Friday, September 15, 2017

Preventing Acts of God: Construction Accidents Caused by Outside Factors

For this week’s Guest Post Friday here at Musings, we welcome back Seth Smiley. Seth, a native of Baton Rouge, is the owner of Smiley Law Firm. He is admitted to practice in all state and federal courts in Louisiana and California. Seth Smiley is the son of a general contractor, and acquired valuable work experience in the construction industry prior to entering law school. He earned his J.D. from Loyola, New Orleans in 2009. In his practice, Seth handles all aspects of construction cases, from initial contracting all the way to final payment once work is complete. Other areas of focus include commercial lease disputes, personal injury, business formation, and insurance property damage claims. Seth loves to fight insurance companies. Seth is currently the primary author of the Smiley Law Blog. The blogs primary focus is to provide value for current and prospective clients regarding trending legal issues in which the attorneys at Smiley Law Firm cover.

There are several factors a construction team can control on a job site. The foreman can ensure scaffolding is secure and that all employees are properly trained, and all workers can take steps to ensure a reasonably safe work site. Accidents can and will happen despite the best efforts of those involved. According to a recent poll of more than 100 published studies, the most common factors in all construction site accidents include:

  • Problems involving the workers or work team, e.g., lack of training, inexperience, termination or resignation of work site lead;
  • Workplace issues related to the nature of or design of construction site;
  • Defective or lackluster condition of equipment or materials;
  • Issues with risk management.

Some construction site accidents, however, are simply the result of “acts of God.” They involve factors beyond our control or seemingly beyond our prevention. Examples might include accidents inadvertently caused by weather. If you incurred an injury on a construction site through no one’s fault, what are your options to obtain compensation? Can the construction team take steps to prevent these accidents in the future?

Possible Recourse for Injured Workers

Thankfully, the workers’ compensation system exists for situations like these–when a worker sustains a serious injury on the job and no one seems immediately at fault. The workers’ compensation program is a no-fault system. This means that injured workers don’t have to prove that their employers were at-fault for the injuries before collecting benefits.

However, in some circumstances, collecting benefits could ultimately forfeit any rights an employee may have to sue for additional damages, such as pain and suffering. There are ways to collect for pain and suffering, but there needs to be an additional at-fault party.

An investigation might yield that even an act of God is preventable depending on the scenario. For example, a construction foreman might not be able to stop the rain, but he or she can cease work operations until safe working conditions are restored.

The law offers certain protections to construction teams who cannot meet their deadlines due to inclement weather–it’s called a force majeure clause, and it makes it harder for a client to sue or refuse payment for breach of contract.

Force majeure means “superior force” and refers to elements that may delay a project that are out of a construction team’s control. Adding one of these clauses is a simple, yet effective way to keep employees safe from the dangers of working in inclement weather.

Preventing the Impossible

Preventing accidents due to outside factors seems profoundly hard, but there are a few steps team leaders can take to prevent accidents. Consider adding these factors to your construction risk mitigation strategy:

  • Create a comprehensive list of risks, rank them, and decide how you’ll deal with them.
    • You might choose to avoid a risk of injury by refusing to work under certain conditions or in accident-prone areas.
    • Obtain appropriately comprehensive insurance.
    • And mitigate risks you can control by using proper safety equipment for heights, carcinogens, toxic materials, and excessive noise and vibration.
  • Get everyone involved.
    • Construction risk management doesn’t exist in a vacuum. Everyone on the team must understand and contribute to your risk management strategy.
    • Communicate with frequent updates and review possible risks regularly at all levels of the operation. Timely, constructive reminders can go a long way in preventing injury, including those due to acts of God.

Despite your best efforts, some construction site injuries aren’t preventable. That’s why the workers’ compensation system exists. Apply these strategies to minimize your team’s risk of injury as much as possible.

Do what you can to reduce both the likelihood and severity of workplace injuries to put your team in the best position to execute your project successfully. For more information on subjects relating to the construction industry and construction injury, please contact the attorneys at the Smiley Law Firm for a more detailed analysis.

Seth and I welcome your comments below.  Also, please subscribe to keep up with this and other Guest Post Friday Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 license.

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Preventing Acts of God: Construction Accidents Caused by Outside Factors

For this week’s Guest Post Friday here at Musings, we welcome back Seth Smiley. Seth, a native of Baton Rouge, is the owner of Smiley Law Firm. He is admitted to practice in all state and federal courts in Louisiana and California. Seth Smiley is the son of a general contractor, and acquired valuable work experience in the construction industry prior to entering law school. He earned his J.D. from Loyola, New Orleans in 2009. In his practice, Seth handles all aspects of construction cases, from initial contracting all the way to final payment once work is complete. Other areas of focus include commercial lease disputes, personal injury, business formation, and insurance property damage claims. Seth loves to fight insurance companies. Seth is currently the primary author of the Smiley Law Blog. The blogs primary focus is to provide value for current and prospective clients regarding trending legal issues in which the attorneys at Smiley Law Firm cover.

There are several factors a construction team can control on a job site. The foreman can ensure scaffolding is secure and that all employees are properly trained, and all workers can take steps to ensure a reasonably safe work site. Accidents can and will happen despite the best efforts of those involved. According to a recent poll of more than 100 published studies, the most common factors in all construction site accidents include:

  • Problems involving the workers or work team, e.g., lack of training, inexperience, termination or resignation of work site lead;
  • Workplace issues related to the nature of or design of construction site;
  • Defective or lackluster condition of equipment or materials;
  • Issues with risk management.

Some construction site accidents, however, are simply the result of “acts of God.” They involve factors beyond our control or seemingly beyond our prevention. Examples might include accidents inadvertently caused by weather. If you incurred an injury on a construction site through no one’s fault, what are your options to obtain compensation? Can the construction team take steps to prevent these accidents in the future?

Possible Recourse for Injured Workers

Thankfully, the workers’ compensation system exists for situations like these–when a worker sustains a serious injury on the job and no one seems immediately at fault. The workers’ compensation program is a no-fault system. This means that injured workers don’t have to prove that their employers were at-fault for the injuries before collecting benefits.

However, in some circumstances, collecting benefits could ultimately forfeit any rights an employee may have to sue for additional damages, such as pain and suffering. There are ways to collect for pain and suffering, but there needs to be an additional at-fault party.

An investigation might yield that even an act of God is preventable depending on the scenario. For example, a construction foreman might not be able to stop the rain, but he or she can cease work operations until safe working conditions are restored.

The law offers certain protections to construction teams who cannot meet their deadlines due to inclement weather–it’s called a force majeure clause, and it makes it harder for a client to sue or refuse payment for breach of contract.

Force majeure means “superior force” and refers to elements that may delay a project that are out of a construction team’s control. Adding one of these clauses is a simple, yet effective way to keep employees safe from the dangers of working in inclement weather.

Preventing the Impossible

Preventing accidents due to outside factors seems profoundly hard, but there are a few steps team leaders can take to prevent accidents. Consider adding these factors to your construction risk mitigation strategy:

  • Create a comprehensive list of risks, rank them, and decide how you’ll deal with them.
    • You might choose to avoid a risk of injury by refusing to work under certain conditions or in accident-prone areas.
    • Obtain appropriately comprehensive insurance.
    • And mitigate risks you can control by using proper safety equipment for heights, carcinogens, toxic materials, and excessive noise and vibration.
  • Get everyone involved.
    • Construction risk management doesn’t exist in a vacuum. Everyone on the team must understand and contribute to your risk management strategy.
    • Communicate with frequent updates and review possible risks regularly at all levels of the operation. Timely, constructive reminders can go a long way in preventing injury, including those due to acts of God.

Despite your best efforts, some construction site injuries aren’t preventable. That’s why the workers’ compensation system exists. Apply these strategies to minimize your team’s risk of injury as much as possible.

Do what you can to reduce both the likelihood and severity of workplace injuries to put your team in the best position to execute your project successfully. For more information on subjects relating to the construction industry and construction injury, please contact the attorneys at the Smiley Law Firm for a more detailed analysis.

Seth and I welcome your comments below.  Also, please subscribe to keep up with this and other Guest Post Friday Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 license.

Send to Kindle

Monday, August 14, 2017

Talking Mediation at AEC Forensics

Thank you to my friend and relatively frequent guest poster here at Construction Law Musings, Brian Hill (@aecforensics) for letting me invade his great blog on risk management and best construction practices, AECforensics.com, and talk about one of my favorite topics, mediation.  As I have said on many an occasion, mediation is often the most efficient and cost effective way out of a bad situation (read: construction claim).  I share these thoughts in more depth over at Brian’s blog.

Here’s a taste:

Whether your dispute is big or small, has to do with interpretation of your, hopefully well drafted, construction contract or the allegedly poor quality of the work, or any other reason why a payment dispute (and in commercial construction, it is always some form of payment dispute), mediation is almost always a good option.  Remember, litigation and arbitration are expensive and even if you win, your construction business will take a hit, mainly because you cannot and should not budget for litigation (I mean, really, everyone should just do the right thing, correct?).

For the rest of my thoughts, head on over to AEC Forensics and read the full post here.

If you find this Musing to be interesting and have a comment, please join the conversation below and subscribe to keep up with the latest information.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 license.

Send to Kindle

Talking Mediation at AEC Forensics

Thank you to my friend and relatively frequent guest poster here at Construction Law Musings, Brian Hill (@aecforensics) for letting me invade his great blog on risk management and best construction practices, AECforensics.com, and talk about one of my favorite topics, mediation.  As I have said on many an occasion, mediation is often the most efficient and cost effective way out of a bad situation (read: construction claim).  I share these thoughts in more depth over at Brian’s blog.

Here’s a taste:

Whether your dispute is big or small, has to do with interpretation of your, hopefully well drafted, construction contract or the allegedly poor quality of the work, or any other reason why a payment dispute (and in commercial construction, it is always some form of payment dispute), mediation is almost always a good option.  Remember, litigation and arbitration are expensive and even if you win, your construction business will take a hit, mainly because you cannot and should not budget for litigation (I mean, really, everyone should just do the right thing, correct?).

For the rest of my thoughts, head on over to AEC Forensics and read the full post here.

If you find this Musing to be interesting and have a comment, please join the conversation below and subscribe to keep up with the latest information.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 license.

Send to Kindle

Friday, August 11, 2017

Project Documentation: The Bad Little Email That Got Produced

Believe it or not, there are always a wealth of emails and other documents produced in litigation that help “make the case” for the other side. Take, for the example, the e-mail I found in the files of one superintendent entitled “PROJECT DELAYS” … the words could not have been clearer … “I think we need to begin to tell management that we are late.  We also need to consult the claims team to determine how late we really are.

On another case, I found this nugget: “Although we should give them notice of this claim, let’s wait until our equipment has left the port on their vessel before telling them.

Best Practices advises that you should have a written document management policy in place.  This policy should define and describe the role of the following:

  • Critical project documentation, such as correspondence, meeting minutes, daily reports and logs, calendars and diaries, accounting records, submittals, schedules, photographs, etc.
  • Non-critical documentation, such as personal emails, instant messages, text logs, blog trails, website traffic logs, etc.

The advent of project management software and web based platforms (i.e., Procore, Microsoft Dynamics, buildertrend, planswift, PlanGrid, e-Builder ) have enhanced document control by allowing the user to track revisions, store master files, and streamline the review process.  However, the human element is still involved.  Any policy must set appropriate boundaries and guidelines for the following:

  • Personal use of email (…a good place to find “mismanagement” emails…)
  • Use of profanity (…I always search for the juicy four-letter words…good emails…)
  • Risks of informal communications (…see emails above…)
  • And, of course, a document retention policy (…don’t shred right after lawsuit is filed…)

Failure to formulate a policy that addresses these simple areas almost guarantees that the bad little email will get created and produced.