Articles Posted in Construction Generally

Posted
by
  • What ever happened to tough love? Report shows that members of DOJ staff manipulated hiring process to get their kids jobs.
  • Sustainable cities beneath the sea? The “highly imaginary concept” of seascrapers is segmented into garbage collection units at the bottom, recycling plants in the middle, and housing and recreational zones at the top.

Posted
by

Throughout the world, the popularity of “green roofs” is on the rise. ENR.com reports that green roofs are being used to mitigate various environmental problems facing urban areas, most notably, storm water management. According to the EPA, green roofs also help combat a problem known as “Heat Island Effect” by removing heat from the air through evapotranspiration. This process reduces temperatures of both the roof surface and the surrounding air, allowing the surface temperature of a green roof to be lower than the surrounding air temperature on a hot day. Other benefits of green roofs include corrosion protection, noise reduction, energy efficiency, and improved air quality. And the uses for green roofs vary widely from practical to pure entertainment. The ENR.com article notes that the largest green roof project currently underway in the United States – the Croton Water Filtration Plant in Bronx County, New York City – will include a 36,512-sq-m golf driving range.

Green Roofs for Healthy Cities, one of a number of groups advocating for the increased use of green roofs in construction, defines a green roofing system as an “extension of the existing roof which involves a high quality water proofing and root repellant system, a drainage system, filter cloth, a lightweight growing medium and plants.” Green roofing systems may be modular (with drainage layers, filter cloth, and growing plants already prepared in movable, interlocking sections), or the elements of the system may be installed separately. Green roofs can be used on a wide variety of buiildings, from private residences to industrial complexes, and the vegetation sustained thereon can range from simple groundcover to tall trees.

While typically more expensive to install than a traditional roofing system, proponents say that green roofs pay for themselves in terms of increased property value, aesthetic appeal, reduced heating and cooling costs, and extended life of the roofing materials. Many cities throughout the U.S. and abroad (particularly in Europe) already promote the use of green roofs – either through mandates or incentives. And the use of green roofs is only expected to increase as green infrastructure continues to gain political support.

Posted
by

Posted
by

Under the Texas code, the workers’ compensation exclusive remedy bar applies up and down: barring injured employees of subcontractors from bringing common law tort suits against a general contractor which provided workers compensation insurance, and also in reverse, barring injured employees of the general contractor from bringing suit against a subcontractor, even when the employees are covered under separate workers’ comp policies. So says the Texas Court of Appeals in Garza v. Zachry Construction Corp., 2012 WL 1864350 (Tex. Ct. App. May 23, 2012).

In Garza, an employee at DuPont’s Ingleside, Texas plant was injured when the railcar mover he operated came loose. He received workers’ compensation benefits through a policy provided by DuPont, and later brought common law tort claims against a subcontractor and two of its employees for negligence in causing the accident. The subcontractor, whose employees were covered by a separate workers compensation insurance procured by DuPont, successfully argued that DuPont was their deemed employer and the injured worker and subcontractor employees were deemed fellow employees. In this way, the subcontractor was shielded from such actions by the workers’ compensation exclusive remedy bar contained in Texas Labor Code section 408.001 as made applicable to subcontractors by Labor Code section 406.123. On appeal, the Court of Appeals agreed.

Garza, the injured employee, argued that the exclusive remedy bar could not apply where the subcontract specified that the subcontractor’s employees were not employees of DuPont, Garza’s employer. But even if they were deemed employees for purposes of statutory workers compensation benefits, the bar could not apply where the subcontractors were covered under a separate workers’ compensation policy than that covering DuPont’s employees. Lastly, if the statute does immunize the subcontractor, then it violates the open courts guarantee (assuring that a person bringing a well-established common-law cause of action will not suffer unreasonable or arbitrary denial of access to the court) in the Texas constitution.

In rejecting these arguments, the appellate court first ruled that the subcontract at issue required DuPont to procure workers’ compensation coverage for Zachry’s employees, “thereby, creating the legal fiction of DuPont as the ‘deemed employer’ and Zachry and its employees as ‘deemed employees'” under Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 438 (Tex.2009) and HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 352 (Tex.2009). The subcontract, however, did not provide these same “deemed employees” with the other more traditional employee benefits enjoyed by DuPont’s actual employees. Secondly, the court ruled that nothing in the workers compensation statute, section 406.123, “specifies that when a general contractor purchases a workers’ compensation policy for its own employees and also purchases a second policy for its subcontractors, then its own employees and its “deemed” employees may freely sue each other simply because they receive their coverage under different policies, albeit from the same “employer” for work performed at the same job site.” According to the court, such an interpretation would be contrary to the purpose of the legislation – which is to encourage coverage of employees. Finally, the court concluded that Garza’s rights under the open courts provision are not violated because “[t]he workers’ compensation benefits he receives from his employer, which also provides those same benefits to its subcontractors, is an adequate substitute for his right to bring his tort claims against those subcontractors.”

Posted
by , and

Effective July 1, 2012, all of the existing statutes governing mechanics liens, stop notices and payment bonds in California will be repealed and replaced by updated statutes. The law will also result in new statutes governing stop notices (on both public and private works), payment bonds and related claims. The law relocates and renumbers the Mechanics Lien Law, but many of the provisions are substantively the same. Pillsbury attorneys prepared a handy chart that will assist those of you familiar with the old statutory scheme to retool for the new layout. To learn more about this, click here to read the client alert and chart.

Posted
by

On March 30, 2012, New Jersey’s Appellate Division issued a ruling in the case of New Jersey v Perini Corp. which explains how New Jersey’s 10 year statute of repose applies to projects using phased construction.

New Jersey’s statute of repose essentially provides that no action may be brought to recover damages for any deficiency in the “design, planning, surveying, supervision or construction” of a project “more than 10 years after the performance or furnishing of such services and construction.” Earlier cases have already established that the statute of repose runs from the date that one’s services for the project are substantially complete. So, the statute of repose will prohibit a claim against an early trade subcontractor once 10 years has elapsed after that subcontractor completed its work on the project even though the entire project may not yet be substantially complete for more than 10 years. However, the general contractor will remain on the hook until 10 years has elapsed from the date of substantial completion for the entire project.

The Perini case required the court to apply these concepts to phased construction. The state sued the general contractor, designer and pipe supplier for problems that developed with the underground hot water piping at a new state prison. The suit was filed on April 28, 2008. By contract, the prison was constructed in three separate phases – each with its own contractual substantial completion date. By April 27, 1998, 10 years before the state filed suit, the state had issued substantial completion certificates for the entirety of the first two phases of the project and for all but two buildings included in the third phase – a garage and a housing unit located outside the main perimeter. However, no certificate of substantial completion was issued specifically for the hot water system.

The court held that “multiple phases of a construction project that are clearly identified and documented can trigger separate periods of repose, even for the general contractor and other contractors that continue to work on the entire project.” However, the court rejected the notion that there can be “separate trigger dates of repose for components of a project, whether multi-phase or not, that are not clearly identified in the documentary record as distinguishable improvements.” In this case, the court found that the hot water system was not a clearly distinguishable component of the construction and was not substantially complete by April 27, 1998. As such, the state’s claim was not untimely under the statute of repose.

Posted
by

After three years of development, on March 28, 2012, the International Code Council (“ICC”) announced the release of its 2012 International Green Construction Code (“IgCC”). The IgCC, a milestone for bringing sustainability into the mainstream, will enable state and local governments to codify green building practice. The IgCC was developed by the ICC in cooperation with key industry partners – the AIA, ASTM International, ASHRAE, the U.S. Green Building Council (“USGBC”), and the Illuminating Engineering Society (“IES”).

The ICC touts the IgCC as the first model code to address sustainability issues throughout the entire life of a construction project – from design to certificate of occupancy. Richard P. Weiland, CEO of the ICC, described the IgCC to GlobeSt.com as “a baseline document or regulatory framework that different jurisdictions can use for sustainable construction practices.” Wieland further explained that the ICC incorporates the 2011 version of the ANSI/ASHRAE/IES/USGBC Standard 189.1 but allows state and local governments to be flexible in implementation.

More, after the jump.

A press release from the USGBC, maker of the LEED green building certification system, lauded the model code as an important policy option for localities. According to the USGBC, the IgCC is a complement to LEED that allows state and local governments “to share many of the benefits of green buildings with the millions of buildings that are designed, constructed and renovated to meet minimum code, whether or not they are engaged in the LEED program.”

As jurisdictions begin to consider adopting the IgCC, training and resources will be available from the ICC and its partners. The AIA’s announcement states that it has analyzed the IgCC’s impact on the architectural profession and will be releasing a guide in May 2012. The ICC’s Green Building guide, which it claims is the construction industry’s first support publication referencing the 2012 IgCC, is currently available here.

Posted
by

Could LEED certification of new buildings cause increased injury rates for construction workers? Matthew Hallowell, an assistant professor in the Civil, Environmental and Architectural Engineering Department at the University of Colorado at Boulder, thinks so. A recent set of articles authored by Hallowell and several co-authors published or in review by the Journal of Construction Engineering and Management analyzed LEED credits and conducted field research on the hazards related to constructing buildings that will be registered under the LEED system. The articles found that twelve LEED credits contribute to increased hazards for construction workers. According to the author’s research, these hazards for construction workers include:

– A 24% increase in injuries resulting from slips and falls while installing heavy solar panels on roofs painted white in order to reflect sunlight;

– A 36% increase in cuts and abrasions when entering recycling dumpsters to retrieve improperly discarded materials;

– An increase in falls when green roofs are installed by landscaping contractors not accustomed to working at height; and

– An increase in falls when workers spend increased time at height installing sky lights to provide day lighting or performing time-intensive wiring for lighting sensors.

The articles do note that worker safety under LEED is improved by the use of lower VOC adhesives and sealants. In all, Hallowell claims that a building cannot be considered sustainable without accounting for the health of construction workers.

But should we blame LEED for these hazards? Several of these risks and related mitigation strategies predate LEED and apply equally to any large construction project, including increased emphasis on fall protection procedures, reducing the time workers spend in hazardous situations, and increased protections against hazardous chemicals.

Further, several of the potential hazards Hallowell references could be addressed by additional safety features for construction practices that could be introduced by regulators or contractors. For example, the articles cite potential injuries caused by installing white solar roofing panels, which can be heavier and more slippery than traditional black roofing materials and can reflect light into workers’ eyes. The authors recommend rubber walk pads and safety eyewear to combat these problems, safety measures that are not noted by LEED.

The U.S. Green Building Council, which oversees LEED, has taken notice of potential safety hazards. Brendan Owens, a USGBC representative, said he was surprised by Hallowell’s findings and noted that USGBC is working with the National Institute for Occupational Safety and Health to evaluate these safety issues. While it may be too late for the USGBC to include safety-related changes for the forthcoming update to the LEED rating system, called LEED 2012, safety concerns will likely play a larger role in future updates to the rating system.

Posted
by

Colorado’s Regional Transportation District (RTD), the public transit provider for the Denver Metro area, is hopeful that public-private partnerships, including unsolicited P3 bids, will accelerate the completion of the FasTracks program. FasTracks, a voter-approved transit expansion program aimed at better connecting the Denver Metro area, includes 122 miles of commuter and light rail, 18 miles of bus rapid transit service, 21,000 new parking spaces, redevelopment of Denver’s Union Station and redirected bus services.

Continue Reading ›

Posted
by

According to this article by Ben Nuckols, a team of surveyors is in town. They are here to figure out if the Washington Monument shifted or sunk during the 5.8-magnitude earthquake that hit our Nation’s capital in August of last year. Although the monument is structurally sound, it will remain closed until August 2013 for repairs. The surveyors’ preliminary results are expected in two weeks.

WashMon1.jpg For people living in an area not prone to having earthquakes, it was quite a jarring experience. In fact, one of my colleagues went as far as to take cover under his desk while yelling warnings to our entire floor, but that is beside the point. One can only imagine the thoughts racing through the minds of the employees and tourists in the Washington Monument at the time. Some of the reactions of the people – as well as the damage from the interior – were captured by video camera installed inside the Monument. You can watch videos at the 500 foot level from three different views on the National Park Service website.

Let’s all hope the surveyors’ findings do not reveal the Washington Monument is tilted as a result of last year’s earthquake. Although, even if the obelisk remains in perfect position, I may just keep my feet planted on the ground after watching those videos!

Photo Credit: Samer Farha