Thoughts on construction law from Christopher G. Hill, Virginia construction lawyer, LEED AP, mediator, and member of the Virginia Legal Elite in Construction Law
In 2010, the Virginia Supreme Court held in Uniwest Const., Inc. v. Amtech Elevator Servs., Inc., that Va. Code Sec. 11-4.1 renders completely void and unenforceable any indemnification provision in a construction contract between a contractor and subcontractor that seeks to indemnify the indemnified party from its own negligent acts. In short, the Virginia Supreme Court stated that such overly broad provisions violate Section 11-4.1.
A recent case out of the Eastern District of Virginia Federal District Court examined a provision in a contract between a designer/architect and a contractor or owner on a project. In Travelers Indem. Co. of Conn. v. Lessard Design Inc. the Court examined the application of Section 11-4.1 to the following provision of a design contract where Lessard, the indemnitor, agreed to:
[i]ndemnify, defend and hold the Owner, Owner’s Developer, and Owner’s and Owner’s Developer’s wholly owned affiliates and the agents, employees and officers of any of them harmless from and against any and all losses, liabilities, expenses, claims, fines and penalties, costs and expenses, including, but not limited to reasonable attorneys’ fees and court costs relating to the services performed by the Architect hereunder . . .
In an unusual flurry of occupational safety related activity, the Virginia courts decided two cases in the last week relating to either the review of occupational safety regulations themselves or their enforcement.
In Nat’l College of Business & Technology Inc. v. Davenport (.pdf), the Virginia Court of Appeals considered what constitutes a “serious” violation of the exposure to asbestos Virginia Occupational Safety & Health (VOSH) regulations. The facts found by the Salem, Virginia Circuit Court were that employees of the petitioner college were exposed to asbestos insulation when they were required to enter a boiler room to retrieve paper files. However, no evidence was presented regarding the length of time or level of exposure at the Circuit Court level. Despite the lack of evidence regarding the level or extent of exposure, the Circuit Court upheld the VOSH citation for exposure and the level of violation at a “serious” level with the attendant penalty.
The Virginia Court of Appeals disagreed with the second finding. The appellate court determined that the lack of evidence regarding the level of exposure (whether length or extent) made the serious level violation an error. The Court stated that merely presenting evidence that asbestos is a carcinogen is not enough given the number of carcinogenic materials in existence and then remanded the case back to Circuit Court to reconsider the penalty level.
In a second case, Steel Erectors Ass’n of America v OSHA(.pdf ), the petitioner, SEAA, challenged a 2010 directive from OSHA regarding the enforcement of 2001 safety standards regarding steel construction, claiming that the enforcement change was an illegal regulation. The 4th Circuit Court of Appeals, in an exercise of discretion, determined that SEAA or one of its members would need to challenge any attempt at enforcement when OSHA tried to invoke its new policy. What the 4th Circuit said SEAA could not do was to challenge the enforcement policy without any pending enforcement action.
What these two cases show, aside from the fact that, yes, the Courts will occasionally look at these types of cases, is that not all cases are cut and dried. With the assistance of an experienced Virginia construction lawyer, a construction professional may be able to challenge an administrative enforcement action. Also, the help of such an attorney can certainly help head off a failed challenge such as that by SEAA with its attendant expense and headaches.
As always, I welcome and encourage your comments below, please share your thoughts. Also, please subscribe to keep up with the latest Construction Law Musings.
For this week’s Guest Post Friday here at Construction Law Musings, we welcome Vickie Lane. Vickie is the primary point of contact for Business Development with HAZMAT Plans & Programs, a consulting and training firm that also works under the name of HP&P Safety. Vickie’s functions with HP&P include extensive pre-project research and support though estimating, planning and cost administration. Vickie attended Ohio State University and now enjoys her role as a first time grandmother and spending free time up in the Colorado Rocky Mountains. Vickie can be reached at vlane@hppsafety.com or on Twitter @HAZMATPlans and @hpandpsafety.
Most of us perceive hazards on a construction site to be those that can be readily visualized or perhaps easily imagined, like trench cave-ins or falls from heights. These are the obvious, but what about the nocuous, microscopic hazards that can’t be seen by the human eye, but can destroy the health of your workers? Welcome to the world of hazardous materials.
The inherent danger associated with hazardous substances is workers might not be not aware of exposure. Think of a snake in the dark scenario. If it is a rattlesnake, you have warning before the bite. A cobra on the other hand gives no such warning and the bite can be fatal. So it can be with hazardous and toxic substances.
A few things to know:
1. OSHA does not use the term HAZMAT. OSHA refers to hazard materials as “hazardous and toxic substances”. HAZMAT is the term used by the DOT to refer to hazardous materials in transport.
2. Standards that can apply to hazardous substance include OSHA, EPA, RCRA, your state’s Department of Health and Environment, and if in transport to or from locations, large quantities fall under DOT and PHMSA. NIOSH has a wealth of health and safety information on work around toxic and hazardous substances.
NIOSH also provides studies of workplaces if workers or employers feel there has been exposure to hazardous and toxic substances. This work is done under their Health Hazard Evaluation Program. More information on the HHE program can be found at http://www.cdc.gov/niosh/hhe/HHEprogram.html.
3. Hazardous substances can be found in many shapes and forms including particulate, gas, vapor, mist, liquid, and dust. Workers’ exposure to toxic substances can come from inhalation, skin contact, ingestion or eye contact. This is where it is extremely important for contractor adherence to OSHA’s standards for Personal Protective Equipment. The right gloves and respirators can be life savers.
4. Identify the hazardous substances in your workplace. Lead, Asbestos, Silica, Isocynates are a few of the most common forms of toxic substances found on a construction site. Excessive exposure to any of these can result in respiratory problems, lung damage, nervous system damage and future respiratory arrest……also, don’t forget the dust on your work clothes can endanger your family’s health too.
5. Once again, remember multiple regulatory standards may apply. OSHA standards apply with a current National Emphasis Program on Asbestos, Lead and Silica. The EPA and “Your State” Department of Health also have regulations with an emphasis on Lead and Asbestos in construction. Disregards regulations on work around on any of these hazardous substances and you could be looking at fines and penalties from OSHA, EPA and “Your State” – Not to mention the potential of lawsuits from workers and possible public exposure!
6. Earthwork may involve soil contaminated with heavy metals or minerals. OSHA requires HAZWOPER training for any workers who may be exposed to hazardous substances. 24 Hour training is required for the Occasional Site Worker such as project managers or truck drivers. 40 Hour HAZWOPER training is required for those who actually have the potential to exposure while working in the contaminated soil…..when calling for training, remember HAZWOPER not HAZMAT training. We consultants can be easily confused!
7. Keep a copy of MSDS sheets at the jobsite and in the main office. Also, be sure to have a Hazard Communication Program and if need be, Respirator Program in place. Employees who require respirators for work will also need to be trained and Fit-Tested. A medical evaluation is required prior to fit-testing for all employees whose work will involve mandatory use of respirators and is suggested for those who voluntarily use elastomeric face pieces.
8. Ensure that your Emergency Action Plan is up-to-date and in place. Think BP. Need I say more? An EAP not only can protect your workers but our environment.
Work around hazardous and toxic substances can be complex and complicated. Proper planning, education and PPE will help to protect your workers from that “snake in the dark”. For more information, OSHA 29 CFR 1926 Subpart Z, Toxic and Hazardous Substances and OSHA 29 CFR 1926.65, Gases, vapors, fumes, dusts and mists.
As always Vickie and I welcome your comments below.Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.
Previously in this on-again-off-again series of posts on construction contract basics, I discussed attorney fees provisions and indemnification. In this installment, the topic at hand is venue and choice of law.
As construction professionals (outside of us construction attorneys), you are likely to be focused on things like the scope of work in a construction contract, the price terms, payment, delays, change orders, and the like. However, the venue (where any lawsuit or arbitration will have to happen) and the choice of law (what state’s law applies) can be equally important. You need to know where you will have to enforce your rights under the contract and also what law will apply. Will you need to go to another state to enforce your rights? Even if not, will your local attorney have to learn the law of another jurisdiction? These are important questions when reading and negotiating your prime contract (if with the owner) or subcontract (if with the general contractor). Continue reading Construction Contract Basics: Venue and Choice of Law
