What Points Trigger You To Choose The Right Construction Defect Attorney

In fact, the very nature of a construction project makes it liable for risks and liabilities for those individuals involved in the project. Among a range of people involved in a project include financial institutions, business owners, architects, developers, engineers, contractors and even subcontractors. Well, a construction defect could include design,material and even poor workmanship that is likely to cause injury to either the inhabitants or the people involved in the project.

Yes, I would say that if you fall under any of the above mentioned categories, possibilities are that you require the services of a construction defect attorney. But not all legal professionals are alike, what differentiates the good from the bad is experience and knowledge. In simple words, construction law is a highly specialized branch and actually requires good knowledge about the different rules and regulations governing it. But how do you find a competent construction defect attorney in your area? Here are several tips to find a competent lawyer.

The very thing to do is to find an attorney who specializes in Construction Law. A legal professional solely dedicated to construction litigations not only keeps himself updated on various different rules and regulations governing construction law, but is also abreast about various different changes affecting the industry in general. This is something that also allows him to understand the problems faced by professionals in the industry.

Experience is the most important thing to count when you are opting to a construction defect attorney. It is highly imperative that the lawyer has experience in arbitration, and mediation along with litigation. And, of course, issues related to large projects or complex disputes involving several parties are usually handled through arbitration and mediation, rather than litigation. In such circumstances a construction defect attorney is a person who can represent your company in the various state and federal courts.

Apart from counting experience and subject specialization, it is really important that the legal professional is competent enough to help you to understand the risks and consequences involved in the project. He/she should be able to explain clearly and appropriately about various different aspects in the case and also discuss the options available before you.

Many legal professionals have a clear billing process. This may even include charges for summoning expert witnesses,travel charges, postageetc. It is actually good to get a clear idea about the charges involved to avoid future surprises. The best part is that in this profession, cheap and best are oxymorons and thus do not even think that a well-qualified and experienced attorney will offer services at cheap rates. But, of course, the legal professional should be reasonable enough and should provide services that justify his charges.

On a final note, with all these pointers spotting a competent construction defect attorney in your area should not be a problem at all.

via What Points Trigger You To Choose The Right Construction Defect Attorney.

Safety Check: Nail Gun Safety Tips

Pallet Enterprise – December 1, 2012

Safety tips identify ways that pallet companies can reduce nail gun related accidents. New OSHA guide offers lessons for pallet builders. 

                It’s hard to find a pallet plant without nail guns. But it can be easy to take them for granted and create unsafe working conditions in the process. The Occupational Safety and Health Administration (OSHA) has developed a nail gun safety guide that is available in both English and Spanish versions. Although designed for the commercial construction industry, the guide has many important lessons for pallet companies too.

                One thing the guide suggests is that companies use nail tools with a full sequential trigger. OSHA claims, “The full sequential trigger is always the safest trigger mechanism for the job. It reduces the risk of unintentional nail discharge and double fires—including injuries from bumping into co-workers… At a minimum, provide full sequential trigger nailers for placement work where the lumber needs to be held in place by hand. Unintended nail discharge is more likely to lead to a hand or arm injury for placement work compared to flat work, where the lumber does not need to be held in place by hand.”

                The problem is that full sequential triggers can significantly affect the productivity of workers, which explains why most pallet shops don’t use this safety device. K.G. Sims, a fastening engineering and sales consultant, said, “A full sequential trigger changes how fast the tool can cycle as well as how you hold and use the tool…This added safety device can cut productivity by 35-40%.”

                “Bump firing has become popular in the pallet industry. It’s strictly a speed issue – the difference between firing a gun compared to a machine gun,” said George Skarich, executive vice president of sales, for Mid Continent Nail Corp. Using a full sequential trigger makes bump firing impossible.

                Skarich added, “OSHA will say bump firing is more dangerous. But the guys in the plants will just tell you that’s just OSHA being OSHA. The faster you go, the higher the likelihood of something going wrong. At the end of the day, the guys who are causing problems are the ones who aren’t paying attention. There is nothing inherently wrong with bump firing if you are smart and safe about how you handle a tool.”

                Despite the speed reduction, Sims did say that some companies have added full sequential triggers if they had employee safety problems and wanted to reduce legal exposure. Adding extra safety devices can create an extra hassle for management if workers try to remove or disable these devices. Some of the most common examples of workers trying to bypass the safety system are: (1) removing the spring from the safety yoke, (2) removing the spring and tying the yoke up in the actuated position, and (3) tying up the trigger lever in the actuated position. 

                Sims added that tool and fastener suppliers are obligated to fix any problems with safety devices they find in the course of normal or routine repair and maintenance they may perform on tools they loan or agree to service for the customer, which can add extra cost to the process if employees are always disabling them. “The hardest thing a company faces when trying to institute tougher safety devices and practices is to hold employees accountable, especially top performers who will want to bypass safety protocols,” he said.

                According to OSHA, nail gun injuries are responsible for approximately 37,000 emergency room visits each year. Although this tool is easy to operate and increases productivity, injuries occur as a result of unintended nail discharge; nails that bounce off a hard surface or miss the work piece and become airborne; and disabling the gun’s safety features, among other causes.

                To order these or many other safety educational materials, call OSHA at 202/693-1999.

Six Steps to Nail Gun Safety

1. Inspect and Monitor Safety Devices – Make sure that all safety devices are working properly and not disabled. Hold employees accountable and make sure that they do not bypass safety devices, such as the spring loaded safety yolk that comes standard on most nail guns used in the pallet industry. Employees should always check the nail guns before using them to ensure there are no obvious signs of a problem.

2. Provide Training – Both new and experienced workers can benefit from safety training to learn about the causes of nail gun injuries and specific steps to reduce them. Be sure that training is provided in a manner that employees can understand, such as Spanish for workers whose primary language is Spanish. Instruction should cover how the gun works, main causes of injuries, loading and firing the gun, air compressor operation and settings, how to recognize and approach ricochet-prone work surfaces, required safety equipment, and what to do when a nail gun malfunctions. Also, cover any company-specific policies or practices.

3. Establish Nail Gun Work Procedures – Your company should develop procedures and make sure that they are followed. Failure to comply with those policies should not go uncorrected. For example, you may want to design work stations to include a side mount where guns can be placed while not in use. Set up operations so that workers are not in the line of fire from nail guns being operated by co-workers. Keep hands at least 12 inches away from the nailing point at all times. Always shoot nail guns away from your body and away from co-workers.

4. Provide Personal Protective Equipment (PPE) – Safety shoes, which help protect workers’ toes from nail gun injuries, are a good idea as well as compliant hearing and eye protection. Check the applicable regulations to determine what is required by law.

5. Disconnect Air Pressure – Always disconnect the compressed air when loading or unloading fasteners, leaving the nail gun unattended, passing the device to a co-worker, clearing jammed nails or performing any other maintenance on the nail gun.

6. Encourage Incident Reporting – Studies show that many nail gun injuries go unreported. Employers should ensure that their policies and practices encourage reporting of nail gun injuries or incidents. Reporting helps ensure that employees get medical attention as well as employees learn the proper way to use the tools at their disposal.  If you have a safety incentive program, be sure that it does not discourage workers from reporting injuries. Employers that intentionally under report work-related injuries will be in violation of OSHA’s injury and illness record keeping regulation.

Pallet Enterprise Article – Safety Check: Nail Gun Safety Tips.

The Early Bird Gets the Worm. File Your Super Storm Sandy Claim As Soon As Possible!

Joseph A. Porcelli – November 21, 2012

Good communication with your insurance company is incredibly important when filing a property damage claim.  While the statute of limitations on property damage claims may be as long as three (3) years in some states, be sure to check your insurance policy to see if there is a stated time limit on claims submission.

A good rule of thumb is to file a claim under any insurance policy as soon as possible.  It is wise to notify your insurance company immediately after the damage occurs.  This is an informal process and you can file a claim over the telephone with your local agent or through the toll-free claims number in your insurance policy.  Be certain that you note this and all telephone conversations in a diary so you can keep track of your claim status.  Additionally, send a letter or email to confirm your property damage claim to your insurer; do not rely on the telephone conversation alone.  Failure to give timely notice to your insurance carrier may result in the denial of your claim or delay in receiving reimbursement for your damages.

It is equally important to create a paper trail (i.e. confirm any representations or statements made by your insurance company adjuster or other personnel over the telephone or in person by sending confirmation email or letter).  When writing, make sure you use good grammar, punctuation, spelling and capitalization when needed as well as provide your policy number and claim number in all of your written correspondence.  It goes without staying that you should promptly answer any letters or reasonable requests sent by your insurance carrier.

Be very proactive: document your damages in photographs or video, even from your cell phone.  The more written or photogenic documentation you have, the better your property claim will be document.  This will also assist in handling your property damage claim in a timely manner with the maximum recovery possible.

In your conversations with your claim adjuster, be polite, persevering and prompt.  Do not be under the mistaken impression that your claims adjuster is your friend, even if he or she seems very outgoing and sympathetic to your property damage claim.  Remember this is a business transaction and you must keep it professional.  Do not take your anger out on or vent your frustrations on the claims adjuster since he or she carries significant power during the claim adjudication process.

Although Super Storm Sandy has clearly caused billions of dollars of damages, there are likely instances where insurance claims will not be promptly or adequately paid or worse case, even denied outright.  It then becomes necessary for a policyholder to fight their own insurance carrier to protect his or her legal rights based upon the insurance policy they purchased.

via Property Damage Blog: The Early Bird Gets the Worm. File Your Super Storm Sandy Claim As Soon As Possible!.

Does OSHA’s SHARP Program Really Excuse Firms from Safety Inspections?

Aaron Spencer – December 10, 2012

An electrical contractor in North Bend is the latest company to earn a safety recognition through the Oregon Occupational Safety and Health Administrations SHARP program.

SHARP, or Safety and Health Achievement Recognition Program, teaches employers to be safer in the workplace. SHARP status also excuses a firm’s worksites from OSHA programmed inspections while its SHARP certification is valid.

The newest company to join about 65 other Oregon firms in the program is Reese Electric.

“Gaining SHARP recognition has been quite a process and helped us focus on safety in all areas – not just project sites, but right here at our home offices and shops,” owner Randy Rema said. “All of our employees are proud of the role they have played in earning this recognition and work every day to maintain it.”

But does SHARP totally excuse firms from inspection? Participation in SHARP does not eliminate regulatory enforcement – the exemption for SHARP participants is limited. Employees retain all workplace safety and health rights contained in the Oregon Safe Employment Act.

Oregon employers that have been in business for more than one year are eligible to apply for SHARP regardless of size or type of business.

via Does OSHA’s SHARP program really excuse firms from safety inspections? | Daily Blog.

Completed and Accepted Doctrine Extended to Architects

Garret Murai – November 26, 2012

Architects have one more reason to celebrate this holiday season. In a case decided this past month, the California Court of Appeals held that architects are protected under what is referred to as the “completed and accepted” doctrine, from liability arising from injuries caused by patent (i.e., obvious and apparent) defects once work is accepted by the owner.

Background

In 1996, the California Court of Appeals for the Second District – bucking a trend in California cases which had, since the early 1960s, viewed contractors in the same light as sellers of goods – i.e., liable to anyone who might foreseeably be endangered by their negligence – adopted the completed and accepted doctrine in the case Sanchez v. Swinerton & Walberg Co., 47 Cal.App.4th 1461 (1996).

Under the completed and accepted doctrine, once an owner accepts a contractor’s work, the contractor’s liability for injuries resulting from patent defects ends.

In a later case, Jones v. P.S. Development Co., Inc., 166 Cal.App.4th 707 (2008), the Second District expanded the completed and accepted doctrine to both private and public works projects as well as to portions of work accepted by an owner when the contractor is continuing to work on other parts of the project.

The Neiman Case

In the most recent case coming out of the Second District, Neiman v. Leo A. Daly Company, Case No B234537 (October 30, 2012), the California Court of Appeals has now extended the completed and accepted doctrine to architects.

In Neiman, Leo A. Daly Company (“LAD”) entered into an agreement with the Santa Monica Community College District (“District”) in 2004 to design and oversee the construction of a theater arts building. Construction of the main theater stage (“Main Stage”) was completed on June 15, 2006. Thereafter, on May 30, 2008, Ellen Neiman was injured in the Main Stage as she descended a flight of stairs.

Neiman sued and named LAD as a defendant, alleging that LAD had “negligently, recklessly and carelessly designed, manufactured, lit, constructed, inspected, managed and maintained the Main Stage” by failing “to adequately and sufficiently light the stairway of the Main Stage and to properly mark and delineate the stairs of the Main Stage” which caused her to fall and injure herself.

LAD later filed a motion for summary judgment in which it argued that it could not be liable for Neiman’s injuries under the completed and accepted doctrine. According to LAD, the Main Stage was completed and accepted by the District in June 2006, long before Neiman’s accident in 2008, and the alleged defects were patent and apparent by reasonable inspection by the District.  LAD, did, however,  concede that the plans had called for contrast marking stripes on the stairs which were never applied. The trial court granted LAD’s motion for summary judgment.

On appeal, Neiman argued that whether the lack of contrast marking stripes was a patent or latent (i.e., not obvious or apparent) defect was an issue to be determined at trial and was not appropriately raised by way of a motion for summary judgment. The Court of Appeals acknowledged that the completed and accepted doctrine does not apply to latent defects:

[W]hen a contractor completes work that is accepted by the owner, the contractor is not liable to third parties injured as a result of the condition of the work, even if the contractor was negligent in performing the contract, unless the defect in the work was latent or concealed. [citation omitted.] The rationale for this doctrine is that an owner has a duty to inspect the work and ascertain its safety, and thus the owner’s acceptance of the work shifts liability for its safety to the owner, provided that a reasonable inspection would disclose the defect. [citations omitted] Stated another way, “when the owner has accepted a structure from the contractor, the owner’s failure to attempt to remedy an obviously dangerous defect is an intervening cause for which the contractor is not liable.” [citation omitted.] The doctrine applies to patent defects, but not latent defects. “If an owner, fulfilling the duty of inspection, cannot discover the defect, then the owner cannot effectively represent to the world that the construction is sufficient; he lacks adequate information to do so.” [citation omitted.]

However, explained the Court, while it was undisputed that the plans had called for contrast marking stripes on the stairs, the absence of the stripes was “obvious and apparent to any reasonably observant person” and was not a latent defect as a matter of law:

There is no evidence indicating [that the District], who contracted for the work and participated in the walk-through on June 15, 2006, did not have access to the plans and specifications. The alleged defect is “patent as matter of law; it would be discovered by an inspection the owner would make in the exercise of ordinary care and prudence” [citation omitted], in ensuring that obvious safety measures called for in the plans and specifications were completed. This is not a concealed or hidden defect – a latent defect – which the owner would not discover by reasonable inspection. [citation omitted.]

Neiman next argued that whether the Main Stage was “completed” was also an issue to be determined at trial and not by  summary judgment.  According to Neiman, the project was never completed because the contrast marking stripes were required by the plans, LAD did not make a final observation and certification that the project complied with the plans, and LAD did not submit as-built drawings showing the absence of the striping as required under its contract.  The Court disagreed, stating that whether or not LAD was negligent in performing its contract “is irrelevant in application of the completed and accepted doctrine.”

Finally, Neiman argued that the completed and accepted doctrine does not apply to architects. Again, the Court disagreed, stating that “Neiman has not cited any authority holding that the completed and accepted doctrine does not apply to architects.”

Conclusion

Although the Sanchez, Jones and Neiman line of cases all come out of the Second District Court of Appeals, and sophisticated plaintiffs counsel may argue that they should be limited to cases within the jurisdiction of the Second District and that they are arguably contrary to an earlier California Supreme Court decision in Stewart v. Cox, 55 Cal.2d 857 (1961) which held that contractors should be liable to third-parties for negligence which causes a reasonably foreseeable danger to them, Sanchez and Jones have never been overturned, and with the addition of Neiman as additional citable precedent, it appears that establishment of the completed and accepted doctrine throughout California is well underway.

Completed and Accepted Doctrine Extended to Architects | California Construction Law Blog.