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Could LEED certification of new buildings cause increased injury rates for construction workers? Matthew Hallowell, an assistant professor in the Civil, Environmental and Architectural Engineering Department at the University of Colorado at Boulder, thinks so. A recent set of articles authored by Hallowell and several co-authors published or in review by the Journal of Construction Engineering and Management analyzed LEED credits and conducted field research on the hazards related to constructing buildings that will be registered under the LEED system. The articles found that twelve LEED credits contribute to increased hazards for construction workers. According to the author’s research, these hazards for construction workers include:

– A 24% increase in injuries resulting from slips and falls while installing heavy solar panels on roofs painted white in order to reflect sunlight;

– A 36% increase in cuts and abrasions when entering recycling dumpsters to retrieve improperly discarded materials;

– An increase in falls when green roofs are installed by landscaping contractors not accustomed to working at height; and

– An increase in falls when workers spend increased time at height installing sky lights to provide day lighting or performing time-intensive wiring for lighting sensors.

The articles do note that worker safety under LEED is improved by the use of lower VOC adhesives and sealants. In all, Hallowell claims that a building cannot be considered sustainable without accounting for the health of construction workers.

But should we blame LEED for these hazards? Several of these risks and related mitigation strategies predate LEED and apply equally to any large construction project, including increased emphasis on fall protection procedures, reducing the time workers spend in hazardous situations, and increased protections against hazardous chemicals.

Further, several of the potential hazards Hallowell references could be addressed by additional safety features for construction practices that could be introduced by regulators or contractors. For example, the articles cite potential injuries caused by installing white solar roofing panels, which can be heavier and more slippery than traditional black roofing materials and can reflect light into workers’ eyes. The authors recommend rubber walk pads and safety eyewear to combat these problems, safety measures that are not noted by LEED.

The U.S. Green Building Council, which oversees LEED, has taken notice of potential safety hazards. Brendan Owens, a USGBC representative, said he was surprised by Hallowell’s findings and noted that USGBC is working with the National Institute for Occupational Safety and Health to evaluate these safety issues. While it may be too late for the USGBC to include safety-related changes for the forthcoming update to the LEED rating system, called LEED 2012, safety concerns will likely play a larger role in future updates to the rating system.

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Colorado’s Regional Transportation District (RTD), the public transit provider for the Denver Metro area, is hopeful that public-private partnerships, including unsolicited P3 bids, will accelerate the completion of the FasTracks program. FasTracks, a voter-approved transit expansion program aimed at better connecting the Denver Metro area, includes 122 miles of commuter and light rail, 18 miles of bus rapid transit service, 21,000 new parking spaces, redevelopment of Denver’s Union Station and redirected bus services.

Continue Reading ›

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Maryland’s Lt. Governor Anthony Brown led a joint executive and legislative commission to make recommendations for modernizing Maryland’s statutory framework for P3s. The Commission’s work led to legislation, designated as SB358/HB576, that passed the House of Delegates this week and is expected to pass the Senate in the coming days. The primary goal of the legislation is to address Maryland’s critical infrastructure needs through expertly structured public-private partnerships. The various Maryland departments that oversee capital projects found that increased use of P3s could contribute as much as $315 million to the State’s capital budget and create perhaps as much a 4,000 jobs.

Jeffrey Gans, a partner in Pillsbury’s Construction practice and among those leading Pillsbury’s P3 practice, testified in support of the bill before both Houses in the Maryland General Assembly. “The availability of capital is the most often recognized benefit of a public-private partnership. But as important, is the fact that once the legislation takes effect, Maryland will have at its disposal the ingenuity and entrepenurial spirit that is the life blood of the free market.” Mr. Gans’ testimony was in specific reference to the language in the legislation that permits unsolicited P3 proposals to be made to any State agency authorized to enter a P3. “The expertise of the best best and the brightest the market has to offer will be motivated to find innovative and profitable solutions to Maryland’s infrastructure needs,” Gans said.

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Can anyone claim that they read their homeowner’s insurance policy before they had a claim to submit? That’s what I thought. I don’t know whether Larry Ward read his before he had a claim, but he’s read it now, and so have several judges and numerous lawyers. Based on a recent decision from the U.S. Court of Appeals for the Fourth Circuit, the judges and clerks of the Virginia Supreme Court will be reading it too.

Ward submitted a claim to his property insurance carrier when he discovered that his new home was suffering damage from Chinese Drywall. The carrier denied his claim and filed a declaratory judgment action in federal court for the Eastern District of Virginia (the “Rocket Docket” for those not familiar with it). The district court granted summary judgment in favor of the carrier and Ward appealed. The Fourth Circuit did not affirm or reverse. Instead, the court concluded that the case involved unsettled questions of Virginia law, and certified the question to the Virginia Supreme Court.

More, after the jump.

The policy is an all risk policy on a standard form. It covers all risk of direct physical loss to the property covered by the policy. Sounds easy, right? If your property is damaged, you’ve got coverage.

Not so fast, says the carrier. After issuing a broad coverage grant, the policy chips away at the coverage by excluding damage caused by several specific “causes of loss.” The district court agreed that the damage by Chinese drywall triggered these exclusions. The Fourth Circuit, noting Ward’s argument that they are ambiguous, concluded that Virginia law is unsettled on the point. The court accordingly asked the Virginia Supreme Court to answer this question:

1. For purposes of interpreting an “all risk” homeowners insurance policy, is any damage resulting from this drywall unambiguously excluded from coverage under the policy because it is loss caused by:
(a) “mechanical breakdown, latent defect,
inherent vice, or any quality in property that causes it to damage itself”;
(b) “faulty, inadequate, or defective materials”;
(c) “rust or other corrosion”; or (d) “pollutants,” where pollutant is defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke,
vapor, soot, fumes, acids, alkalis,
chemicals and waste?

For what it’s worth, an intermediate appellate court in Louisiana found that the exclusions apply under Louisiana law. You can see that opinion here.

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According to this article by Ben Nuckols, a team of surveyors is in town. They are here to figure out if the Washington Monument shifted or sunk during the 5.8-magnitude earthquake that hit our Nation’s capital in August of last year. Although the monument is structurally sound, it will remain closed until August 2013 for repairs. The surveyors’ preliminary results are expected in two weeks.

WashMon1.jpg For people living in an area not prone to having earthquakes, it was quite a jarring experience. In fact, one of my colleagues went as far as to take cover under his desk while yelling warnings to our entire floor, but that is beside the point. One can only imagine the thoughts racing through the minds of the employees and tourists in the Washington Monument at the time. Some of the reactions of the people – as well as the damage from the interior – were captured by video camera installed inside the Monument. You can watch videos at the 500 foot level from three different views on the National Park Service website.

Let’s all hope the surveyors’ findings do not reveal the Washington Monument is tilted as a result of last year’s earthquake. Although, even if the obelisk remains in perfect position, I may just keep my feet planted on the ground after watching those videos!

Photo Credit: Samer Farha

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Tappan Zee Bridge.jpgWhen we posted yesterday about the RFP for the Tappan Zee Bridge replacement, we perhaps missed the most important aspect of the Instructions to Bidders: No Obligation to Award. (It’s on page 40, for those keeping track.) Usually this sort of provision is a safety valve. Here, it might be more. The owner apparently still doesn’t know where the money will come from. Bloomberg is reporting that a bill is working its way through the New York Legislature to allow Public Private Partnership funding for . . . the Tappan Zee Bridge Replacement.

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The RFP is out for the replacement for the Tappan Zee Bridge. Before you decide that you want to submit a bid, let me break the bad news to you: Unless you’re one of the four shortlisted firms who made it through the qualifications stage, which you can see here you’re a day late and a dollar short. Tappan Zee Bridge.jpg
(No surprises on the list; the consortia are headed by Bechtel, Dragados, Fluor and Kiewit.) Here’s worse news: If you’re hearing this for the first time now, you’re probably living under a rock. This old bridge is nearing the end of its lifespan.

So, they’re building a new one. We’ve been following this project here at Gravel2gavel and we’ve been waiting to see the RFP. Whenever someone will be building an iconic project, it’s always interesting to see the details. Now we can, here.

Some observations, after the jump.

A few quick observations, starting with timing. There’s been a lot of talk lately about infrastructure investment in this country, but the New York State Thruway Authority’s actions are speaking louder than most anyone else’s words. According to their schedule, proposals are due July 27, the Authority will select a proposal in September and issue a Notice to Proceed in October.

Section 1.11 of the Instructions to Bidders requires the Proposers to sign a confidentiality and non-disclosure agreement before the Authority sends any RFP documents. This is strange because we’re not Proposers here at Gravel2gavel, but we managed to pull down the RFP documents which are publicly available and re-broadcast them to the world.

Now that I’ve been a bit snarky, I’ll concede that the publicly available documents are redacted in certain places including — not surprisingly — parts that you’d be really interested in, such as pages 123 and 124 of Appendix I, which is all about Existing and Future Requirements for Intelligent Transportation System Elements.

Back to timing. One way the Authority has been able to speed the project along is to issue a Design Build RFP. In order to do that, the Authority is taking advantage of new regulations that allow for environmental reviews of a design build project.

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Earlier this month the Department of Energy announced a 6 year, $180 million initiative to boost the Nation’s wind power capabilities. Starting with $20 million this year, the DOE will spend the money on up to four innovative offshore wind energy installations across the United States. The DOE says the initiative will help move the U.S. closer to harnessing the estimated 4,000 gigawatts of power that could be generated from wind in the Atlantic and Pacific oceans, the Gulf of Mexico, and the Great Lakes.

The money will be allocated through a competitive solicitation and will be awarded to a consortia with representatives from developers, equipment suppliers, researchers and marine contractors. Awarded funds can be used to fund up to 80 percent of the project design costs and 50 percent of the installation costs. The deadline for Letters of intent is March 30 and applications are due on May 31, 2012.

For the press release click here. For information and application details, visit The DOE website here.

More after the jump.

The DOE’s program was announced just days after a new obstacle arose to one high-profile offshore project. Dominion Resources Inc., wrote a letter to the Department of the Interior to oppose the creation for a right of way in favor of the Atlantic Wind Connection (AWC) project. The AWC project would install a power transmission line or backbone from New York to Virginia to which offshore wind farms would connect in order to carry the power to customers on the East coast. We previously reported on the AWC project here.

Dominion’s objection was, in part, based on the concern that by granting the right of way under the current circumstances would unfairly advantage AWC at the expense of other, and perhaps better, transmission projects. In Dominion’s view, the transmission line should follow, not precede the issuance of off-shore wind farm leases.

More information regarding the growing dispute can be read in this Daily Press article. You can find more more information regarding AWC here.

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“Does an insurance broker, after procuring an insurance policy for a developer on a construction project, owe a duty to apprise a subcontractor that was later added as an insured under that policy of the insurance company’s subsequent insolvency?”

In this issue of first impression in California, the Fourth District Court of Appeals said “no.”  Pacific Rim Mechanical Contractors, Inc. v. Aon Risk Insurance Services West, Inc. — Cal.Rptr.3d —-, 2012 WL 621346 (Cal.App.4 Dist.).

A quick background: developer (Bosa) engaged insurance broker (Aon) to obtain insurance for a project in downtown San Diego.  Through Aon, BOSA created an OCIP from Legion.  Under the OCIP, Legion provided liability insurance to every contractor and subcontractor on the project.  Bosa later subcontracted with Pacific Rim (PacRim), who became an enrolled party on the OCIP.  After the project was complete, Legion became insolvent.  And apparently subcontractor PacRim was the last to find out. 

Six years after the project was completed, when the homeowner’s association filed a lawsuit for construction defects, a series of cross- and counterclaims followed.  At issue in this appeal were PacRim’s claims against Aon and Bosa begging the question:  who should have notified PacRim that the OCIP insurer became insolvent?

Insurance Broker’s Duty?

Turning first to the insurance broker, the court held that Aon had no duty to inform PacRim of Legion’s insolvency.  Under well-settled California law, insurance brokers owe a limited duty “to use reasonable care, diligence, and judgment in procuring the insurance requested by an insured.”  The court declined to create and impose on the insurance broker a new legal duty of notification after the policy is procured.  According to the court, PacRim’s claims against Aon failed as a matter of law because “PacRim’s claims are based entirely on the allegation that Aon failed to satisfy a duty that California law does not recognize.”

The court rejected PacRim’s argument that public policy considerations warranted imposing such a duty on Aon.  Noting that other states have enacted statutes imposing such a duty on brokers – and California has not – the court agreed with Aon that it should remain the province of the Legislature.

The court further observed that PacRim was not merely seeking to impose a “narrow duty” on insurance brokers to notify insureds when the broker has actual knowledge of insurer’s insolvency.  Instead, PacRim asked the brokers to notify an insured of “any adverse changes in its financial condition.”  This would necessarily include a duty of monitoring insurers and would present uncertainty as to when the broker’s duty arises.  This would fundamentally change the relationship between brokers and their insureds – a step the court refused to take.

The court cited to a California Insurance statute and noted that “if anyone had a duty to inform PacRim of Legion’s insolvency, it was Legion.”  For obvious reasons, pursuing Legion for violating this statute would have likely been a dead end for PacRim.  In a brief two paragraphs, the court agreed with the lower court that Bosa breached its contractual duty to inform PacRim of Legion’s insolvency. 

California Stands its Ground

In a lengthier portion of the opinion, the court rebuffed PacRim’s assertion that the court should “join with every other state to consider the issue by recognizing an insurance broker’s duty to share its actual knowledge of the insurer’s insolvency with the insured.”  First, the court cited examples of other states that have refused to impose such a duty on a broker after it procured the insurance policy.  Further, the court distinguished the cases that PacRim cited, because in almost all of those cases, the plaintiff insured was the broker’s client.  Here, Bosa was Aon’s client – PacRim was not.  Accordingly, the court declined to follow the out-of-state authority.

Why is This Important to You?

Back to our original question: where does that leave you if you find yourself in a position of needing to rely on your insurer, only to find out your insurer is insolvent?  At the risk of stating the obvious, you will be in the best position if you have advanced notice of your insurer’s pending insolvency.  That way, you can do like PacRim alleged it would have done – procure alternate insurance.  But since you may not always (or ever) have such advance notice, you need to find another way to protect yourself.  Because – at least in California – you cannot rely on your insurance broker to notify you of adverse changes in your insurer’s financial condition.

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Often on a construction project an insurer will point to the conduct of one insured contractor to exclude coverage for a different insured contractor under the same policy. Inevitably the innocent contractor points to the Separation of Insureds provision, which is a common provision in many insurance policies, to argue that each insured must be treated as the only insured and, therefore, the conduct of one should not impact coverage for another. A fight then ensues over the scope of the provision.

A recent Seventh Circuit decision provides further support for separation of insured principles. In St. Paul Fire & Marine Ins. Co. v. Schilli Transp. Servs., No. 11-2307 (Feb. 13, 2012), the court held that multiple named insureds on the same policy were not jointly and severally liable to pay the basket deductible. Rather, each insured was liable only for the deductible arising from claims specifically brought against it.

St. Paul issued insurance to Schilli Transportation, Atlantic Inland Carriers, Inc. and WVT of Texas, Inc., and several other companies involved in the freight and trucking business. The policy required St. Paul to defend any claim or suit for bodily injury or property damage made or brought against any insured, even if any of the allegations of such claim or suit were groundless or fraudulent. The limits of coverage under the policy were $1,000,000 per accident subject to a $100,000 deductible.

The payment of the deductible was addressed in the “Repayment of Expenses” provision. This provision, which was included in the policy as part of the “Basket Deductible Endorsement,” provided that although St. Paul would be responsible to pay all expenses to settle a claim or suit, the insured would be responsible for the amount of expenses within the deductible. Specifically, the policy provided that “[y]ou agree to repay us up to this deductible amount for all damages caused by any one accident, as soon as we notify you of the judgment or settlement.” “You” was defined as the “insured named here, which is a CORPORATION.” The policy then listed Schilli Transportation, along with eight more companies, including Atlantic and WVT.

Over the course of the policy period, six different claims were asserted under the policy, all of which St. Paul defended and settled. Of the six claims asserted, only two exceeded the $100,000 deductible. Three of the six claims arose from the liability of Schilli Transportation. One claim arose from the liability of Atlantic. Another arose from the liability of WVT. The sixth claim arose from the liability of both Schilli Transportation and Atlantic. After payment of the claims and related expenses, St. Paul sent Schilli Transportation invoices for the amounts, up to the $100,000 deductible, it advanced in defending and settling each case. St. Paul argued that as a named insured under the policy, Schilli Transportation was jointly and severally liable for reimbursement of the deductible for all six claims. According to St. Paul, a position with which the District Court agreed, the policy clearly defined “you” as all corporations specifically listed as named insureds. Therefore, “all of the listed corporations [were] liable under the repayment of expenses provision,” and could be held jointly and severally liable for payment of the deductible.

On appeal, the Seventh Circuit reversed. The court ruled that although it agreed that St. Paul has valid claims against one or more of the insureds for the deductible amounts St. Paul spent to settle and defend the claims in question, it did not agree that the insureds were joint and severally liable for the deductible. The court explained that the manner in which the named insureds are listed in the policy creates an ambiguity as to whether they are to be considered jointly or separately for purposes of defining “you.” One reasonable interpretation, the court found, was to interpret the definition of “you,” which was defined as “a Corporation” followed by the listing of the names of nine individual corporations, to mean each corporation will be treated individually. Another reasonable interpretation, advanced by St. Paul, was that “you” refers to all corporations listed. Therefore, an ambiguity existed and the language would be interpreted against St. Paul, as the drafter, and in favor of the insureds.

The court relied on the “Separation of Protected Persons” clause to find additional support for its holding. This clause, which provided that St. Paul would apply the insurance agreement “to each protected person named in the Introduction as if that protected person was the only named one there; and separately to each protected person,” created further ambiguity as to whether defendants were jointly and severally liable for the deductible payments. The court recognized that although separation of insured provisions are typically applied in the context of coverage, rather than in the payment of deductibles, there is nothing in the language that prohibits such an application. Therefore, at the very least, the provision creates further ambiguity as to whether all named insureds are jointly and severally liable for each other’s claims.

St. Paul Fire & Marine Ins. Co. v. Schilli Transp. Servs. provides further support for separation of insured principles, applying the rule beyond the context of coverage to the payment of deductibles.

The complete opinion can be accessed here.