Workplace safety should be the at the top of the priority list for every industry, but the construction industry should give it even more importance because of the often times dangerous nature of the business. Worker protection is a worthy goal in and of itself, but there are, of course, other advantages to injury prevention. Lower insurance premiums, fewer missed work days (and hence, increased productivity), and employee morale are all side benefits of a safe workplace.
And so is OSHA compliance. OSHA has recently increased the number of inspectors in Texas in an effort to bolster construction site safety compliance. To do so, it has brought in inspectors from outside of Texas.
OSHA announced that it is focusing on Texas because the state has the highest rate of construction site fatalities. As many companies have learned the hard way, OSHA violations can be quite costly. For example, in May 2009, the organization issued citations to a Dallas-area company for one repeat and two willful violations. The proposed penalties totaled $60,000. (The investigation was prompted by a workplace fatality, which is likely to bring litigation and significantly increased costs beyond OSHA fines.)
Attention to workplace safety should permeate every business in the construction industry. A culture of safety should be instilled from day 1 with every employee. It begins with the implementation of policies and employee training. It continues with daily vigilance on safety issues in the office and on job sites. And it is brought full circle with an intolerance for poor practices.
Fortunately, the overall trend in safety has shown steady improvement. Since OSHA was created in 1971, occupational deaths have been cut by 62% and injuries have declined by 42%. More recently, the AGC announced the results of a new analysis that found construction safety incidents dropped 38% over the last ten years and the construction fatality rate declined 47 percent since 1998, the year the federal government switched to a safety oversight approach known as "collaborative safety."
There are countless legal issues that could be discussed in the context of workplace safety, but the one that stands above them all has less to do with a courtroom and more to do with avoiding a very unpleasant conversation with a wife, mother, or parent. For that reason alone, the quest for a safe workplace is a battle worth fighting every day.
Monday, August 31, 2009
Monday, August 17, 2009
What the Construction Industry Can Learn from the Healthcare Reform Debate
It has been impossible lately to turn on the television or radio, much less the news, without getting an earful about the healthcare reform debate. Regardless of how you personally feel about the reform, there are two important lessons that can be learned from this debate–and neither have anything to do with healthcare!
One of the initial complaints about the proposed healthcare legislation was that members of Congress had not even read the 1000+ page bill and did not know its provisions. What does this have to do with construction? Unfortunately, quite a bit. Just like many Congressmen were not initially very informed of many of the intricacies of the healthcare bill, many contractors and builders are not fully aware of all the terms of the contracts they enter.
Throughout my practice, I have seen numerous instances where I have asked parties whether certain clauses were in their contracts and they simply did not know. I can tell you from experience that it is very difficult for a contractor to manage liabilities and risk on their projects–not to mention payments–if they do not have a thorough understanding of the binding contracts they sign.
Sometimes construction contracts can be fairly lengthy, and often they contain quite a bit of boilerplate language. They may even "look" similar to the hundred other contracts you have signed. But contractors should read every contract thoroughly before entering into it, because that document will govern any disputes that arise later.
Another lesson to be learned from the healthcare debate–misinformation can be costly. For every accurate report on the healthcare bill and the discussions surrounding it, there is probably at least one inaccurate report. Similarly, contractors often have misunderstandings about their contracts. In addition to being familiar with the terms of their contracts, every contractor should know whether all the clauses in their contracts are actually enforceable before signing. For example, Texas law has some very specific requirements about indemnity clauses, and if those requirements are not met, the indemnity clause will not be enforceable. The contract language itself may be clear enough, but if it does not meet these technical requirements, it is worthless. The same goes for liquidated damage provisions; poor contract drafting that does not meet certain criteria could void these provisions as well. Being accurately informed about the validity of your contractual obligations is key.
Regardless of one’s feelings on healthcare reform, it is unquestioned that the proposed bills would bind the country’s healthcare industry to certain standards and requirements and it would involve substantial amounts of money. That sounds a lot like construction contracts. This may sound like basic common sense, but it is very true in this industry–an ounce of prevention beats a pound of cure. Familiarity with your contracts and knowing their enforceability before signing is the best way to position your company to minimize its liability, shift risk, and ensure prompt payments.
One of the initial complaints about the proposed healthcare legislation was that members of Congress had not even read the 1000+ page bill and did not know its provisions. What does this have to do with construction? Unfortunately, quite a bit. Just like many Congressmen were not initially very informed of many of the intricacies of the healthcare bill, many contractors and builders are not fully aware of all the terms of the contracts they enter.
Throughout my practice, I have seen numerous instances where I have asked parties whether certain clauses were in their contracts and they simply did not know. I can tell you from experience that it is very difficult for a contractor to manage liabilities and risk on their projects–not to mention payments–if they do not have a thorough understanding of the binding contracts they sign.
Sometimes construction contracts can be fairly lengthy, and often they contain quite a bit of boilerplate language. They may even "look" similar to the hundred other contracts you have signed. But contractors should read every contract thoroughly before entering into it, because that document will govern any disputes that arise later.
Another lesson to be learned from the healthcare debate–misinformation can be costly. For every accurate report on the healthcare bill and the discussions surrounding it, there is probably at least one inaccurate report. Similarly, contractors often have misunderstandings about their contracts. In addition to being familiar with the terms of their contracts, every contractor should know whether all the clauses in their contracts are actually enforceable before signing. For example, Texas law has some very specific requirements about indemnity clauses, and if those requirements are not met, the indemnity clause will not be enforceable. The contract language itself may be clear enough, but if it does not meet these technical requirements, it is worthless. The same goes for liquidated damage provisions; poor contract drafting that does not meet certain criteria could void these provisions as well. Being accurately informed about the validity of your contractual obligations is key.
Regardless of one’s feelings on healthcare reform, it is unquestioned that the proposed bills would bind the country’s healthcare industry to certain standards and requirements and it would involve substantial amounts of money. That sounds a lot like construction contracts. This may sound like basic common sense, but it is very true in this industry–an ounce of prevention beats a pound of cure. Familiarity with your contracts and knowing their enforceability before signing is the best way to position your company to minimize its liability, shift risk, and ensure prompt payments.
Monday, July 27, 2009
Risk Managers Beware: Third-Party Notice of Suit Insufficient to Trigger Insurer's Duty to Defend and Indemnify
Insurance issues tend to go hand-in-hand with most construction projects. From contractual indemnity and additional insured provisions to workers comp issues, contractors must be as well-versed in insurance as they are in bricks and mortar. When coverage decisions can potentially mean the difference in thousands or even millions of dollars of liability, getting things right with insurance is imperative.
For this reason, a recent decision out of the Fort Worth Court of Appeals, Jenkins v. State and County Mutual Fire Insurance Co., 2009 WL 1650071, should inspire a healthy fear in all construction risk managers. In short, the court strengthened an insurance company’s ability to deny defense and indemnity to an insured based on who provided notice to the insurer of a lawsuit.
In Jenkins, the plaintiff was injured when a tank skid fell off a truck. The plaintiff sued the owner of the truck and its driver (among others). The owner and other defendants (except the driver) were served and promptly forwarded the suit to their insurer, who took over their defense. The plaintiff was unable to personally serve the driver and eventually served him by publication, which was allowed under the rules of civil procedure. The plaintiff’s attorney then advised the insurer (that presumably would have provided coverage to all the defendants, including the driver) of the service by publication and forwarded the suit papers. As such, the insurer had actual knowledge of the suit against its insured driver, even though the driver himself never notified the insurer of the suit and never requested defense and indemnity.
A default judgment was eventually entered against the driver and a jury later found that the driver was solely responsible for the plaintiff’s injuries. The plaintiff tried to collect from the insurer, but the insurer denied that it owed coverage because the driver failed to comply with the policy’s notice-of-suit condition. The plaintiff argued that the insurer had actual knowledge of the suit and therefore waived the notice-of-suit provision. The trial court agreed with the insurer that it did not owe coverage, and the case was appealed.
The Fort Worth Court of Appeals upheld the trial court’s decision that the insurer did not owe coverage. The court noted the rule that an insurer has no duty to defend or indemnify an insured unless the insured forwards suit papers and requests a defense in compliance with the policy’s notice-of-suit conditions. The mere awareness of a claim or suit does not impose a duty on the insurer to defend under the policy; there is no unilateral duty to act unless and until the insured (including additional insureds) first requests a defense.
In short, the court ruled that an insurer has no duty to defend and no liability under a policy unless and until the insured in question (and not a third party) complies with the notice-of-suit conditions and demands a defense. This is true even when the insurer knows that the insured has been sued and served and when the insurer actually defends other insureds in the same litigation. Because the driver himself (i.e. insured) did not make a claim for defense and indemnity, the insurer did not owe him coverage.
To be certain, this decision was a harsh application of very technical requirements of an insurance policy. But it was in line with supreme court precedent and it now represents the law.
While Jenkins was not a construction case per se, the decision will nevertheless have ramifications in the construction industry. Most construction litigation that invokes insurance also involves claims for indemnity and additional insured status. Based on a strict application of the Jenkins decision, it may not be enough to simply tender a case for defense and indemnity to the party from which the indemnity flows. This would be the case even if their insurer is aware of the litigation. The more prudent approach would be to make the tender directly to the carrier.
The same applies to employees who are covered by the same policy as their employer and who are sued individually alongside their employer. In fact, individual employees are often sued along with their employer in construction accident lawsuits. For the employee to receive a defense, they should personally notify the insurer of the suit and request defense and indemnity. The employee should not just hand the suit to his employer and assume everything will be taken care of.
The lesson to be learned from the Jenkins ruling is simple yet important. Because the duty to defend and indemnify does not begin until an insured complies with the notice-of-suit condition, insureds should be absolutely certain that they comply with the notice requirement to the letter to avoid the risk of accidentally forfeiting coverage.
For this reason, a recent decision out of the Fort Worth Court of Appeals, Jenkins v. State and County Mutual Fire Insurance Co., 2009 WL 1650071, should inspire a healthy fear in all construction risk managers. In short, the court strengthened an insurance company’s ability to deny defense and indemnity to an insured based on who provided notice to the insurer of a lawsuit.
In Jenkins, the plaintiff was injured when a tank skid fell off a truck. The plaintiff sued the owner of the truck and its driver (among others). The owner and other defendants (except the driver) were served and promptly forwarded the suit to their insurer, who took over their defense. The plaintiff was unable to personally serve the driver and eventually served him by publication, which was allowed under the rules of civil procedure. The plaintiff’s attorney then advised the insurer (that presumably would have provided coverage to all the defendants, including the driver) of the service by publication and forwarded the suit papers. As such, the insurer had actual knowledge of the suit against its insured driver, even though the driver himself never notified the insurer of the suit and never requested defense and indemnity.
A default judgment was eventually entered against the driver and a jury later found that the driver was solely responsible for the plaintiff’s injuries. The plaintiff tried to collect from the insurer, but the insurer denied that it owed coverage because the driver failed to comply with the policy’s notice-of-suit condition. The plaintiff argued that the insurer had actual knowledge of the suit and therefore waived the notice-of-suit provision. The trial court agreed with the insurer that it did not owe coverage, and the case was appealed.
The Fort Worth Court of Appeals upheld the trial court’s decision that the insurer did not owe coverage. The court noted the rule that an insurer has no duty to defend or indemnify an insured unless the insured forwards suit papers and requests a defense in compliance with the policy’s notice-of-suit conditions. The mere awareness of a claim or suit does not impose a duty on the insurer to defend under the policy; there is no unilateral duty to act unless and until the insured (including additional insureds) first requests a defense.
In short, the court ruled that an insurer has no duty to defend and no liability under a policy unless and until the insured in question (and not a third party) complies with the notice-of-suit conditions and demands a defense. This is true even when the insurer knows that the insured has been sued and served and when the insurer actually defends other insureds in the same litigation. Because the driver himself (i.e. insured) did not make a claim for defense and indemnity, the insurer did not owe him coverage.
To be certain, this decision was a harsh application of very technical requirements of an insurance policy. But it was in line with supreme court precedent and it now represents the law.
While Jenkins was not a construction case per se, the decision will nevertheless have ramifications in the construction industry. Most construction litigation that invokes insurance also involves claims for indemnity and additional insured status. Based on a strict application of the Jenkins decision, it may not be enough to simply tender a case for defense and indemnity to the party from which the indemnity flows. This would be the case even if their insurer is aware of the litigation. The more prudent approach would be to make the tender directly to the carrier.
The same applies to employees who are covered by the same policy as their employer and who are sued individually alongside their employer. In fact, individual employees are often sued along with their employer in construction accident lawsuits. For the employee to receive a defense, they should personally notify the insurer of the suit and request defense and indemnity. The employee should not just hand the suit to his employer and assume everything will be taken care of.
The lesson to be learned from the Jenkins ruling is simple yet important. Because the duty to defend and indemnify does not begin until an insured complies with the notice-of-suit condition, insureds should be absolutely certain that they comply with the notice requirement to the letter to avoid the risk of accidentally forfeiting coverage.
Tuesday, June 30, 2009
Wage & Overtime Claims: When Builders Must Wear the HR Manager (Hard)Hat
Just as any construction project has many parts that must be effectively executed to achieve the end product, every construction company has many components that it must manage to ensure success. One of the more important ones is personnel/human resources. At the end of the day, all the nice equipment, financing, and contracts don’t mean much if there are no skilled trades and craftsmen on the ground to bring a project to life.
The world’s leading HR management organization, SHRM (Society for Resource Management) recently published a study that about 72 percent of employees across the nation said they work through lunch, while 70 percent reported working beyond a 40-hour workweek. Only 21 percent of the people polled cited pressure from supervisors as the reason for this. To the contrary, 52 percent claimed the extra work was because of "self-imposed pressure," while 44 percent cited "meeting project or performance goals."
Discussions about overtime and extra work may, on its face, seem a little out of place for a construction industry that has been hit hard financially in the last 18 months and seen plenty of layoffs. Recently, however, there have been trickles of encouraging economic news ("green sprouts," as Fed Chairman Ben Bernanke has called them), and we know that the industry will pick up at some point. The SHRM survey and the construction industry layoffs all beg the question of what will companies do when they face increased workloads with decreased workforces? Put another way, should you worry when employees start working that extra time to meet project and performance goals?
The Fair Labor Standards Act (29 U.S.C. 201, et seq.) is the starting point for many wage and pay claims. At its most basic level, the FLSA requires employers to pay a minimum wage to employees for each hour of work. As a general rule, all job-related activity or time is included in "hours worked," unless specifically excluded by the Act. Non-exempt employees generally are to be paid overtime at not less than 1½ times the regular rate for all work time in excess of 40 hours per week.
Sounds simple enough, right? It gets a little trickier. What all exactly is considered "hours worked"? What if the employee works extra time without approval? Is driving to a job site considered "hours worked"? What about down time waiting for other contractors to finish their portion of a project? Are employees still on the clock under these circumstances?
If an employee voluntarily works extra hours, that time is considered "hours worked" and must be compensated. The reason for the extra work is not important–what matters is whether the employer knew or had reason to know the employee was working extra.
Whether waiting time is "on the clock" is a more fact intensive issue–it is a question of whether the employee was engaged to wait or waiting to be engaged (generally speaking, engaged to wait = hours worked; waiting to be engaged...not typically hours worked).
If an employee is not able to effectively use waiting time for his own purposes, it generally belongs to and is controlled by the employer. Under this scenario, the employee is "engaged to wait." This is the case even if they are just chatting with co-workers, reading a book, or working a crossword puzzle. Periods of being engaged to wait are typically shorter in duration, and the waiting is an integral part of the job (imagine a truck driver waiting while his trailer is being unloaded).
Additionally, an employee who is required to remain on call on the employer's premises or so close that he cannot use the time effectively for his own purposes is working while "on call." An employee who is not required to remain on the employer's premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call.
Of the other side of the coin, periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not "hours worked."
An employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home to work travel which is a normal incident of employment. This is true whether he works at a fixed location or at different job sites. Normal travel from home to work is not worktime.
However, time spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day's work, and must be counted as hours worked regardless of contract, custom, or practice. If an employee normally finishes his work on the premises at 5 p.m. and is sent to another job which he finishes at 8 p.m. and is required to return to his employer's premises arriving at 9 p.m., all of the time is working time. However, if the employee goes home instead of returning to his employer's premises, the travel after 8 p.m. is home-to-work travel and is not hours worked.
At some point, construction companies (and hence, construction workers) will be doing more work with fewer people because of recent downsizings. These examples are just a few of the situations that are commonly encountered in routine wage and hour determinations. It is important to get these matters right, because mistakes in this area can be very costly. Employees can bring an action for the compensation and overtime that they earned, and they are entitled to attorney’s fees. This is certainly one area where an ounce of prevention is much better than a pound of cure.
The world’s leading HR management organization, SHRM (Society for Resource Management) recently published a study that about 72 percent of employees across the nation said they work through lunch, while 70 percent reported working beyond a 40-hour workweek. Only 21 percent of the people polled cited pressure from supervisors as the reason for this. To the contrary, 52 percent claimed the extra work was because of "self-imposed pressure," while 44 percent cited "meeting project or performance goals."
Discussions about overtime and extra work may, on its face, seem a little out of place for a construction industry that has been hit hard financially in the last 18 months and seen plenty of layoffs. Recently, however, there have been trickles of encouraging economic news ("green sprouts," as Fed Chairman Ben Bernanke has called them), and we know that the industry will pick up at some point. The SHRM survey and the construction industry layoffs all beg the question of what will companies do when they face increased workloads with decreased workforces? Put another way, should you worry when employees start working that extra time to meet project and performance goals?
The Fair Labor Standards Act (29 U.S.C. 201, et seq.) is the starting point for many wage and pay claims. At its most basic level, the FLSA requires employers to pay a minimum wage to employees for each hour of work. As a general rule, all job-related activity or time is included in "hours worked," unless specifically excluded by the Act. Non-exempt employees generally are to be paid overtime at not less than 1½ times the regular rate for all work time in excess of 40 hours per week.
Sounds simple enough, right? It gets a little trickier. What all exactly is considered "hours worked"? What if the employee works extra time without approval? Is driving to a job site considered "hours worked"? What about down time waiting for other contractors to finish their portion of a project? Are employees still on the clock under these circumstances?
If an employee voluntarily works extra hours, that time is considered "hours worked" and must be compensated. The reason for the extra work is not important–what matters is whether the employer knew or had reason to know the employee was working extra.
Whether waiting time is "on the clock" is a more fact intensive issue–it is a question of whether the employee was engaged to wait or waiting to be engaged (generally speaking, engaged to wait = hours worked; waiting to be engaged...not typically hours worked).
If an employee is not able to effectively use waiting time for his own purposes, it generally belongs to and is controlled by the employer. Under this scenario, the employee is "engaged to wait." This is the case even if they are just chatting with co-workers, reading a book, or working a crossword puzzle. Periods of being engaged to wait are typically shorter in duration, and the waiting is an integral part of the job (imagine a truck driver waiting while his trailer is being unloaded).
Additionally, an employee who is required to remain on call on the employer's premises or so close that he cannot use the time effectively for his own purposes is working while "on call." An employee who is not required to remain on the employer's premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call.
Of the other side of the coin, periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not "hours worked."
An employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home to work travel which is a normal incident of employment. This is true whether he works at a fixed location or at different job sites. Normal travel from home to work is not worktime.
However, time spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day's work, and must be counted as hours worked regardless of contract, custom, or practice. If an employee normally finishes his work on the premises at 5 p.m. and is sent to another job which he finishes at 8 p.m. and is required to return to his employer's premises arriving at 9 p.m., all of the time is working time. However, if the employee goes home instead of returning to his employer's premises, the travel after 8 p.m. is home-to-work travel and is not hours worked.
At some point, construction companies (and hence, construction workers) will be doing more work with fewer people because of recent downsizings. These examples are just a few of the situations that are commonly encountered in routine wage and hour determinations. It is important to get these matters right, because mistakes in this area can be very costly. Employees can bring an action for the compensation and overtime that they earned, and they are entitled to attorney’s fees. This is certainly one area where an ounce of prevention is much better than a pound of cure.
Tuesday, June 9, 2009
Legislative Wrap-Up: Anti-Indemnity Legislation Fails and Texas Residential Construction Commission To Expire
Another session of the Texas Legislature recently concluded and, as usual, there will be plenty for the political talking heads to chew on for a while. Among the thousands of bills that were proposed this year were a few that were of particular interest to the construction industry.
SB 555 (and its identical companion bill, HB 818) would have effectively eliminated indemnity and additional insured provisions in construction contracts. According to that proposed legislation, provisions in a construction contract would be void and unenforceable if they required an indemnitor to indemnify or defend another party (the "indemnitee") against a claim to the extent that the claim was caused by the negligence or fault of the indemnitee. An "additional insured" provision would also be void to the extent it requires insurance for this same scenario (the indemnitee’s own negligence).
This would have represented a major change in construction contracts, since this basic risk shifting so common in most construction contracts would be fundamentally altered. However, SB555 (and HB818) failed to pass. So the abolition of indemnity will be off the table for at least two years until the next legislative session.
How you felt about SB 555 (and HB 818) probably depended on the nature of your business. Subcontractors, who tended to be ones doing the indemnifying, were generally more supportive of the bill. Owners and developers, who typically benefitted from indemnification, were more opposed to it.
While the bill did not pass this session, it did have some support. And the concept is not a novel one. For example, Oregon has enacted an anti-indemnity statute (Oregon Revised Statute 30.140) similar to what was proposed in SB 555. It will be two years until the next legislative session in Texas, and a lot can happen in the political landscape between now and then (not to mention the construction industry). However, I would not be surprised if this issue comes up again and legislators make another effort at some form of anti-indemnity legislation.
A second issue that was being followed closely was the future of the Texas Residential Construction Commission. As I wrote about here, the Texas Residential Construction Commission ("TRCC") is set to expire later this year. Several lawmakers introduced a number of different bills that would call for various changes to the TRCC. Some called for the continuation of the TRCC but with changes to its procedures; some called for its outright abolition.
At the end of the day, however, nothing passed that would rescue or reform the TRCC. As a result, the Commission will naturally phase out in the months ahead. While the TRCC had some supporters, its detractors (which included most consumers and many builders) seemed to be more numerous and vocal, and it is doubtful the Commission will be missed by many.
This will definitely bring about a change in the legal landscape in the residential construction industry. Without the TRCC, parties are more on their own in their contractual negotiations, and the barriers to litigation will be lifted.
All in all, this legislative session ended like many before it–some things were accomplished while others didn’t quite get finished. And in two years, we’ll do it all over again.
SB 555 (and its identical companion bill, HB 818) would have effectively eliminated indemnity and additional insured provisions in construction contracts. According to that proposed legislation, provisions in a construction contract would be void and unenforceable if they required an indemnitor to indemnify or defend another party (the "indemnitee") against a claim to the extent that the claim was caused by the negligence or fault of the indemnitee. An "additional insured" provision would also be void to the extent it requires insurance for this same scenario (the indemnitee’s own negligence).
This would have represented a major change in construction contracts, since this basic risk shifting so common in most construction contracts would be fundamentally altered. However, SB555 (and HB818) failed to pass. So the abolition of indemnity will be off the table for at least two years until the next legislative session.
How you felt about SB 555 (and HB 818) probably depended on the nature of your business. Subcontractors, who tended to be ones doing the indemnifying, were generally more supportive of the bill. Owners and developers, who typically benefitted from indemnification, were more opposed to it.
While the bill did not pass this session, it did have some support. And the concept is not a novel one. For example, Oregon has enacted an anti-indemnity statute (Oregon Revised Statute 30.140) similar to what was proposed in SB 555. It will be two years until the next legislative session in Texas, and a lot can happen in the political landscape between now and then (not to mention the construction industry). However, I would not be surprised if this issue comes up again and legislators make another effort at some form of anti-indemnity legislation.
A second issue that was being followed closely was the future of the Texas Residential Construction Commission. As I wrote about here, the Texas Residential Construction Commission ("TRCC") is set to expire later this year. Several lawmakers introduced a number of different bills that would call for various changes to the TRCC. Some called for the continuation of the TRCC but with changes to its procedures; some called for its outright abolition.
At the end of the day, however, nothing passed that would rescue or reform the TRCC. As a result, the Commission will naturally phase out in the months ahead. While the TRCC had some supporters, its detractors (which included most consumers and many builders) seemed to be more numerous and vocal, and it is doubtful the Commission will be missed by many.
This will definitely bring about a change in the legal landscape in the residential construction industry. Without the TRCC, parties are more on their own in their contractual negotiations, and the barriers to litigation will be lifted.
All in all, this legislative session ended like many before it–some things were accomplished while others didn’t quite get finished. And in two years, we’ll do it all over again.
Monday, May 25, 2009
Hidden Land Mines: Identifying (and Managing) Risk in LEED/Green Building Projects
Anyone in the construction industry, particularly those involved in LEED/green building projects, has probably realized that it not a matter of "if" green building litigation will come, but "when" and "how." To date, green building litigation has been pretty infrequent, but anticipating where litigation will come from will be an important step in avoiding it.
One widespread school of thought has been that green building litigation will arise from projects that simply do not obtain the LEED requirements that are contracted for. Green or LEED-oriented buildings are much more costly to build than conventional buildings, and owners and developers pay a premium for this LEED branding. So they are clearly not going to be happy if a project does not obtain the certification that was expected. As with many construction defect or design defect cases, litigation may arise for breaches of contract or breaches of warranty.
However, this may not be the only theory of liability in the green building arena. A recent case out of Maryland, Shaw Development v. Southern Builders, suggests that the scope of potential liability may be broader.
The Shaw case arose in connection with a condo project in Maryland that included a number of green design features that were intended to support a LEED Silver application. The owner sued the general contractor seeking, among other things, over $600,000 in lost tax credits under a state green building program.
Maryland had provisions that provided tax credits to owners for building eco-friendly buildings. The procedure to receive this credit was to initially apply for a sort of preliminary certification of the project. The project would be built and then, when completed, it would be evaluated for final approval. The preliminary certification, however, contained an expiration date, and the condo project at issue in Shaw was not completed before that project’s preliminary certification expired.
The lawsuit in Shaw did not specify exactly how the general contractor was to be liable, and the case settled prior to trial so there is no precedential value either. However, it is quite possible that the design actually was adequate–the project was just not delivered in time to qualify for the tax credits.
So what is the lesson to be learned from Shaw? Actually, the key in all green building contracts, particularly ones that contemplate LEED certifications and/or green-based tax credits (or even service provider discounts, such as electricity) is to define and clarify risk and set out which party will be liable for certain failures. That means being sure your contract actually fits the project and isn’t just a blanket form (Note: the contract at issue in Shaw was an AIA form but clearly did not address these issues).
Assuming the Shaw facts–that a project failed to receive significant tax credits because it was completed late–who would be liable for those lost tax credits? Would it be the general contractor? The owner? The architect or engineer? What if the project was delayed because of unforeseeably bad weather? What if it was a subcontractor’s mistakes? Or the engineer’s delay in approving modifications to project specs? An electrician who installed bad wiring had no idea his work could result in the loss of a large tax credit–is it fair to hold him responsible?
The shifting of liability should be expressly laid out in the contract documents, including who is liable if a project fails to obtain certain certifications. By clearly defining these items, parties may be able to avoid the litigation that comes with uncertainty in contract provisions. At a minimum, however, parties will put themselves in a better position if litigation does in fact arise.
One widespread school of thought has been that green building litigation will arise from projects that simply do not obtain the LEED requirements that are contracted for. Green or LEED-oriented buildings are much more costly to build than conventional buildings, and owners and developers pay a premium for this LEED branding. So they are clearly not going to be happy if a project does not obtain the certification that was expected. As with many construction defect or design defect cases, litigation may arise for breaches of contract or breaches of warranty.
However, this may not be the only theory of liability in the green building arena. A recent case out of Maryland, Shaw Development v. Southern Builders, suggests that the scope of potential liability may be broader.
The Shaw case arose in connection with a condo project in Maryland that included a number of green design features that were intended to support a LEED Silver application. The owner sued the general contractor seeking, among other things, over $600,000 in lost tax credits under a state green building program.
Maryland had provisions that provided tax credits to owners for building eco-friendly buildings. The procedure to receive this credit was to initially apply for a sort of preliminary certification of the project. The project would be built and then, when completed, it would be evaluated for final approval. The preliminary certification, however, contained an expiration date, and the condo project at issue in Shaw was not completed before that project’s preliminary certification expired.
The lawsuit in Shaw did not specify exactly how the general contractor was to be liable, and the case settled prior to trial so there is no precedential value either. However, it is quite possible that the design actually was adequate–the project was just not delivered in time to qualify for the tax credits.
So what is the lesson to be learned from Shaw? Actually, the key in all green building contracts, particularly ones that contemplate LEED certifications and/or green-based tax credits (or even service provider discounts, such as electricity) is to define and clarify risk and set out which party will be liable for certain failures. That means being sure your contract actually fits the project and isn’t just a blanket form (Note: the contract at issue in Shaw was an AIA form but clearly did not address these issues).
Assuming the Shaw facts–that a project failed to receive significant tax credits because it was completed late–who would be liable for those lost tax credits? Would it be the general contractor? The owner? The architect or engineer? What if the project was delayed because of unforeseeably bad weather? What if it was a subcontractor’s mistakes? Or the engineer’s delay in approving modifications to project specs? An electrician who installed bad wiring had no idea his work could result in the loss of a large tax credit–is it fair to hold him responsible?
The shifting of liability should be expressly laid out in the contract documents, including who is liable if a project fails to obtain certain certifications. By clearly defining these items, parties may be able to avoid the litigation that comes with uncertainty in contract provisions. At a minimum, however, parties will put themselves in a better position if litigation does in fact arise.
Monday, May 11, 2009
Chinese Drywall and Statutory Indemnity: The Intersection of Construction Law and Products Liability
Anyone who has paid attention to construction news in the last 6 months knows that one of the hot topics has been Chinese drywall. According to the reports, tainted drywall manufactured in China emits potentially toxic chemicals including carbon disulfide, carbonyl sulfide, and hydrogen sulfide. In larger amounts, these emissions may create a health risk and the defective drywall emits a sulfur-like odor. These toxic materials also may corrode metals within a building, damaging wires, pipes, air conditioners, electronic equipment, etc.
As a result of these defects, Chinese drywall problems have led to a flurry of litigation. If the drywall is in fact defective, the manufacturers may be faced with liability. However, when litigation arises, you can rest assured that the manufacturer will not be the only named defendant. At a minimum, the builder would likely be named as a co-defendant in the lawsuit. Suppliers would probably be included as defendants as well. In fact, more than likely, every party from the painters up the chain to the manufacturers would be named in a lawsuit.
What if your company had no idea it was dealing with defective drywall but still finds itself stuck in the middle of litigation? What if your company didn’t know it was supplying a bad product. What if you just installed the materials your long-time supplier provided? Is there any protection for you in this situation, or does your company simply have to live with a big target on its back?
While there has certainly been an increase in tainted Chinese drywall litigation, the good news for builders and those in the construction industry is that there may be statutory indemnity available to pass along the costs of litigation to the manufacturers. In Texas, builders have Chapter 82 of the Texas Civil Practice & Remedies Code to lean on. In short, Chapter 82 (more specifically Section 82.002) requires a manufacturer to indemnify and hold harmless a seller against a loss arising out of a "products liability action," except for any loss caused by the seller’s own negligence, intentional misconduct, or negligently modifying or altering the product.
For purposes of this provision, a "seller" is a person who is engaged in the business of distributing or otherwise placing into the stream of commerce a product or any component part. The term "seller" is not limited to the traditional role of wholesale distributor or retailer that you would typically associate with the term. A "products liability action" is any action against a manufacturer or seller for recovery of damages arising out of personal injury, death, or property damage allegedly caused by a defective product.
The statutory indemnity required by Chapter 82 of the Texas Civil Practice & Remedies Code applies regardless of the way in which the action is concluded and is in addition to any other duties to indemnity (such as a contractual duty). This indemnity also includes attorney’s fees and court costs.
"Indemnity is great, but I still don’t want a judgment against my company," you say. You may still be in luck. Generally speaking, a seller that did not manufacture a product is not liable for damages related to that product unless the claimant proves:
Product liability law takes into consideration the innocent seller and carves out protections for them so they are not liable for defective products they had no real hand in creating or warning about. But this indemnity is not automatic–it should be formally requested of the manufacturer within a reasonable time after the claim. Even then, the would-be indemnitor can deny the request, forcing the innocent seller to seek enforcement through litigation. The good news, however, is that attorneys’ fees are typically recoverable when enforcing an indemnity request (if successful).
Even though products liability and construction law aren’t typically thought of together, the current Chinese drywall situation shows that there can be an overlap of these two areas of law. It is important to know your rights and obligations so you are not left liable for someone else’s mistake.
As a result of these defects, Chinese drywall problems have led to a flurry of litigation. If the drywall is in fact defective, the manufacturers may be faced with liability. However, when litigation arises, you can rest assured that the manufacturer will not be the only named defendant. At a minimum, the builder would likely be named as a co-defendant in the lawsuit. Suppliers would probably be included as defendants as well. In fact, more than likely, every party from the painters up the chain to the manufacturers would be named in a lawsuit.
What if your company had no idea it was dealing with defective drywall but still finds itself stuck in the middle of litigation? What if your company didn’t know it was supplying a bad product. What if you just installed the materials your long-time supplier provided? Is there any protection for you in this situation, or does your company simply have to live with a big target on its back?
While there has certainly been an increase in tainted Chinese drywall litigation, the good news for builders and those in the construction industry is that there may be statutory indemnity available to pass along the costs of litigation to the manufacturers. In Texas, builders have Chapter 82 of the Texas Civil Practice & Remedies Code to lean on. In short, Chapter 82 (more specifically Section 82.002) requires a manufacturer to indemnify and hold harmless a seller against a loss arising out of a "products liability action," except for any loss caused by the seller’s own negligence, intentional misconduct, or negligently modifying or altering the product.
For purposes of this provision, a "seller" is a person who is engaged in the business of distributing or otherwise placing into the stream of commerce a product or any component part. The term "seller" is not limited to the traditional role of wholesale distributor or retailer that you would typically associate with the term. A "products liability action" is any action against a manufacturer or seller for recovery of damages arising out of personal injury, death, or property damage allegedly caused by a defective product.
The statutory indemnity required by Chapter 82 of the Texas Civil Practice & Remedies Code applies regardless of the way in which the action is concluded and is in addition to any other duties to indemnity (such as a contractual duty). This indemnity also includes attorney’s fees and court costs.
"Indemnity is great, but I still don’t want a judgment against my company," you say. You may still be in luck. Generally speaking, a seller that did not manufacture a product is not liable for damages related to that product unless the claimant proves:
1) that the seller participated in the design of the product;
2) that the seller altered or modified the product and the claimant’s harm resulted from that alteration or modification;
3) that the seller installed the product, or had the product installed, on another product and the claimant’s harm resulted from the product’s installation onto the assembled product;
4) that:
a) the seller actually knew of a defect to the product at the time the seller supplied the product; and
b) the claimant’s harm resulted from the defect;or
5) that the manufacturer of the product is:
a) insolvent; or
b) not subject to the jurisdiction of the court
So how do these statutory provisions actually translate into indemnity or liability avoidance for tainted Chinese drywall claims?
If you’re the builder and you’ve been sued because tainted drywall caused damage to a structure (or its components) or personal injury, you can probably seek indemnity from the drywall manufacturer (assuming the builder was not involved in the design or warnings on the product). Similarly, if you’re a painter or sheetrocker who simply installed the materials without any material alteration, then you too would probably be able to seek indemnity from the manufacturer. In either situation, there's a decent chance your company would probably not be liable if it did not know about the allegedly defective product (indemnity notwithstanding).Product liability law takes into consideration the innocent seller and carves out protections for them so they are not liable for defective products they had no real hand in creating or warning about. But this indemnity is not automatic–it should be formally requested of the manufacturer within a reasonable time after the claim. Even then, the would-be indemnitor can deny the request, forcing the innocent seller to seek enforcement through litigation. The good news, however, is that attorneys’ fees are typically recoverable when enforcing an indemnity request (if successful).
Even though products liability and construction law aren’t typically thought of together, the current Chinese drywall situation shows that there can be an overlap of these two areas of law. It is important to know your rights and obligations so you are not left liable for someone else’s mistake.
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