When OSHA Cites You
April 22, 2024 —
Michael Metz-Topodas - Construction ExecutiveWith the strong bonds that form among construction project teams, workers looking out for each other helps keep safety foremost in everyone’s mind. But sometimes, even the very best intentions alone can’t prevent an occasional misstep—a forgotten hard hat, a sagging rope line—which can and often does result in an OSHA citation. These regulatory reminders can bring unfortunate consequences: penalties, higher insurance premiums, potential worker injury claims, loss of bidding eligibility, loss of reputation and even public embarrassment, because citations are published on OSHA’s website.
Due to citations’ adverse effects, contractors have incentives to minimize them. They can do this by asserting available defenses, because a citation is only an alleged violation, not a confirmed one. But making defenses available begins well before a citation is issued, well before OSHA arrives to a construction site and well before a violation even occurs. Instead, contractors’ ongoing safety programs should incorporate the necessary measures to preserve OSHA citation defenses in three key areas: lack of employee exposure, lack of employer knowledge and impossibility.
EMPLOYEE EXPOSURE
To sustain a citation against an employer, OSHA must not only identify an applicable standard that the company violated but also show that the violation exposed employees to hazards and risk of injury. Absent evidence of actual exposure, OSHA often makes this showing by asserting that performing job functions necessarily exposes employees to the cited hazard.
Reprinted courtesy of
Michael Metz-Topodas, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Read the full story...Mr. Metz-Topodas may be contacted at
michael.metz-topodas@saul.com
Partner John Toohey is Nominated for West Coast Casualty’s Jerrold S. Oliver Award of Excellence!
March 11, 2024 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPBremer Whyte Brown & O’Meara, LLP is honored to share that Newport Beach Partner John Toohey is nominated for West Coast Casualty’s 2024 Jerrold S. Oliver Award of Excellence!
Every year, West Coast Casualty recognizes an individual who is committed, trustworthy, and has contributed years to the betterment of the construction defect community. The award is named after the late Judge Jerrold S. Oliver who is considered a “founding father” in the alternate resolution process in construction claims and litigation. Each year, members of the construction community are asked to nominate individuals who invoke the same spirit as Judge Oliver.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
Former NYC Condo Empire Executive Arrested for Larceny, Tax Fraud
March 11, 2024 —
Ava Benny-Morrison - BloombergA former New York executive facing lawsuits over the collapse of real estate empire HFZ Capital Group has been arrested in Miami, charged with grand larceny and tax fraud.
Nir Meir, 48, was arrested Monday, a spokesperson for the Miami-Dade Police Department confirmed. Meir was detained on an out-of-state warrant, suggesting his arrest may be the result of an investigation by law enforcement in New York.
A spokesperson for the Manhattan District Attorney’s Office didn’t immediately respond to a request for comment. Meir’s attorney also didn’t immediately respond to an email.
Meir, the former managing principal of HFZ Capital Group, has been battling multiple lawsuits in New York over his involvement in the once-prominent real estate firm. He’s denied wrongdoing.
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Ava Benny-Morrison, Bloomberg
Partner Jason Taylor and Senior Associate Danielle Kegley Successful in Appeal of Summary Disposition on Priority of Coverage Dispute in the Michigan Court of Appeals
December 11, 2023 —
Jason Taylor & Danielle K. Kegley - Traub LiebermanIn this appeal brought before the Michigan Court of Appeals, the appellate court ruled in favor of Traub Lieberman’s insurance carrier client (the “Carrier” or “Client”), affirming an award of summary disposition in favor of the Carrier in a coverage lawsuit. The coverage lawsuit involved a priority dispute between the Carrier and another insurer over which company’s policy had responsibility to cover the defense of their mutual insured, a heating and cooling contractor (the “Insured”) in an underlying lawsuit alleging carbon monoxide poisoning. The Carrier issued a contractor’s pollution liability policy and the other insurer issued a commercial general liability policy to the Insurer. Both the Carrier and the other insurer filed cross-motions for summary disposition in the trial court on the priority of coverage issue. The trial court granted the Client’s motion, holding that the CGL carrier was the primary insurer based on the language in the policies’ “other insurance” clauses. The trial court rejected the CGL carrier’s argument to apply the “total policy insuring intent” or “closest to the risk” tests—tests which Michigan courts have not adopted. Specifically, the court rejected the CGL carrier’s argument that the Client’s contractor’s pollution liability policy was more specifically tailored to the loss in the underlying lawsuit. The trial court also rejected CGL carrier’s alternative argument that the “other insurance” clauses in the policies were irreconcilable, requiring a pro rata allocation based on the respective limits of the policies.
Reprinted courtesy of
Jason Taylor, Traub Lieberman and
Danielle K. Kegley, Traub Lieberman
Mr. Taylor may be contacted at jtaylor@tlsslaw.com
Ms. Kegley may be contacted at dkegley@tlsslaw.com
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Newmeyer Dillion Announces Jessica Garland as Its Newest Partner
January 16, 2024 —
Newmeyer DillionNEWPORT BEACH, CALIF. – January 10, 2024 – Prominent business and real estate law firm Newmeyer Dillion is pleased to announce that Newport Beach attorney Jessica Garland has been elected to partnership.
Garland focuses her practice on employment law and construction law. In her employment practice, Jessica defends companies against numerous types of employment-related claims including claims for discrimination, wrongful termination, harassment, retaliation, unfair competition, wage and hour violations, employee misclassifications, and Cal/OSHA citations.
Garland's practice also includes work in residential and commercial construction. Jessica represents residential developers in complex, multi-party construction defect disputes. In commercial construction, Jessica is focused on defending general contractors in all aspects of construction litigation including delay claims, mechanic's lien claims, defect litigation claims, ADA claims, and construction contract disputes.
About Newmeyer Dillion
For over 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that achieve client objectives in diverse industries. With over 60 attorneys working as a cohesive team to represent clients in all aspects of business, employment, real estate, environmental/land use, privacy & data security and insurance law, Newmeyer Dillion delivers holistic and integrated legal services tailored to propel each client's operations, growth, and profits. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California and Nevada, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.newmeyerdillion.com.
Experts: Best Bet in $300M Osage Nation Wind Farm Dispute Is Negotiation
March 11, 2024 —
Daniel Tyson - Engineering News-RecordNearly two months after a federal judge ruled that renewables developer Enel Green Power North America must deconstruct 84 land-based wind turbines because it did not secure mineral rights on Osage Nation land in northern Oklahoma, two energy sector attorneys say the unit of an Italy-based company must negotiate with the tribe.
Reprinted courtesy of
Daniel Tyson, Engineering News-Record
Mr. Tyson may be contacted at tysond@enr.com
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Cincinnati Team Secures Summary Judgment for Paving Company in Trip-and-Fall Case
February 05, 2024 —
Lewis BrisboisCincinnati, Ohio (January 25, 2024) - In a recent decision by the Oldham County Circuit Court, Lewis Brisbois Partner Andrew Weber and Associate Jason Paskan obtained summary judgment for a paving company client after successfully arguing that their client did not owe the plaintiff a duty at the time leading up to her trip and fall. Although the court concluded that there was a genuine issue of fact as to whether a parking space wheel stop actually caused her fall, the court noted that whether the wheel stop “constituted an unreasonably dangerous condition necessitating a duty to eliminate them or warn of them is an entirely different matter.” Rebecca Reynolds v. Baptist Healthcare System, Inc., et al., Oldham Circuit Court Case No. 21-CI-00236, *6 (Dec. 21, 2023).
The plaintiff in Reynolds drove to the hospital with her sister-in-law for medical testing. Id. at * 2. While both had been to the hospital before, due to COVID and construction in the emergency department, they had to take a different entrance into the hospital. Id. In the plaintiff’s attempt to navigate the parking lot, she allegedly tripped over a black wheel stop that was covered by a shadow. Id. The plaintiff sued the hospital as the landowner and the paving company working in the hospital’s parking lot, among others, under the theory that the failure to stripe the wheel stop, closing off spaces with the black wheel stops, or posting warnings about the condition of the parking lot would have prevented her fall. Id. at *2-3.
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Lewis Brisbois
The Importance of the Recent Amendment to Rule 702 of the Federal Rules of Evidence
January 22, 2024 —
Andrew G. Vicknair - The Dispute ResolverEvery litigator understands that expert witnesses play a key role in litigation, especially when dealing with construction issues. Expert testimony at trial can be a deciding factor in persuading a judge or jury in your client’s favor. It is so important that, as parties get closer to trial, litigators often spend considerable time filing motions to limit or disqualify certain aspects of expert testimony in an effort to gain an advantage at trial. Because experts are a key aspect of the trial process, it is important to understand the various rules governing use of expert testimony, primarily Rule 702 of the Federal Rules of Evidence.
On December 1, 2023, amendments to Rule 702 of the Federal Rules of Evidence went into effect which added the language in underline below and removed the language which is crossed out:
Rule 702. Testimony by Expert Witness
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
Read the full story...Reprinted courtesy of
Andrew G. Vicknair, D'Arcy Vicknair, LLCMr. Vicknair may be contacted at
agv@darcyvicknair.com
