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Attorney Hilary Flint Morgan Joins Cotney Construction Law

Cotney Construction Law. Announces the Hiring of Attorney Hilary Flint 



Trent Cotney Elected Treasurer of the West Coast Roofing Contractors’ Association



In construction defect disputes, owners, developers, and associations, often times assert a claim against contractors for a violation of the building code. Such a claim is authorized pursuant to Florida Statute s. 553.84. This inevitably brings up the question of who determines whether an asserted defect, error, or omission constitutes a violation of the building code. In legal terms, it is a matter of whether it is question of law for the judge, or a question of fact for the jury? Florida courts have determined it is a question of law for the judge to determine.

For instance, in Edward J. Seibert, A.I.A. Architect and Planner, P.A. v. Bayport Beach and Tennis Club Ass’n, Inc., 573 So.2d 889 (Fla. 2d DCA 1990), a condominium association filed suit against numerous parties, including the architect. The jury found that the architect was liable for violating the building code in the fire exit design even though the design had been originally approved by the subject building department. In support of its claim for building violation, the association had an expert testify on interpretation of the building code. The Second District ultimately held that the interpretation of the code was a question of law that should not have been submitted to the jury. “An expert should not be allowed to testify concerning questions of law, and the interpretation of the building code presented a question of law.” “It was the duty of the trial court to interpret the meaning of the code and instruct the jury concerning that meaning. Any conflicts in interpretation were for the court to resolve and their resolution was not a jury issue.”

A recent 5th DCA decision further clarified a reoccurring issue in construction litigation cases involving insurance companies.  Commercial general liability (“CGL”) policies typically contain a section called “Supplementary Payments ” section that generally states as follows:

Insurer will pay, with respect to any claim we investigate or settle, or any “suit” against an insured we defend:

“All costs taxed against the insured in the “suit.”

In Mid-Continent Casualty Co. v. Treace, WL 9491876 (Fla. 5th DCA 2015), an owner prevailed in a construction defect claim against a contractor and obtained a judgment.  The court subsequently entered a judgment for attorney’s fees and costs in favor of the owner, and thereafter, the owner initiated a proceeding against the contractor’s CGL insurer to recover the judgments.  After the trial court denied the owner from recovering its attorney’s fees against the insurer, the owner appealed.  The appellate court reviewed the above language in the contractor’s CGL policy.  The policy stated that said the insurer would pay for “[a]ll costs taxed against the insured in the ‘suit.’” The court found that the language “‘all court costs’ could be read to include attorney’s fees, especially since there was no definition of that term in the policy.  The court stated, “The insurer did not, but could have, defined ‘court costs’ to specifically exclude attorney’s fees.”   As such, the court held that the attorney’s fees judgment was recoverable by the owner against the contractor’s CGL insurer.

Accordingly, this case seemingly provides an argument for an owner that recovers a judgment against an insured in a construction defect lawsuit (which includes attorney’s fees) that such attorney’s fees are recoverable under the insured’s CGL policy.

Many contractors are  weary when OSHA comes to interview their employees.  Part of the concern is inevitably over the uncertainty of the process; however, there are some items that most contractors can expect.  The OSHA inspector will without hesitation ask your employee if they have been trained on fall protection.  The inspector will ask very specific questions regarding how the employee was trained, who performed the training, and how often this training occurred.  Employees need to be prepared to answer these questions, and company training policies should allow the employees to tell the inspector they are frequently trained by the company’s safety director or a third party safety consultant.  The employee should also be able to tell the inspector that he or she was trained once upon hire, and retraining occurs at least once a year.  Additionally, the employee will need to advise the inspector about any videos or lectures they are required to attend in order to complete the company’s training program.  It will further support your defense if the employee notifies the inspector about any weekly tool box talks or routine safety meetings they are made to attend at specific jobs.

All contractors should also be able to recite OSHA’s fall protection standard.  This has become a major source of citations in recent months, and is easily preventable if employees are prepared for the OSHA interview.  The employees must report to the OSHA inspector that they are fully aware of OSHA’s regulation requiring the use of fall protection at heights of six feet or more above a lower level.  It is not necessary for employees to identify the exact provision within the Code of Federal Regulations, but they must be able to tell the inspector that he or she is trained to recall that regulations exist which require all employees working on a surface with unprotected sides and edges at six feet or more above a lower level be protected from falling by the use of a fall protection system.  The magic words required to support your company’s defense against this type of citation is six feet.  The employee must tell the inspector they always wear fall protection when working at a height of six feet or more.

Another favorite interview tactic of the OSHA inspector is to question an employee on the dangers of a fall.  Often times this question is so alarmingly simple that roofers have trouble giving OSHA the correct answer.  If OSHA asks employees if they are aware of what happens if someone falls from a roof, the best possible answer will always be to inform the inspector they have been trained to recognize that death or serious injury can occur from a fall.  If an employee makes the mistake of reporting to the inspector that falls are not always dangerous or that roofers can sometimes survive a fall, there is a strong chance the company will be cited for an inability to properly train employees on the hazards associated with a fall.

OSHA inspectors also prefer to ask employees if all falls are preventable.  Most roofers would immediately reply that falls are preventable, but that construction is a dangerous and high risk profession.  This is not the answer we should provide to OSHA.  The administration wants to see that your employees are trained to recognize the fact that all falls are preventable.  An employee should never tell OSHA that injuries are an unpreventable reality on a construction site.  If OSHA inspectors ask your employees if falls are preventable, the answer should always be to inform the inspector that all falls are 100% preventable.

Cotney Construction Law. Wins the DealMakers 2015 Global Award for Leading U.S. Construction Law Firm of the Year.