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CIC Newsletter - 2007

• January 15, 2007:  Safety Policy - OSH Review Commission Vacates “General Duty Clause” Citation Issued for Failure to Require High-Visibility Vests on Highway Project
  By Thomas H. Welby, P.E., Esq.
  The Occupational Safety and Health Act of 1970 and regulations thereunder set forth comprehensive rules concerning health and safety.  An entire section, 29 C.F.R. § 1926, is devoted to the construction industry, which unfortunately accounts for disproportionate numbers of workplace injuries and fatalities.  Read more...
   
• January 31, 2007:  Safety Policy - Under-Appreciated Dangers in Demolition Operations
  By Thomas H. Welby, P.E., Esq. 
  Demolition activities present an unexpectedly complicated array of professional issues.  Practical success and OSHA compliance require careful (and documented) advance planning.  Even with the best planning, demolition is fraught with unexpected and often nasty surprises.  These can result, for example, from deviations from design documents during construction; approved, unapproved or undocumented modifications; materials hidden within structural members, and unknown weaknesses or defects in materials.  Read more...
   
• April 1, 2007:  Contractual Time Limitations Dooms Sub’s Payment Bond Claim
  By Alexander A. Miuccio, Esq.
  In the construction industry, labor and material payment bonds are normally required to be furnished on public projects.  Some private owners particularly on large or institutional projects, may also require contractors to furnish payment bond.  Read more...
   
• April 26, 2007:  Safety Policy - Abatement Measures Under OSHA’s General Duty Clause
  By Thomas H. Welby, P.E., Esq.
  Imagine that one of your laborers is dead as the result of being struck by an excavator bucket in a trench, and that a compliance officer has cited your company for a “Serious” violation of OSHA’s General Duty Clause, § 5(a)(1).  Read more...
   
• May 1, 2007:  Contractor Liable for Indemnification and Failure to Obtain Insurance for Owner
  By Alexander A. Miuccio, Esq.
  Construction contracts often contain a provision which makes teh contractor an indemnitor for personal injury or property damage claims arising out of the work performed under the contract.  Apart from indemnity clauses, construction contracts often contain a provision obligating the contractor to obtain insurance naming the owner as an additional insured under the contractor’s insurance policy.  The enforcement of both provisions was addressed in the recenet case of Trano v. Federated Department Stores, Inc.  Read more...
   
• June 1, 2007:  Contractor Rejects Claims for Unwritten Change Order Work
  By Alexander A. Miuccio, Esq.
  Of the many problems that contractors must struggle with, probably none are more common than change orders and extra work.  Most construction contracts require a written authorization for change orders and extra work.  Courts generally hold that a contractor who fails to obtain a written change order will not be paid for that work.  Read more...
   
• July 1, 2007: Low Bidder Allowed to Correct Mistake After Bid Opening
  By Alenander A. Miuccio, Esq.
  Public bidding laws serve a dual purpose.  The primary purpose is to benefit the public by enabling municipalities, public agencies or public authorities to obtain the best price for public improvement contracts through competitive bidding.  The secondary purpose is to insure that contractors bidding on public projects are on an equal footing in competitive bidding.  Actions or omissions which would place certain bidders at a disadvantage are to be avoided. Read more...
   
• August 1, 2007:  Court Interprets Contractual Terms
  By Alenander A. Miuccio, Esq.
  In most government contracts, the terms and conditions cannot be changed.  In heavy construction in particular, a contractor does not have the leverage to negotiate changes in the standard contract form of a governmental agency.  Read more...
   
• September 1, 2007:  Damages Where Contractor Terminated-For-Convenience
  By Alenander A. Miuccio, Esq.
  One of the most important clauses in a construction contract is the termination-for-convenience clause.  Such a clause normally grants the owner the right to terminate the contract for “convenience”, whether with or without cause, and without constituting a breach of contract.  The contractor should include within the termination-for-convenience clause the right to collect all its costs incurred to the date of termination, including its potential liability to subcontractors.  Read more...
   
• October 1, 2007:  Summary Judgment Denied Where Subcontractor Fails to Perform
  By Alenander A. Miuccio, Esq.
  Summary judgment allows a party to obtain a judgment from the court on a claim without the necessity of a trial.  A summary judgment motion is quite attractive to litigants, since a successful motion allows the moving party to save the time and expense associated with a trial.  Read more...
   
• November 1, 2007:  Court Questions Validity of Progress Payment Releases
  By Alenander A. Miuccio, Esq.
  Progress payment requisitions signed by contractors can act as a waiver of lien and release of any and all claims against the owner.  Construction contracts normally provide for progress payment applications to be accompanied by a contractor’s affidavit stating that there are no claims to the date of the application for payment, and also provide for a waiver of lien for work performed to the date of the requisition.  These releases and lien waivers are problematic for contractors where the owner relies on them to reject a contractor’s legitimate claims, such as claims for changes or extra work, which arise before the releases and waivers of lien were signed.  In the recent case of E-J Electric Installation Co. v. Brooklyn Historical Society, the court took up the question of the validity of the releases and waivers.  Read more...
   
• December 1, 2007:  Contractor Allowed Recovery for Substantial Performance
  By Alenander A. Miuccio, Esq.
  The doctrine of substantial performance is a fair-minded remedy designed to allow an innocent party to recover for its work even though it has not fully complied with strict performance of the contract.  The fact that a contractor in good faith has failed in some respect to complete the work or its work was defective should not be a basis for denying recovery where it has substantially performed the work.  The question of whether a contractor has substantially performed is one of degree to be determined under the facts and circumstances of each case.  Read more...