BINGO Word of the Day – May 31st

The current game is now: Lines BINGO – 5 spaces in a row making a horizontal, diagonal, or vertical line.

 

Today’s Useless Fact:  It is said that grapefruit got its name because it grows like grapes in clusters.  One cluster can have up to 25 grapefruits.

 

Here is today’s word:

 

GREEN ENERGY

 

Previously called words:

BRIAN MOFFITT

EXPERT WITNESS

INSURANCE CLAIMS

MERLIN TAYLOR

ROOF

ALEX WOITSCHECK

COMMERCIAL CONSTRUCTION

ELECTRICAL

OSHA Plans to Comb the Construction Industry

Michael V. Abcarian – May 8, 2013

Employers can expect the Occupational Safety and Health Administration to implement various regulatory initiatives this year that will significantly impact how employers, including construction companies, do business. With President Obama in leadership for another term, many new and stricter workplace safety initiatives and regulations which have been on hold due to last year’s election are now back on the table.

Attorneys who advise and counsel employers in the construction industry need to be aware that 2013 will be another year in which occupational safety and health needs to be addressed considering three of OSHA’s top 10 most frequently cited violations are specifically tied to the construction industry — including fall protection, which is one of the most significant violations.

Combine a bigger budget with an increased number of enforcement personnel, and OSHA is as fortified as ever to deal with employers who do not appropriately deal with workplace safety issues. It is anticipated that new regulations, many of which have been in the works for years, will likely come to fruition this year or next.

Heightened enforcement, more citations and increased penalties are a certainty as OSHA ups the ante for employers who are not working safely or ignore safety standards.

Because the construction industry always seems to be in OSHA’s crosshairs, attorneys must advise employers to stay abreast of the latest regulatory agenda. When an employer is cited by OSHA for noncompliance of a workplace safety regulation, claiming lack of knowledge won’t get them very far.

via OSHA plans to comb the construction industry – Lexology.

BINGO Word of the Day – May 30th

The current game is now: Lines BINGO – 5 spaces in a row making a horizontal, diagonal, or vertical line.

 

Today’s Useless Fact:  The average person falls asleep in seven minutes.

 

Here is today’s word:

 

ELECTRICAL

 

Previously called words:

BRIAN MOFFITT

EXPERT WITNESS

INSURANCE CLAIMS

MERLIN TAYLOR

ROOF

ALEX WOITSCHECK

COMMERCIAL CONSTRUCTION

Some Courts Say That Owners Cannot Sue Their Architects And Consultants For Designing Noncompliant Facilities

Minh N. Vu – May 21, 2013

Owners of commercial facilities and developers of multifamily housing should take note of an alarming trend:  Some courts are not allowing owners and developers to sue their architects and consultants for designing facilities that do not comply Americans with Disabilities Act (ADA) and Fair Housing Act (FHA) accessibility requirements.

The most recent case on this subject is Rolf Jensen & Assocs. v. Dist. Ct., 282 P.3d 743 (Nev. 2012).  The casino owner sued its ADA consultant under their contract and state law after the Justice Department required the owner to make more than $20 million in retrofits to comply with ADA requirements.  The Nevada Supreme Court dismissed the owner’s claims, finding that allowing these claims to move forward would frustrate the objectives of the ADA.  The court said that allowing an owner to “completely insulate itself” from liability for an ADA or FHA violation by contract or through state common law principles would diminish an owner’s incentive to ensure compliance.  The court emphasized that owners have a non-delegable duty to comply with these statutes that cannot be shifted to third parties.  Although the court did acknowledge that the ADA explicitly allows landlords and tenants to allocate responsibility for violations among themselves, it viewed this explicit exemption as further proof that there was no Congressional intent to allow such allocation between owners and architects/designers.

The Federal Court of Appeals for the Fourth Circuit reached the same conclusion in Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597 (4th Cir. 2010).  The multifamily housing developer there sued the architect of 15 apartment communities which needed over $2.5 million in retrofits to comply with ADA and FHA requirements.  The Fourth Circuit dismissed all of the owner’s claims against the architects under the same theory that the Nevada Supreme Court adopted.  Federal district courts in Maryland, Mississippi and Tennessee have also dismissed claims by owners against their architects applying the same rationale.

While courts in many jurisdictions have yet to address this issue, property owners may want to rethink how they draft their contracts.  For example, alternative provisions that would require design professionals to share in the responsibility of a non-compliant design — as opposed to assuming all of it under an full indemnification provision — might give owners more options for recourse.  (The primary rational for rejecting the owners’ claims in the Rolf Jensen and Equal Rights Ctr. cases was the fact that enforcing the owners’ contractual rights would shift all responsibility for non-compliance to architects and/or consultants).

In addition to rethinking the contract, these disturbing court decisions also make clear that property owners cannot passively rely on their design professionals to get it right.  We often remind our clients that if all architects actually knew how to design to the federal accessibility standards, we would have very little work to do.  The level of understanding of federal accessibility requirements among design professionals varies greatly.  Thus, it is important for owners to be proactive about accessibility issues.  Designating a point person to oversee accessibility compliance for an entire project, asking the right questions to make sure accessibility is being considered, having plans reviewed by an independent and reputable accessibility specialist, and doing as-built accessibility inspections as soon as the project is completed are some of the ways to achieve this result.  Doing nothing on the front end may prove to be quite – unexpectedly – costly on the back end.

via Some courts say that owners cannot sue their architects and consultants for designing noncompliant facilities – Lexology.

BINGO Word of the Day – May 29th

The current game is now: Lines BINGO – 5 spaces in a row making a horizontal, diagonal, or vertical line.

 

Today’s Useless Fact:  Back in the mid to late 80’s, an IBM compatible computer wasn’t considered a hundred percent compatible unless it could run Microsoft’s Flight Simulator.

 

Here is today’s word:

 

COMMERCIAL CONSTRUCTION

 

Previously called words:

BRIAN MOFFITT

EXPERT WITNESS

INSURANCE CLAIMS

MERLIN TAYLOR

ROOF

ALEX WOITSCHECK