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Risk Tip

Keep Complete Records for Construction Defect Claims

December 2011

The key to a successful defense of any construction defect claim against a contractor is maintaining and organizing complete records of the construction project. The more detailed the project documents and records, the easier it will be for the contractor's insurer to mount a successful defense of the claim.

Among the most critical records in a construction defect defense are schedules and cost estimates, quality control documents and procedures, and field activity and inspection logs. Another key component in countering allegations of contractor negligence is a well-maintained and thorough chronological file of project correspondence and memoranda -- specifically a complete record of change orders, meeting minutes, field diaries, inspection reports, e-mails, and product cut sheets. Project diaries should note daily weather, material deliveries, employees and subs present on the site each day, third-party visits (e.g., owner, architect), discovery of hidden conditions, discrepancies or other conflicts in plans and specs, and a summary of important conversations addressing any of these.

Many contractors structure their record-keeping in light of whatever statutes of repose are applicable to the project. But a better approach, made possible by advances in digitization of paper records, is to maintain construction records forever.

Richard E. Gray, ARM

National Director of Business Development

Engle Martin & Associates, Inc. 5180 Roswell Rd | Suite N100

Atlanta, Georgia 30342

O: 678.553.0786 | F: 678.553.0787 | TF: 800.818.5619 | M: 404.308.1111www.englemartin.com | rgray@englemartin.com

California Restricts Allowable Indemnity & AI Coverage in Construction Contracts

On October 9, the governor of California signed SB 474, which restricts the state's allowable scope of indemnity in construction contracts. Effective January 1, 2013, sections 2782 and 2783 of the California Civil Code will permit a party to a construction contract to require indemnification only with respect to the indemnitor's negligence. Previously, California placed this level of restriction only on subcontractor indemnification of a builder for a construction defect claim on a residential project. For other types of construction contracts, the only restriction on indemnification applied to indemnification for a party's sole negligence. Indemnification for parties' joint negligence was allowed. In a nutshell, this law transforms California from an intermediate form of indemnity state to a limited form of indemnity state.The limitations also apply to additional insured requirements, as noted in section 2782.05(b)(6):

This section does not apply to ... a provision in a construction contract that requires the promisor to purchase or maintain insurance covering the acts or omissions of the promisor, including additional insurance endorsements covering the acts or omissions of the promisor during ongoing and completed operations.

By limiting the scope of the insurance exception (which many states have) to additional insured coverage for the acts or omissions of the promisor, the statute effectively prohibits requiring additional insured coverage that would respond to one's own negligent acts.The law applies to contracts executed on or after January 1, 2013, and supersedes any choice-of-law rules that might otherwise apply. Further, any waiver of these provisions will be considered void and unenforceable as contrary to public policy. Contractors operating in California should consult their legal counsel about appropriate changes to their subcontract indemnification language before the law goes into effect in January.

This bill would expand the definition of “construction contract” for purposes of these provisions, to include agreements for renovations and would include agreements respecting, among other things, utility, water, sewer, oil, and gas lines.

for additional information, please see tab AB2738 & SB474

CALFORNIA - FLASH REPORT!

Governor Signs Bill Reforming "Serious Violation" Definition

October 2010; Effective January 2011

In a major victory for advocates of reform of the way serious violations are adjudicated by the Cal/OSH Appeals Board, Governor Arnold Schwarzenegger has signed AB 2774, perhaps the most significant occupational safety and health bill to come out of Sacramento in several years. AB 2774, authored by Sandre Swanson (D-Oakland) takes several bold steps in redefining what is a serious violation and enhancing communication between employers and the Division of Occupational Safety and Health (DOSH). (See linked story.)

AB 2774 rewrites California Labor Code 6432, replacing current language with a rebuttable presumption that a serious violation exists if DOSH demonstrates that there is a “reasonable possibility” that death or serious physical harm could result from the hazard.

Current language states that a serious violation exists if DOSH shows there is a substantial probability that death or serious physical harm could result from a violation. This requirement has made it difficult for DOSH to win before Cal/OSH Appeals Board, which interprets the requirement to mean that the division has to prove a 51% likelihood of death or serious injury. Administrative law judges routinely dismiss citations for serious violations or reclassify them to "general," even in fatality cases, based on this requirement.

One of the most important aspects for employers and labor groups in AB 2774 is the requirement that inspectors attempt to get specific information from employers before issuing a citation. The intent is to give employers a better idea of what they would be cited for and give them the opportunity to abate the alleged hazard or rebut the alleged violation.

The bill also adds a provision that would require the Appeals Board to accept testimony by DOSH inspectors on serious violations if they demonstrate their Cal/OSHA-mandated training is current. The board has in the past disqualified inspector testimony for failing to have “specific familiarity” about a hazard.

NSC: OSHA’s Top 10 Most Cited Violations

Oct 6, 2010 2:10 PM, By Laura Walter

On Oct. 5, OSHA revealed the top 10 most cited violations in fiscal year 2010 during a special session at the National Safety Council (NSC) Congress and Expo in San Diego, highlighting the agency’s enforcement efforts for fall protection, hazard communication, electrical safety and more.

Thomas Galassi, director of OSHA’s directorate of enforcement programs, shared the top 10 violations with NSC attendees on the expo floor. As expected, this year’s list did not deviate significantly from the top 10 violations in years past.

“Largely, we see a degree of consistency in these violations [from year to year],” Galassi said. “These violations relate to falls, contact with equipment and exposure to harmful substances.”

OSHA’s top 10 list of most cited violations for FY 2010 are:

1. Scaffolding, General

2. Fall Protection

3. Hazard Communication

4. Respiratory Protection

5. Ladders

6. Lockout/Tagout

7. Electrical, Wiring Methods

8. Powered Industrial Trucks

9. Electrical, General

10. Machine Guarding

According to Galassi, OSHA made approximately 94,000 citations in FY 2010. This list of top 10 represents between 48 and 49 percent of total violations issued.

April 28, 2010

OSHA will require safety training to be offered in a language workers understand

OSHA issued an enforcement memorandum; (https://www.osha.gov/dep/standards-policy-statement-memo-04-28-10.html)

directed at protecting Latino and other non-English speaking workers from workplace hazards. It directs compliance officers to ensure they check and verify that workers are receiving OSHA required training in a language they understand. "This directive conforms with Secretary Solis' clear and urgent goal of reducing injuries and illnesses among Latino and other vulnerable workers," said Assistant Secretary Michaels.

The following are excerpts from the enforce memorandum

Employer's Training Obligation

Many OSHA standards require that employees receive training so that work will be performed in a safe and healthful manner. Some of these standards require "training" or "instruction," others require "adequate" or "effective" training or instruction, and still others require training "in a manner" or "in language" that is understandable to employees. It is the Agency's position that, regardless of the precise regulatory language, the terms "train" and "instruct," as well as other synonyms, mean to present information in a manner that employees receiving it are capable of understanding. This follows from both the purpose of the standards -- providing employees with information that will allow work to be performed in a safe and healthful manner that complies with OSHA requirements -- and the basic definition that implies the information is presented in a manner the recipient is capable of understanding.

OSHA has a long and consistent history of interpreting its standards and other requirements to require employers to present information in a manner that their employees can understand. See, e.g., CPL 2-238(D)(1998) ("[i]f the employees receive job instructions in a language other than English, then training and information to be conveyed under the [hazard communication standard] will also need to be conducted in a foreign language"); letter from Russell B. Swanson to Chip MacDonald (1999) ("instruction that employers must provide under §1926.21 must be tailored to the employees' language and education....").

In order to assist employers in meeting their training obligations, OSHA has created a web-based assistance tool. The tool is intended to help employers with a Spanish-speaking workforce identify the Spanish-language outreach resources on OSHA's website. While the site includes links to Spanish-language resources, it is intended primarily for English-speaking and bilingual users. The site is located on OSHA's public website at the following address:

http://www.osha.gov/dcsp/compliance_assistance/quickstarts/hispanic/index_hispanic.html

Lead Renovation Certification Requirements

April 2010

Because older buildings often have lead paint, repair and reconstruction of these buildings pose hazards. So in June 2008, a federal Environmental Protection Agency (EPA) rule took effect requiring companies to meet safety requirements before doing such renovations.

The rule includes certification requirements for both renovation companies and training providers. Starting in October 2009, companies must receive EPA certification. After April 22, 2010, companies that haven’t received EPA certification won’t be permitted to “perform, offer, or claim to perform renovations” of target housing. Certification is good for 5 years and can be renewed in 5 year increments upon payment of the required fees.

The rule (§745.90) establishes 2 kinds of new certification: a certified renovator and a certified dust sampling technician. Both certifications require the person to successfully complete their respective course and pay the appropriate fee. A periodic refresher course and fee are required to maintain each certification.

The EPA Lead Renovation Rule

The EPA Lead; Renovation, Repair and Painting Program rule (codified in 40 CFR 745.80 — 745.339, ) covers the repair, remodeling, renovation and painting of “target housing,” defined as “any housing constructed before 1978, except housing for the elderly or persons with disabilities (unless any child under age 6 resides or is expected to reside in such housing) or any 0-bedroom dwelling.”

For further information, visit the EPA website at;

http://www.epa.gov/oppt/lead/pubs/renovaterightbrochure.pdf

for the Renovate it Right Brochure or visit the Paladin Risk Management, Ltd. web page “Sample Documents” for additional documentation.

Friday, March 19, 2010

FLASH REPORT!

Judge Tells Appeals Board to Try Again on Harris Case

A Sacramento County Superior Court judge has struck down a key portion of the Cal/OSH Appeals Board's Harris Construction Decision After Reconsideration (DAR), ruling that the Division of Occupational Safety and Health (DOSH) does not have the burden of proof to show that a "controlling employer" was in a position to abate a specific volatile condition to uphold a multiemployer worksite citation.

Judge Patrick Marlatte sent the Harris case back to the Appeals Board for a news DAR without that element. But he left open the possibility of an affirmative defense for employers. One employer representative attending this morning's hearing called a "narrow" ruling.

Judge Marlatte likened the issues be was deciding to an umpire calling balls and strikes. "It's pretty black letter," he said. "The board can't add that. The burden was wrongly placed." The jurist ruled that the board should have followed precedence in Overaa Construction, a seminal multiemployer worksite case that was decided by California's Third Circuit Court of Appeal. That court "strongly" indicated that the Appeals Board would commit "legal error" by imposing proof requirements going beyond the terms of Labor Code section 6400(b)(3), which codified the multiemployer worksite doctrine as law in 200's AB 1127.

Appeals Board Chief Counsel Jeff Mojcher argued that they facts in Overaa and Harris were completely different, and even if general contractor Harris had been able to read the mind of the subcontractor worker who erroneously pressurized a pipe he had intended to depressurize, leading to his injuries, the GC could not have known of the conditions that led to the incident. In such situations, how can a controlling employer take steps to correct a hazard, he asked.

The judge nonetheless said he would affirm his ruling. The two sides in the case will now wrangle over the final wording of the judgment. Mojcher tells Cal-OSHA Reporter that the board will have to confer before deciding whether to appeal the ruling.

Preventing the Five Greatest Construction Killers

Feb 1, 2010 12:00 PM, By Julie Carter

Falls, electrocution, struck by, caught between and transportation-related incidents are the top five killers of workers on construction sites.

In approximately 0.21 seconds, a Google search returns over 473,000 his for “construction worker killed.” It only takes 0.31 seconds to return 501,000 hits for “construction worker dies.”

According to preliminary data from the Bureau of Labor Statistics, construction workers suffered 969 deaths in the workplace in 2008, the most recent year information is available.

Although this represents a 20 percent decline from the 1,204 deaths in 2007, 969 families still lost loved ones in 2008. Construction has the highest rate of deaths of any private sector occupation, and accounted for one-fifth of all workplace deaths in 2008.

So, what can we do to prevent these needless deaths in our workplaces? OSHA's construction standard, 29 CFR 1926, is a good start.

FALLS

Falls are the leading cause of worker deaths in construction, and have been for many years. Why is this so? We have a fall protection standard, 29 CFR 1926, Subpart M. Are we ignoring the standards, or have we learned ways to outsmart them for production's sake? When the standard calls for fall protection, are we simply putting the worker into a harness and lanyard and calling it “fall protection” to meet the minimum requirements? And is this the best way to ensure the safety of the worker? Can we do more, such as engineer the hazard out with guardrail systems or some other means of protection?

One of the marvels of early 20th century construction is a testament to safe work practices and fall protection.

In 1933, during the middle of the Great Depression, work began on the 4-year project to build the world's longest suspension bridge, at a cost of $35 million. The workers who were hired to perform this dangerous work at great heights, in strong winds over roiling water and with fog moving in and out regularly, largely were inexperienced with steel erection or with construction in general.

Because of the economic situation in the country at the time, a well-paying job like this was much sought after, even if it was one of the most dangerous jobs in the world. Those who claimed to be ironworkers often came from very different backgrounds, but would buy identification from local residents so they would be allowed on the job. They would, however, claim to be “experienced” ironworkers, and therefore didn't need any training.

At the time, contractors estimated one fatality for every million dollars. As this was a $35 million project, 35 deaths were “budgeted” from the start.

The man charged with the design and engineering of the bridge was Joseph Strauss. He was a leader in bringing safety to the jobsite, especially in fall protection. He required workers to tie off with a lifeline, and those who didn't were fired.

The best-known engineered fall protection device on the project was the safety net Strauss had installed prior to beginning work on the roadbed segments. This cantilevered net ran the entire length of the roadway, and extended 10 feet out from either side, protecting workers from falling to certain death in the choppy waters of the bay. This net was installed at a cost of 130,000 Depression-era dollars. But the value added in saving lives proved worth it. Of the 19 men who fell into it and were later dubbed the “Halfway to Hell Club,” any one of those who hadn't been saved by that $130,000 net could have cost the project considerably through delays, work slowdowns and morale.

On Feb. 17, 1937, just months away from final completion and opening the bridge to traffic, a scaffold carrying 10 men gave way and fell through the net. Along with another worker who had fallen earlier, these were the only reported fatalities during the project.

The Golden Gate Bridge opened 73 years ago, almost 40 years before OSHA mandated these safe practices be included as routine for these hazardous activities. Joseph Strauss was a pioneer in the world of safety, and the fall protection methods he used on the bridge have been refined into state-of-the-art systems. One may even purchase ready-to-install systems that can be set up in minutes. Personal fall arrest systems have become relatively comfortable to wear and easy to use.

ELECTROCUTION

When we read about a worker being electrocuted, how can we be certain it won't happen to one of ours? The electrical standard, Subpart K, also has been around awhile. Again, we seem to be complacent enough to think posting signs will satisfy the requirements.

We need to examine each jobsite with a view for the potential hazards, as well as those that are obvious. Overhead power lines are easy to spot, and yet easily missed when the equipment operator hasn't been warned or adequately trained in the dangers. A faultily wired receptacle or junction box can have deadly consequences when an unsuspecting worker comes into contact with it. Saving a couple of bucks or hours by “temporarily” wiring up a device improperly can cost someone their life.

The advances in technology have served us well in electrical safety. Ground fault circuit interrupters, updated electrical codes and equipment, double insulated tools and grounding all have helped to eliminate electrocutions. However, as much as these devices and parts are manufactured to provide the worker with protection, nothing protects them from the misuse or disregard of regulations and safe work practices.

STRUCK BY

More and more workers each year are falling victim to those incidents where they are “struck by” an object or construction equipment. According to OSHA, approximately 75 percent of those incidents involve heavy equipment.

Swinging, suspended or collapsing loads contribute a large portion of the remaining share. Both Subpart G - Signs, Signals and Barricades - and Subpart O - Motorized Vehicles, Mechanized Equipment and Marine Operations - contain clear language regarding clearances for workers to avoid this type of incident. Subpart N, Cranes and Derricks, has provisions to keep workers away from the moving parts of cranes and their loads. Subpart Q, Concrete and Masonry Construction, spells it out for us that no worker shall be permitted under a live load.

Workers struck by equipment and objects still are part of the top killers, even after the standards tell us we “shall” have audible warning systems, and we “shall” remain clear of moving equipment and overhead loads.

TRENCHING AND EXCAVATION

The fourth of the top five construction killers - excavations - is covered in OSHA's Subpart P; one of the most under-utilized standards in the industry. Sure, the big companies are aware of the requirements and will most times budget for trench and excavation protection from the planning stages, but there still are those who take the chance that it will never happen to them.

Many trench collapse or cave-in deaths involve smaller construction companies, performing a short duration operation, where proper trench protection isn't seen as a necessity. Protection like that just isn't part of the bid process. When the market is so competitive, there's just no room for “extras.”

Trenching and excavation deaths keep occurring, although OSHA is quite clear on when, where and how to protect the worker.

TRANSPORTATION

The fifth, but by no means last, of the top killers of construction workers is transportation-related accidents. We often don't think of transportation as being part of construction, per se, but nevertheless, nothing can happen without it. Material delivery and transporting equipment, supplies and workers are everyday activities.

A roadway is not a closed work zone, yet we travel the roadways frequently during the course of a typical day. The long hours worked in construction activities, combined with the ever-increasing distracted driver, place transportation-related deaths among the top of these rankings.

Transportation deaths in construction are on the rise. If we don't get out ahead of them, they quickly will become our No. 1 killer.

Every company needs to have a safe driver policy, including drivers' license checks, insurance background checks, cell phone usage policy and seat belt policy, as a start. Those with commercial driving enterprises need to follow the Federal Motor Carrier Safety Administration policies on driver qualifications, and ensure their drivers are qualified to operate the vehicles assigned to them. They also need to follow restrictions on the number of hours driver are allowed behind the wheel at any one time.

OSHA standards now are 40 years old. Most of today's work force never has known a time when their work wasn't governed by the agency. OSHA standards are the minimum requirements for safety in construction. So why are we not following even the bare minimum and allowing people to die on our jobsites?

There almost seems to be a perception that OSHA standards are voluntary - they are not. With the availability of immediate news flashes whenever tragedy strikes, we hear about these deaths almost as soon as they happen. And yet some contractors and workers still believe their workers and jobsites are immune to the hazards.

We can provide our work force with a safe working environment. Adhering to the regulations found in 29 CFR 1926 is a good start. Training our workers in safe work practices is the next step. Making the information available to them, and encouraging them to follow the rules, will result in a more productive workplace. When shortcuts are taken, there is a price to pay, whether through death, injury or something less dramatic, such as having to re-do the job.

Production, quality and safety are a three-legged stool. Take one away, and the stool will collapse. Joseph Strauss understood this concept.

The success of the Golden Gate Bridge construction is a great example of how putting protective measures into place saves lives. It is that kind of forward thinking and planning for safety that will enable the change in those death numbers and allow the construction industry to be a leader in safety in one of the most hazardous occupations in the country.

Julie Carter, CSP, CHST, works with Traylor Bros. Inc. as safety manager assigned to the Hurricane Risk Reduction Project in the New Orleans, La., area. She is a professional member of the American Society of Safety Engineers, sits on the National Safety Council's Board of Delegates and is vice chair for NSC's Construction Division.

California Approves Requirement for Fire Sprinklers in All New Homes Beginning in 2011

Jan. 13 2010

The National Fire Sprinkler Association (NFSA), the longest-tenured fire sprinkler advocacy organization in the U.S., announces the State of California has adopted building code changes that will require all new one- and two-family homes and townhouses built in the state starting January 1, 2011, to be equipped with life-saving fire sprinkler systems.

The California State Building Standards Commission voted yesterday unanimously by a margin of 10-0 in favor of adopting the 2010 California Residential Code, which includes the 2009 International Residential Code as established by the International Code Council in September 2008. The residential sprinkler requirement was voted into the 2009 IRC Code by building code officials from all over the U.S., gaining more than two-thirds of the vote. This demonstrated that officials very clearly see the need to require sprinkler technology as a life-saving measure. The fire sprinkler requirement was recently reaffirmed at an ICC vote in Baltimore in late October 2009."

This is a monumental victory for the residents and fire service professionals in California as the state is providing its residents and fire service professionals with an important life safety measure which will provide residents with peace of mind in their homes and fire service professionals extra time to perform their jobs," said NFSA President John Viniello. "I would like to applaud all of the officials who have worked tirelessly in the state to secure the adoption of the 2009 IRC Code. California now joins Pennsylvania and New Hampshire as the only states in the nation to adopt the 2009 IRC Code at the statewide level and will serve as an excellent example on why other states should adopt this important life-safety regulation."

The inclusion of residential fire sprinkler requirements in the 2009 IRC is a response to the growing fire problem in the U.S. About 85 percent of all fires occur in the home and many are fueled by new "lightweight" construction and more flammable home contents. Smoke detectors may no longer be enough in residential fire protection, as the time to escape a house fire has dwindled from 17 minutes 20 years ago to three minutes today. This poses a severe risk to firefighters as they now have less time to do their job and save residents' lives and property.

SB800 The right to repair "fix it" law was tested in court

As we get ready to close 2009, I have been invited to meet with a few clients to discuss SB800 and its impact on their specific situation. As I was putting together my presentation materials, it struck me that SB800 marks its sixth year next month as a California construction law. SB800 became law on January 1, 2003. It establishes a mandatory process before certain types of construction defect suits could be filed. The bill applies to defects alleged by a homeowner in new residential construction, but does not apply to condominium conversions. The bill defines what constitutes a "defect" for virtually all aspects of a residential building and its component systems. The statutory process outlined by SB800 is to be exhausted before a lawsuit could be entertained by the courts. A Homeowner initiates the process by first submitting a written claim to the Builder's designated agent. Should there be no offer from the Builder to repair the claimed defects, or if the Builder fails to strictly follow the process, the Homeowner may proceed with the filing of a lawsuit.

Many of us who work in the industry are not aware that the first case testing the SB800 law came to pass in last August 2009. It was heard by the Court of Appeal of the State of California’s Fourth Appellate District in the case “Standard Pacific Corporation vs. The Superior Court of San Bernardino County; Joan Garlow et al.”.

The case involved a construction defect lawsuit filed by several Homeowners against Standard Pacific Corporation in 2008. The defense claimed that the Homeowners did not follow the SB800’s notice and opportunity to repair requirements. Standard Pacific moved to stay pending the homeowners’ compliance with the law. The Homeowners’ legal team argued that in order to be entitled to a notice and an opportunity to repair the functionality defects, the builder must first prove that it had “opted-in” to the law by proving that the Builder had complied with each and every one of the Builder’s duties as set forth in Civil Code Section 912. The Trial Court ruled against the defense and accepted the homeowners’ arguments. Standard Pacific appealed the decision to the California Court of Appeal.

On August 14, 2009, the Court of Appeal overturned the Trial Court’s ruling, stating that the pre-litigation procedures are mandatory and that the Builders must be given notice and opportunity to repair in the first instance.

If you would like to receive additional information regrading this case, please email us info@paladinriskmanagement.com and we will be happy to provide the materials.

Electronic Discovery Requires Cooperation between Opposing Counsel

In a construction defect case between a contractor and owner, the owner agreed to produce electronically stored information (ESI), including e-mails of the construction manager for the project who was not a party to the lawsuit. The parties could not agree to what “keyword” search terms were appropriate for conducting the electronic discovery. The owner proposed just a few keyword terms. The plaintiff, in contrast, proposed thousands of search terms that would have caused the CM to turn over its entire email data base covering all of its projects worldwide instead of limiting the search to the individual project. A magistrate judge for the United States District Court for the Southern District of New York had to step in to prevent unduly burdensome discovery by admonishing counsel in the action to cooperate with each other to “carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of false positives.”

In William A. Gross Construction Associates v. American Manufacturers Mutual Insurance Company, 256 F.R.D. 134 ( U.S. S.D. New York , 2009), the case involved a multi-million dollar dispute over alleged defects and delay in the construction of the Bronx County Hall of Justice. The project owner was the Dormitory Authority of the State of New York (DASNY). The owner’s construction manager was Hill International. The owner agreed to produce Hill’s email related to the project and proposed a number of keywords to be used in search the Hill email data base to produce the documents. Opposing counsel, however, according to the court “requested the use of thousands of additional search terms, emphasizing the construction issues they were involved in, such as “sidewalk,” “change order,” “driveway,” “access,” “alarm,” “budget,” “build”, “claim,” “delay,” “elevator,” “electrical,” - you get the picture.”

This use of such extensive keywords, said the court, “would require production of the entire Hill email database, since Hill’s business is construction management, and those terms would be used for any construction project.” The court “found itself in the uncomfortable position of having to craft a keyword search methodology for the parties, without adequate information from the parties (and Hill).” With obvious frustration at the situation, the court stated:

“This case is just the latest example of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate (indeed here, apparently without any) discussion with those who wrote the emails.”

While keyword searches are recognized by the court as appropriate and helpful for ESI search and retrieval, “the proper selection and implementation obviously, involves technical, if not scientific knowledge.” Quoting from another U.S. Magistrate decision, the court says the proper selection of keywords “requires careful advance planning by persons qualified to design effective search methodology.”

“The implementation of the methodology selected should be tested for quality assurance; and the party selecting the methodology must be prepared to explain the rationale for the method chosen to the court, demonstrate that is appropriate for the task, and show that it was properly implemented.”

In conclusion, the court ordered the following:

Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It s time that the Bar–even those lawyers who did not come of age in the computer era–understand this.”

About the author: All articles in this issue of the ConstructionRisk.Com Report are written by J. Kent Holland, a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners. He is also founder and president of ConstructionRisk, LLC, a consulting firm providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk.com Report, Vol. 11 No. 10 (Dec 2009).

Soda machine attacker wins workers' comp

8/14/2009

Employees typically earn workers’ compensation for injuries incurred “in the course of work.” In Illinois, it seems, attacking the company vending machine is all in a day’s work.

The case: Clinton Dwyer shook the machine in a bid to help a co-worker dislodge her tasty treat. No luck. So he gave the machine a hockey-like check and fractured his hip in the process. He filed for workers’ comp. The company fought it, but the court agreed with Dwyer, saying that the snack machine had previous problems, and the company had no policy against shaking it. (Circuit City v. Dwyer)

Note: Vending-machine vigilantes are also covered in Oregon. Two years ago, a court in that state ruled that a worker who hurt his foot while helping a co-worker extricate candy from a vending machine should receive workers’ comp. (Washington Group Intl. v. Barela)

Response

Dave Torrey ( Author/Admin)

said this on 15 Aug 2009 6:41:02 PM EDT

It wasn't a soda machine; it was dry goods vending machine -- his work colleague wanted her Frito's. In addition, the test in Illinois is whether the injury occurred in the course of and arose out of the employment, not the "course of work." The court's decision is fairly liberal, but not out of the mainstream of cases that have awarded benefits in gray areas like this for many decades. The result may sound extreme, but it was predictable.