Charles P. Keller and Richard G. Erickson | Snell & Wilmer | January 28, 2019
Construction accidents are inevitable, even for clients who implement and enforce a meticulous safety plan on a project. Despite best intentions and protections afforded to contractors, employees, subcontractors, vendors and property, construction accidents happen. We, therefore, try to advise clients about the best prevention, response and defense protocol that both demonstrates commitment to safe construction practices and honors due process and other rights associated with matters of civil and criminal liability when a construction accident occurs. Here are just a couple of key questions to consider.
What Are the Boundaries to Investigating a Construction Accident?
The obligation to investigate is, for the most part, set by your internal safety plan that accounts for and encompasses any local and/or federal regulatory requirements. These requirements are very familiar to small and large builders and contractors, who devote the required attention to their safety policies and procedures, and to training their employees and seeking compliance through regular, periodic safety inspections. Proper training and documented workplace inspections are usually the first inquiry to any investigation, so a company’s safety plan should be a high priority well before the first shovel hits the ground.
In addition, safety directors, managers and on-site safety representatives are oftentimes the first management representatives on the scene of an accident and are the key players who are initially trusted to decide when, what, why and who to investigate. Not every accident is worthy of a formal, written investigation, so these safety representatives are instrumental in setting the boundaries before company assets are dedicated to drafting a written or other record of what happened and how to prevent another accident. These types of incidents may necessitate the on-site employee to immediately contact in-house or outside counsel. Additionally, these types of incidents may also trigger several protocols necessary to preserve evidence, to videotape or photograph the scene and to outline steps to be followed by employee witnesses before interviews are allowed by law enforcement or government agency representatives. These boundaries are best set and identified in the company’s safety plan or in a separate accident investigation protocol and are vital to exercising command and control over the investigation.
Is There a Way to Make Internal Investigations Confidential?
The short answer is, yes, there are ways a company can designate communications and reports incidental to an accident investigation as confidential. However, this usually, if not always, requires preparation and communication of the report to legal counsel. Because the attorney-client privilege afforded to in-house legal counsel may not be as protective as the attorney-client privilege afforded to outside counsel, and because in-house counsel may not concentrate in the safety and OSHA areas, it may be safer to communicate in writing to outside counsel about the investigation. The attorney-client privilege ideally protects these communications and the documentation flowing from the investigation from, among other things, discovery in litigation and government investigations.
Federal OSHA, unlike Cal-OSHA, does not mandate that accident investigations are performed. While most companies do perform accident investigations, it may be wise to commit, in writing in your safety policies, only to perform written accident reports in certain circumstances. Examples might be a fatal accident, an OSHA reportable injury or illness, a significant injury or illness possibly caused by you to another employer’s employee or an accident causing property damage in excess of a certain predetermined monetary value.
In general, initially, communications to outside counsel about an accident should be expressly made for the purpose of giving the safety representatives at the scene direction regarding preserving the scene, spoliation issues, protecting your witnesses, obtaining evidence and controlling the interaction with governmental investigators. Additionally, outside counsel can later advise regarding tendering a liability or indemnity claim and preparing materials for litigation stemming from the construction accident. Consider emphasizing the intention of the privileged communications with titles or subject lines making it clear the document is for the benefit of legal advice from outside counsel (something as obvious as “ATTORNEY-CLIENT PRIVILEGED WORK-PRODUCT COMMUNICATION TO OUTSIDE COUNSEL IN ANTICIPATION OF LITIGATION AND TO PREPARE NECESSARY CLAIM OR RELATED MATERIALS”). Simply copying outside counsel on an email or other correspondence with key players in the company is generally a mistake. It may be wise to always include outside counsel directly in communications about the investigation and protect the overarching premise that outside counsel’s advice is necessary for preparing for claims and litigation arising from the accident.
When Is the Ideal Time to Involve Outside Counsel in the Investigation?
Involve outside counsel in a construction accident investigation sooner rather than later. Despite the impression that incurring attorneys’ fees early on is premature and more expensive, it may actually be more cost-effective to make sure outside counsel is up to speed right away rather than spending time and more money to catch up later on. Involving outside counsel early also allows the company a more immediate means of communicating confidentially about the accident. Moreover, outside counsel can ensure that the governmental investigation is being conducted according to their procedures and the company and its employees are being afforded their proper legal rights. Also, it may be more difficult to claim attorney-client privilege with in-house counsel who may have less of a role in preparing the company for litigation arising from the accident. For example, if liability or other insurance will cover a claim and its defense, in-house counsel may have little to no involvement with the litigation or in responding to government agencies like OSHA.
Outside counsel may be preferable for many reasons. First, as mentioned above, an outside legal counsel who concentrates on OSHA matters has familiarity with the government investigators. Also, such counsel knows how best to protect the employees during the regulatory interview process and protect the company from unintentionally prejudicing its own case. Additionally, outside counsel can often act as an intermediary for the company when demands are being made upon the company from many sources. Besides law enforcement representatives and OSHA investigators, insurance representatives and claim investigators quickly descend on the scene. Construction accidents involving property damage and personal injury or death additionally trigger a rush to broadly target liability insurance from all potential sources. Subrogation lawyers representing the primary insurer often show up on site at the same time government investigators are making their record of the accident. Second, despite workers’ compensation immunity typically applicable to the injured employees of the company, personal injury lawyers will try to identify any number of other possible tortfeasors who may have some liability for causing the same injuries. A company may also need the advice of outside counsel to address instantaneous media reports of the accident or to respond to inquiries by news agencies. These legal gymnastics that occur immediately after a construction accident may better be handled by outside counsel so the company can deal internally with comforting injured employees, conducting its investigation, maintaining daily operations and keeping the construction project on track.