of Transportation (“WSDOT”) to replace the Highway 99 viaduct. In December 2013, a tunnel boring machine (“TBM”) bearing the moniker “Bertha,” then the largest TBM ever built, measuring 425 feet long and 57 feet in diameter, struck an underground pipe. Shortly after the impact, Bertha overheated and eventually could no longer make forward progress. A massive repair effort ensued causing a 2.5-year delay in reaching substantial completion.
WSDOT sued STP for the delay, seeking liquidated damages of $57 million. In response, STP argued its delay was excusable because it was caused by Bertha’s impact with the pipe, and the steel well casing was a Differing Site Condition (DSC) undisclosed in the contract documents. STP asserted counterclaims against WSDOT, alleging breach of contract and seeking $300 million in damages. Ultimately, a jury found that the steel well casing on the pipe was not a DSC, foreclosing STP’s excusable delay defense and counterclaims, and resulting in a $57 million verdict, plus interest, in favor of WSDOT.
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Margarita Kutsin, Ahlers Cressman & SleightMs. Kutsin may be contacted at
margarita.kutsin@acslawyers.com
South African Building Industry in Line for More State Support
November 08, 2021 —
Prinesha Naidoo - BloombergSouth Africa’s government is planning more measures to bolster its ailing building industry after banning the use of imported cement on state construction projects.
“Government is undertaking research across a range of construction-related products where there appears to be significant potential for localization,” Stephen Hanival, chief economist at the Department of Trade, Industry and Competition, said in an emailed response to questions. “Further announcements will be made in due course.”
The country’s preferential procurement policy framework enables the department to designate sectors for localization in line with national development and industrial policy goals. While the government has pursued localization since 2014, it has become more strategic since the advent of the pandemic with business, government and labor groups agreeing on an initial list of 42 products and sub-sectors that should be prioritized, Hanival said.
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Prinesha Naidoo, Bloomberg
New Mandatory Bond Notice Forms in Florida
December 16, 2019 —
Brian A. Wolf & Miles D. Jolley - Smith CurrieSubcontractors and suppliers must now use new, statutory notice of nonpayment forms to preserve payment bond claims, and sign each notice of nonpayment under oath.
The State of Florida instituted changes to the statutes governing public-project payment bonds (section 255.05, Florida Statutes) and private-project payment bonds (section 713.23, Florida Statutes). The changes went into effect on October 1, 2019. Previously, notices of nonpayment were not required to be signed under oath. Now, the law requires the use of specific statutory notice forms that claimants must sign under oath. Previously, there were no statutory penalties for claimants who exaggerated the amount claimed against a payment bond. Now there are specific statutory penalties against a claimant who willfully or negligently signs a notice of nonpayment that includes a claim for work not performed or materials not furnished, or who is guilty of signing a notice prepared with willful or gross negligence.
Public construction payment bonds are governed by section 255.05, Florida Statues, also known as Florida’s Little Miller Act. This statute requires all payment bond claimants who don’t have a direct contract with the general contractor to serve both the bonding company and the general contractor with a notice of nonpayment no later than 90 days after their last date of work or last delivery of materials. The amended statute now requires that the claimant use the statutory notice form and sign the form under oath. If the claimant includes exaggerated claims, or intentionally makes a claim for work or materials not provided, or otherwise prepares a notice with gross negligence, then the bonding company and the general contractor will be able to use such as a complete defense to an otherwise valid bond claim.
Reprinted courtesy of
Brian A. Wolf, Smith Currie and
Miles D. Jolley, Smith Currie
Mr. Wolf may be contacted at bawolf@smithcurrie.com
Mr. Jolley may be contacted at mdjolley@smithcurrie.com
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