Who’s at fault?

Frank Firstbuyer purchased a vacant waterfront lot, intending to build his home there. However, shortly after closing, he was advised that the southern edge of the property contained a number of invasive trees which would have to be removed. Building officials told him that before he could obtain a building permit, he would have to stabilize the land where the trees were located. Firstbuyer complied with these requirements but ultimately decided to purchase an existing home in a different area and put the lot up for sale.

The following year Stephen Secondbuyer purchased the property from Firstbuyer. The property was sold “as-is” with right of inspection. Secondbuyer visited the property several times but never hired any professionals to determine whether the property would be suitable for construction of a home. After closing, Secondbuyer was required to perform certain soil studies before he could pull his building permit. Those reports revealed that the middle of the property was full of muck. This resulted in an increase of almost $100,000 in construction costs. Secondbuyer decided not to proceed with construction. He too, opted to sell the property but then sued Firstbuyer for failing to disclose the defective condition of the land.

The Court ruled in Secondbuyer’s favor, determining Firstbuyer breached his legal duty to Secondbuyer when he did not advise of the existence of muck on the property. However, the appellate court disagreed, finding that no evidence had been presented which showed that Firstbuyer had any actual knowledge of the muck-muck which by the way was not located at the southern edge of the property where Firstbuyer had removed the trees and done some work.

While there is a legal theory that a seller must disclose the existence of any fact materially affecting the value of a property he or she is selling, suit under such a theory must show that the seller had actual knowledge of the defect, and that was not the case here.

Legal and Ethical Duties on a Construction Project

Natural and man-made disasters have a way of exposing all manner of shoddy work and poor design. Whether it is tornadoes in the midwest, frightening hurricanes in the southeast, tsunamis in the Pacific – all have revealed not only inadequate construction methods but worse, a failure in many instances to adhere to established codes of conduct.

Considering the Public Good

Builders and designers have ethical and professional guidelines to which they are expected to conform, not the least of which is the obligation to use their skills and knowledge in a reasonably careful and competent manner. They must also be cognizant of their responsibilities to the public, balancing the interests of clients and society alike. If at any time, the health, safety or welfare of one or the other could be in jeopardy, then architects, engineers, and contractors must take a step back, consider both their legal and ethical duties on a construction project, and rethink their planned approach.

Because of bad planning, use of substandard materials, faulty construction, and unenforced building codes, lives can be unnecessarily lost.

Legal and Ethical Duties Not the Same

To be clear, legal and ethical duties on a construction project are not the same. While satisfaction of the legal requirements associated with a particular project might appear to be sufficient, real life examples have illustrated this is not always enough. Thought to the overall impact of any design or construction decision must be part of every analysis. Cutting corners, fee-based conclusions, less than full research – none may be illegal but all could result in flawed determinations. Sure, pushing back is never easy, especially against the constant pressure of an owner seeking to move a project forward, but setting aside one’s ethical obligations for the sake of expediency is never a good idea. An ethical violation may not result in a lawsuit, or even subject one to disciplinary sanctions, but it could well lead to adverse and long-lasting consequences for the community one lives in. There are no black and white rules in most instances, but rather, and hopefully, a business climate which encourages and guides one to behave both legally and ethically.

Shop Drawing Review

Do you know that design professionals, including architects and engineers, can be held liable for issues that are not addressed during their review of shop drawings, especially when these develop into problems on a construction project? A construction lawyer will tell you that a professional has a duty to perform any requested service in accordance with the standard of care used by similar professionals in the same community working under like circumstances. This means the design professional must, at the very least, exercise reasonable care and skill.

Who Should Review Shop Drawings?

In the course of reviewing and approving shop drawings, a design professional should be cognizant of the contractual requirements specific to the job and should be sufficiently knowledgeable and skilled to recognize possible construction predicaments and design dilemmas.

It is therefore important that, in addition to basic qualifications, the individual professional to whom shop drawing review is assigned also be familiar with the governing contracts, related documents and design concepts for the particular work.
A design professional on a project would do well to insist that the general contractor’s schedule reflect sufficient time for all necessary shop drawing reviews.

Shop drawings are not short cuts to full and complete design. They should not be used as vehicles to suggest changes or substitutions to the project’s contractual requirements by any of the entities involved, be they the contractor, subcontractors, suppliers or design professionals. If it becomes necessary to make such changes, the contractor must initiate a specific request to the design professional to document a change order.

Shop Drawing Language

As for the design professional’s communication of the results of its shop drawing review, it has become clear that attempting to skirt responsibility by not using certain words may not really work. Unless specifically rejected, the shop drawing will be deemed approved. It therefore merits consideration that any rubber stamp used to convey the design professional’s opinion at least include these options: REVIEWED, APPROVED, REJECTED, REVISE and RESUBMIT. It is not recommended that the term Conditional Approval be used as it leaves open for interpretation too many aspects beyond the control of the reviewer. However, adding some limiting language to the stamp is wise, such as:

Review is limited to general conformance with Contract Documents and Design Concepts and does not release Contractor of its responsibility to determine and control construction means, methods, techniques, sequences and procedures as well as quantities of materials and dimensions of work.

Shop Drawing Risks

While the scheduling, review and coordination of shop drawings may appear to be mundane tasks, design professionals should be aware of liability risks that exist in this context. Indeed, in a recent construction dispute it was held that a chief design engineer breached the appropriate standard of care by approving a shop drawing calling for a certain type of wire without first determining whether the proposed materials would conform to project specifications while another case found that design consultants were guilty of delaying a project when they negligently failed to review, revise and coordinate certain shop drawings.

Shop drawing review is a serious matter – don’t take it lightly.

Determining the prevailing party

Sometimes the legal fees and costs incurred in a case exceed the actual amounts being litigated. That is why the decision of who is the prevailing party in a case can become so very important.

Florida’s Supreme Court addressed this issue in an interesting construction case where homeowners building a new house deducted the cost of repairs occasioned by a contractor’s admitted mistake.Apparently, a worker had inadvertently stapled some existing electrical wires when installing insulation in the homeowner’s attic. The trial court entered judgment awarding the insulation contractor $1,525, the net amount of its final bill after deducting the repair cost for its mistake. It also determined that the homeowners were the prevailing party and awarded them attorney’s fees of $55,982 and costs of $4,016.67. The District Court of Appeal reversed and certified this to the Supreme Court as a question of great public importance. The state’s highest court found that the prevailing party in such a case must be the litigant who prevails on the significant issues of a case.

While the fact that one of the parties obtains a net judgment is important, it is not, in and of itself, the determining factor as to who is awarded fees. The court must look at all the equities, and doing so in this case meant that the homeowner was the prevailing party despite the insulation contractor’s net judgment.

Oops – was that 100 or 1,000 feet? Who made the mistake?

During the construction process, it is inevitable that mistakes will be made– you just hope yours isn’t so big that it bankrupts you.

Unilateral or Mutual Mistakes

Mistakes are categorized as either unilateral or mutual. That means just what it says. A unilateral mistake is one made by only one party while a mutual mistake is one that is shared by both parties. So if only you misunderstood the construction plans and specifications and thought you needed to order 1,000 feet of conduit instead of 100, this would be a unilateral mistake – your problem, without any immediate relief unless you could show that someone intentionally deceived you in some way. These mistakes happen more often than you’d think, especially in a construction setting where quantities, prices and dates are so critical. The likely result, when one makes such a mistake, is usually no remedy at all.

On the other hand, if both parties to an agreement are mistaken because a document fails to correctly reflect what they both intended, then a court will likely reform or recast the document to correct the error. An example may help illustrate this. Let’s say that a lumber yard advertises 4×8 sheets of oriented strand board for sale at $1.00 each. It actually meant to say $10.00 each. You go in and buy ten sheets, expecting to pay $10.00 but are charged $100.00. Who would be right? A case with similar facts held that you would be. The store made an offer which you accepted. Though this may not have been the offer it actually intended to convey and it mistakenly left out a digit, the store would be out of luck. The law is clear in most every jurisdiction that in such circumstances what one may have intended does not really matter and is generally not enough to undo a deal.

However, if it can be shown that the non-mistaken party actually knew that the other party just didn’t understand the agreement, a court may step in. It may cancel the agreement (this is called contract recession), meaning the parties are no longer bound by that agreement and are back in the same position before they entered into the agreement. Or, if both parties misunderstood the agreement, the court may modify the agreement (known as contract reformation) to correctly reflect the parties’ understanding. But don’t count on either of these remedies to always save the day. Courts are reluctant to alter agreements, even when the result may be disastrous to the one making the mistake.

What ‘Construction Services’ Require Professional Liability: Construction Litigation

Design/Build Firms

Firms which decide to participate in the “Design/Build” Construction Delivery System agree to both construct and design the project. What distinguishes this form of project delivery system from the traditional method is the “single point of responsibility” which mandates the Design/Builder to be responsible for the design of the project as well. Again…please note: “The Design/Builder assumes the responsibility of the design services…in addition to the traditional construction means, methods, process, procedures, sequences and safety”

Construction Managers/Consultants

Construction Managers typically work with the “Owner” of a project and design professionals from the beginning of design until project completion. Some of the possible services that can be provided by Construction Managers are:

Project Management
Designer Selection
Designer Orientation
Designer Contract Preparation
Design Phase Milestone Schedule
Time Management
Cost Analysis/Management Control/Reports
Cash Flow Analysis
Construction Market Survey
Project and Construction Budget
Value Engineering Review/Analysis/Implementation
Establishment of Management Information Systems
Design Phase Procedures
Project Management including Progress Meeting & Conferences
Review of Design Documents/Recommendations
Approvals by Regulatory issues
General Conditions Review/Analysis/Implementation
Project Funding
Revisions of Master Scheduling
Monitoring the Design Phase Milestone Schedules
Pre-Bid Construction Schedules
Pre-qualifying Bidders/Advertisements & Notices
Bid Opening Review Analysis
Review and Implementation of Construction Documents
Permits/Insurance/Labor Affidavits
Quality & Warranty Review/Reports/Control/Analysis & Approval
Change Order Review/Analysis/Reports/Control & Approval
Progress Payments Review/Analysis/Reports & Approval
Contractors Safety Program Review/Analysis/Approval & Implementation
Services related to Investigation/Evaluation/Appraisals of existing Conditions/Facilities/etc.
Determination of accuracy of existing drawings or other information.
Claims & Litigation Support

Important Aspects to Remember About Construction Litigation

Don’t forget…when you review the possible services that can be provided by this delivery system…it is important to remember the vast majority of Construction Managers will be covered only by the usual Commercial General and Umbrella/Excess policies. The Commercial General and Umbrella/Excess policies respond to allegations of negligence…which cause Bodily Injury and Property Damage type claims as narrowly defined in these coverages. But…the vast majority of claims that may arise… most likely will not cause any type of Bodily Injury or Property Damage type claims to trigger these coverages… hence no coverage. As a result… Contractor/ Construction Managers Professional Liability coverage is required to respond to the vast majority of these claims that may arise from professional services. Also, the precise duties of Construction Managers must always be carefully defined in the contract with the Owner and coordinated with existing coverage.

Any Contractors Who Contracts Directly With Any Design Professional…Environmental Consultant or Related Professional…

Contractors are increasingly dealing directly with design professionals when providing construction services. If a contractor works directly with a design professional…the contractor can be vicariously liable for the performance of those design services. Obviously, the meaning for a contractor can vary, but whenever this relationship exists…the contractor may be vicariously liable for professional services rendered on the project by the chosen professional.

Not My Problem: Release of Liability Sticks

We’ve all seen them – those clauses on proposals, work orders and construction contracts stating that a repairman won’t be responsible or liable for any damage caused by his repairs. The question is, are they enforceable? A recent case has determined they can be, if properly written.

When homeowners discovered a leak under the floor of their home, they contracted a company to find it and fix it. Before repairs could begin, the homeowners had to sign a work authorization which included the following in bold print:

Technicians shall not be responsible for any damage whatsoever which may result from any locating procedures. Property owner agrees to hold harmless repair company absolutely in this regard.
To find and repair the leak, the technician drilled a hole into a floor tile. He then located the problem and fixed it. But he left the homeowners with a broken floor tile. When the owners couldn’t locate a matching tile, they had to have all the tiles replaced in the area. They filed a claim with the insurance company which paid them in full and then sought to recover what it paid the homeowners from the repair company. The court, however, determined that the work order signed by the owners also applied to the insurance company and the provision within the work order showed clear intent by the contractor to be relieved from any damage it caused.

No Good Deed Goes Unpunished

When an engineer agreed to help out a fellow professional whose license to practice had been revoked, he didn’t bargain on becoming the subject of disciplinary proceedings.

He had assumed the role of engineer of record on two ongoing projects, and reviewed the work performed to date by the now unlicensed engineer. He did so as a favor and without any compensation.

He directed and oversaw the work, supervising the unlicensed engineer’s employees and completing the unfinished design work. He then affixed his signature and seal to the plans.

At the disciplinary hearing, the engineer testified before a hearing officer and was quickly found not guilty of any violations. The plans he had sealed were prepared under his supervision and he had not associated any unlicensed persons in the practice of engineering. However, the Florida Engineers Management Corporation, the agency charged with making determinations of this sort, rejected the judge’s recommendation and went ahead with the imposition of fines and penalties against the assisting engineer. The District Court of Appeal disagreed, holding that the hearing officer’s findings based on competent, substantial evidence may not be rejected by an administrative agency. Good news for the good deed engineer.

Hedging Your Bet

We’ve all seen those plants and tree limbs which extend beyond someone’s property. What if that foliage obstructs traffic signs or blocks a driver’s view of an intersection? Is the property owner then liable for any resulting accident? Yes, according to Florida law. Property owners cannot allow their trees or hedges to grow into the public right-of-way. The law expects that owners can and should monitor their properties to determine if overgrown foliage poses a risk or danger to third parties. In fact, Florida’s Supreme Court expanded its explanation of landowner liability in this regard, dictating that owners will be held accountable if they permit conditions on their land to extend into public roadways and create a foreseeable hazard to traffic.

As for overhanging branches between two adjacent properties, the law is equally clear. Neighbors are allowed to prune those portions growing into their own property. Crossing over one’s property line to trim foliage or cut back an offending plant, however, is not advised. Not only could one be found guilty of criminal trespass, but too severe a pruning job could bring a lawsuit for damages.

Who’s at Fault: Architect or Engineer

When a building unexpectedly collapses, as happened in Surfside, everyone begins to think who may be to blame. And high on everyone’s list is likely to be the architect and the engineer.
Of course, it is generally assumed that the duties associated with the professions of architecture and engineering are as distinct as are the two disciplines. An architect focuses on the design of a building, making certain it is aesthetically pleasing, while an engineer assures that a building functions properly. However, Florida construction law shows that such a strict division of responsibilities may be incorrect.

For example, when a hurricane struck a job site causing partly installed tilt-up construction panels to collapse, a suit was brought for professional malpractice by the owner against his architect. The owner believed the architect should have known that the temporary bracing of the walls was inadequate and would not hold up against hurricane force winds. Moreover, the owner alleged, the architect should have realized that such a failure could cause the complete demolition of the walls resulting in the project being delayed as the walls were reconstructed. The architect countered that this aspect of the project was not his responsibility – and this was more an engineering than an architectural issue. To support his contention, the architect showed that there was no corresponding duty enumerated in his contract with the owner, and he argued, no contracting party ever has any obligation greater than that promised in its contract.

But in reality, the responsibilities of architects and engineers often overlap, especially on larger scope projects. Had the architect in our example looked a bit more closely at his construction contract documents, he would have found what the court discovered – a supplementary document marked as an exhibit to the architect’s underlying agreement with the owner, specifically stating that the architect’s scope of services, as well as his compensation, encompassed “structural engineering, including site visits during construction”. A surprise for the architect on this case but in fact not especially unusual on projects of this sort. The law in several jurisdictions actually anticipates that there will be times when incidental to one’s practice, a professional may perform services outside his or her specific discipline on a project, such that, for example, an engineer may perform architectural services and an architect engineering related tasks.

Simply thinking one can defend a claim on the grounds that he or she is by discipline not required to perform any specific duties related to another, different profession, could be a big mistake. Such responsibilities can easily become blurred in today’s complicated projects, and they generally do when something goes terribly wrong.

There will be changes – after The Champlain towers collapse

“Quality is remembered long after price is forgotten” So said Aldo Gucci, the chairman of the famous Gucci fashion house from 1953 to 1986.

On Thursday, June 24, 2021, at approximately 1:25 a.m. EDT, Champlain Towers South, a 12-story beachfront condominium in Surfside, Florida, partially collapsed. Ninety-eight people died.

While the full extent of the causes for the disaster may take many months to determine, a report in the Miami Herald based on interviews with engineers and construction experts has pinned one of the causes on multiple, extensive structural flaws that existed in the building for 40 years.

The report concludes that the project was “Flawed from day one.” Among the problems, according to the report, were that “the plans specified structural columns that were too narrow to accommodate enough rebar, meaning that contractors had to choose between cramming extra steel into a too-small column — which can create air pockets that accelerate corrosion — or inadequately attaching floor slabs to their supports.”

“While original design flaws alone were unlikely to have initiated the collapse that happened 40 years after construction, engineers consulted by the Herald said the deficiencies, in combination with concrete deterioration, could have been the difference between a single floor caving in and the kind of progressive collapse that killed 98 people.”

As everyone in the construction business knows, building codes are much more stringent now than 40 years ago. As was true in the aftermath of Hurricane Andrew, this collapse will likely trigger a wave of reform in the way buildings from the same era are inspected and repaired. After the collapse of the Champlain Towers South, even the politicians were asking: “Can we build these buildings better/ safer”? The clear answer to that question is “Yes.”

A recent article in the Miami Herald (9/12/2021) concluded that better ways to build are already available. For instance, rustproof polymer reinforcing rods and ultra-high-performance concrete that is largely impervious to saltwater. These products are already in use on some types of projects; however, according to Dr. Morteza Khatib, a structural engineer at the University of Miami, the primary reason they are not more widely used is cost.

“Polymer bars, for instance, might increase upfront material costs by around 20 percent. On the flip side, Khatib said, it could save condo buyers millions over a building’s lifetime by dramatically reducing repair costs.”

According to Atorod Azizinamini , a professor of civil engineering and director of the Moss School of Construction at Florida International University, another alternative that is both affordable and can greatly reduce the corrosion problem is ultra-high performance concrete (UHPC). The cement is mixed with barely any water and eliminates the ingress of salt water.

Architects, engineers, and contractors, all have to minimize the shortcuts on design and construction and instead maximize the safety quotient in all they do.

Dealing with Construction Defects at Champlain South Tower Condominium

As the nightmare of the Surfside building collapse sinks in, folks are beginning to explore who may be responsible for repairing and replacing the extensive damage.

The answer, as with many legal questions, is, “it depends.” Historically, the condominium purchaser would look to the common law warranty of fitness and merchantability for relief, specifically alleging as grounds that the unit does not meet building and zoning codes or that the construction was not completed in a workmanlike fashion, that the plans and specifications were not fit for their intended use or simply that the premises are unfit and uninhabitable. However, the statutory implied warranty of fitness and merchantability, which runs from the developer, contractor and subcontractors to the purchaser of the unit, remains one of the most powerful legal tools.

Implied Warranties

In Florida, the warranty of fitness as to the work performed and supplied by the contractor, subcontractors and suppliers only runs for a period of three years from the completion of construction. The warranty of fitness and merchantability for the unit’s intended purposes running from the developer on the other hand extends for three years after completion of each condominium building or for one year after control of the condominium association has been transferred to unit owners other than the developer, whichever occurs last. This period cannot exceed five years in any event, and clearly the age of the Champlain South Tower will likely preclude these sort of warranties.

Express Warranties

It should be noted that many developers may attempt to obtain an advantage by providing specific warranties, thus creating a selling point and greater incentive for their prospects. Under such circumstances, the developer may extend or broaden the scope of its common law and statutory warranties. These express warranties are binding on the developer and create a clear route for unit purchasers seeking to capitalize on the developer’s greater exposure to liability when construction elements go awry.

Negligence

In addition to the common law and statutory warranties, there are other alternative causes of action available to condominium unit purchasers who find themselves struggling with property defects. One is negligence. Under this theory, even remote purchasers have standing to sue the original contractor for any failure to meet the standard of reasonable care to safeguard those who may foreseeably be placed in peril. Although a greater degree of proof is required to prevail in a negligence action in contrast to a breach of warranty claim, negligence claims have distinct advantages for the unit purchaser. In such actions, the statute of limitations is usually longer and more flexible, allowing more time for discovery of any defect. Additionally, an action in negligence may attach to design professionals such as architects and engineers, against whom a warranty action would not customarily stand, given their lack of privity of contract with the purchaser. But the design professional will be held to a duty of reasonable care as to design.

Interestingly, while an action in negligence usually cannot be maintained against a contractor after the contractor has completed its work, turned the unit over to the owner, and the unit has been accepted by the owner, courts have recognized an exception where the defect is latent and cannot be discovered by a reasonably careful inspection. The statute of limitations for such latent defects does not begin to run until the defect is discovered. This has the practical effect of extending the life of a defect clause (where the warranty claim may have lapsed) by allowing a negligence action to pick up where warranty is no longer available. However, actions for latent defects generally must be commenced within ten years after the date of actual possession by the owner, or the potential claim expires. A word of caution, however – the statute of limitations for such negligence involving latent defects begins to run when the defect is discovered or should have been discovered with reasonable diligence. This can shorten the life of a negligence claim considerably.

Fraudulent or Negligent Misrepresentation

Additionally, the developer can be held liable for construction defects based on breach of contract or misrepresentation. When the contractor fails to deliver something promised within the contract, it is in breach. When it misrepresents what it can actually deliver, it is guilty of falsification. Misrepresentation is broader than breach of contract in that it can be either intentional or negligent in character and can take the form of negligent misrepresentation, active concealment or an intentional omission of material facts.

When no one is prepared to immediately accept fault for a given construction defect, the unit owner inevitably turns to litigation. The unit owner or the owners collectively may not limit their action to the developer, choosing rather to include all involved contractors, subcontractors and suppliers. The rationale in suing all potentially at fault parties is to circumvent the risk that the statute of limitations may prevent future suits against any one of these parties during the pendency of the suit against the developer. These usual suspects are often joined by various other co-defendants as the circumstances may dictate. Successor developers, the corporate parent of a developer corporation, officers of a developer corporation, design professionals, inspectors, and the individual sellers of pre-owned units may unhappily find themselves in these construction defect lawsuits.

Defenses

Once claims are made, they are predictably countered by allegations that the condominium association or unit owner failed to perform routine maintenance or that the contractor actually adhered to applicable building codes and standards in effect at the time of construction. Contractors and developers will argue that the building is in substantial compliance with all contractual requirements and that any deviation from plans and specifications are de minimis and do not affect the value of the unit. Claimants can expect to be accused of failing to mitigate their damages, or, in a negligence action, that they are comparatively negligent in failing to inspect and/or maintain the premises.

Determining fault is neither clear cut nor easy especially in this situation, so all parties involved in the development, construction, sale and purchase of each condominium unit at Champlain South Tower should anticipate the worst.

Can you be held liable for a workplace injury?

Be careful – owners and contractors are now being held criminally liable for their carelessness and disregard of safety protocols.

Safety may be job one on any number of job sites, but state and federal prosecutors are now charging developers, general contractors and subcontractors with actual crimes. No longer are safety violators just facing monetary fines, they are looking at actual jail time.

A New York case involving a wall collapse at an excavation site which killed one worker and injured two others has an owner, his companies and the permit holder in the crosshairs. It didn’t help that the worker who died was an undocumented immigrant and a contractor was hired to just pull the permit. Worse, the owner continued to ignore warnings from workers at the project complaining that the area was not safe. The owner has been indicted for manslaughter.

The targets are not just owners. Two project managers were recently indicted in New York because of the reckless use of a crane which toppled over injuring several workers. The supervisors had not pulled the right permits and were not properly trained on the use of the crane. When it capsized, the crane was carrying a load twice its noted limit.

Another mishap in California illustrated a lack of proper training on the use of powered nailing tools. Apparently, a worker holding a switched on nail gun, accidentally discharged it, shooting a nail into his arm and seriously injured himself. The company was criminally charged for ignoring safety codes and overlooking obligations to properly protect its workers.

In Washington state, prosecutors charged an owner with negligent homicide after a worker died in a trench collapse. As so often is the case in these types of accidents, the excavation site had not been properly shored. This was seen as a willful and intentional disregard of established safety regulations and amounted to criminal negligence.

And in Miami, while a number of companies face significant fines as a result of the tragic Florida International University bridge collapse, the incident remains under review as to the possible imposition of criminal charges. Federal authorities have already cited folks for serious worker safety violations, including the lack of proper safety lines but more importantly, the lack of proper oversight which allowed workers on the bridge after it developed significant cracks.

So companies would be smart to have regular compliance audits, keep accurate records and promptly deal with OSHA citations. As well, having in place ample insurance coverage which includes protection for officers and directors is a must. Of course, all bets are off if those seeking insurance coverage have actual prior knowledge of a dangerous condition and do nothing to address it. Today, construction accidents not only trigger monetary fines but the potential for real jail time.