Virginia Circuit Court – Construction Law Musings- Richmond, VA

OSHA/VOSH Roundup

Originally posted 2015-08-03 09:00:14.

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.

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Sometimes Contractors Collect Without a License (Crawford Construction Revisited)

Originally posted 2012-11-26 09:00:56.

Are you all looking for a case where the contractor did just about everything wrong from a documentation and licensing perspective and still got away with it? If so look no farther than Crawford Construction & General Contractors Inc. v. Kemp. This case came up here at Musings once before relating to the contractor’s failure to obtain written change orders from the defendant homeowners. In the prior opinion, the Salem, Virginia Circuit Court allowed a large claim by the contractor, Crawford, to go forward despite the lack of written change orders.

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A Twist on Mechanic’s Liens and Bankruptcy

Originally posted 2010-11-08 11:28:52.

We have discussed mechanic’s liens and their advantages relating to bankruptcy on several occasions here at Musings. As I warmed up from a cold weekend of camping with my son’s Boy Scout troop, I remembered a recent case out of the Fairfax County, Virginia Circuit Court that provides an explanation of yet another wrinkle in the mechanic’s lien/bankruptcy interaction.

In Heritage Contracting LLC v. Vasquez, the Court considered the effects of a filing of bankruptcy by one of two joint tenants upon the lien enforcement rights of a material supplier to the property owned by those joint tenants. In Vasquez, Chopp & Company recorded its lien against the property 5 months prior to one of two joint tenants with the right of survivorship filing bankruptcy. Once the stay was lifted 9 months after the lien was recorded (and well outside of the 6-month statute of limitations for filing suit to enforce the lien), Chopp attempted to enforce its lien. While this, in and of itself, is relatively straightforward, Chopp did not file within the 30 days post-bankruptcy required by the bankruptcy code.

Despite this failure to meet the bankruptcy code deadline, Chopp argued that, because one of the two joint tenants did not file for bankruptcy, it was still allowed to enforce its lien. The Court disagreed. After an analysis of the various cases relating to severance of joint tenancies and the Fourth Circuit‘s “unusual circumstances” test (found in A. H. Robins v. Piccinin, 788 F.2d 994 (4th Cir. 1986)), the Court concluded that Chopp had blown its opportunity to enforce its lien when it failed to file the enforcement action within the 30 days.

In short, the cautionary tale of this case is that, despite mechanic’s liens surviving bankruptcy, several statutes (state and federal) are at play in every bankruptcy. Contractors and subcontractors that file these liens need to be aware of these interactions themselves or consult with an experienced construction attorney who is. Failing to do so could send your Virginia mechanic’s lien to the “dismissed” pile in a hurry.

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Sometimes You Survive Without Written Change Orders (But I Wouldn’t Recommend It)

Originally posted 2011-10-10 09:00:52.

As anyone who reads Construction Law Musings on even an irregular basis knows, I am a major advocate of getting everything (especially change orders) in writing. This is particularly true where your construction contract documents require written change orders. In other words, you should make your contracts say what you want them to and then follow the provisions of those contracts. Of course, as soon as I preach from the highest mountain that this is the best and only way to go, the Salem, Virginia Circuit Court allows a claim to go forward that seems to provide an exception to this rule.

In Crawford Construction & General Contractors Inc. v. Kemp, in an all to familiar scenario, the Crawford Construction built a $1.3 million home for the Kemps with all of the oral change orders and adjustments that the homeowners requested throughout construction. The original contract between the parties included a requirement that all change orders be in writing. At the end of the project, and after payment by the owners for some of the changes throughout construction, the builder had a claim for an additional $605,694. Needless to say (and as implied by the title of this post) there were no written change orders documenting the changes comprising this claim.

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Reckless Disregard is. . . Well. . .Reckless

Originally posted 2017-12-25 10:00:02.

Punitive damages are hard to come by in construction law cases. This is because almost all construction contract cases are exactly that: contract cases. Between the economic loss rule and the Virginia Courts’ almost (though not completely) impregnable wall between tort and contract, punitive damages may seem completely out of the picture. Depending on your perspective and position on the construction project food chain, this fact can be either frustrating or comforting.

However, like all seemingly immutable laws, this one has an exception according to the Chesapeake County, Virginia Circuit Court. In Sawyer v. C.L. Pincus Jr. & Co. et. al. this Virginia court was faced with the following scenario. The defendants, a church and it’s contractor, were sued by Sawyer over a construction swale that was built partly on Sawyer’s property. According to the plaintiff, the only permission they gave to their neighbors at the church was to allow the church to build a drainage berm that did not encroach on their property. As stated above, the church and its contractor built a swale that encroached on the Sawyers’ property.

Continue reading Reckless Disregard is. . . Well. . .Reckless