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DTCI: The anatomy of jobsite accident claims

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By William E. Kelley, Jr., and Andrew C. Briscoe

In the unfortunate event of a construction jobsite accident that results in bodily injury or, in the worst-case scenario, a fatality, the resulting claims and litigation can be extremely complex. Construction jobsite accident claims often play out as follows.

Employee of a subcontractor is injured on the jobsite while working on a construction project. Employee has statutory remedies against his employer (i.e., subcontractor) through Indiana’s Worker’s Compensation statutes, but subcontractor is otherwise immune from further litigation under general negligence theories of law (see, e.g., Ind. Code § 22-3-2-6). Thus, employee sues general contractor, owner, construction manager, architect, engineer, and a variety of other entities that had varying levels of involvement with the construction project.

After the initial lawsuit is filed by employee, there is often a second wave of claims among the project participants in the form of additional insured, indemnity, and contribution claims relating to the division of contractual responsibilities for jobsite safety. For example, owner may seek indemnity and defense from general contractor, who in turn seeks indemnity and defense from its various subcontractors. Even though subcontractor may be immune from direct suit by employee, subcontractor may nonetheless find itself brought into the litigation by virtue of this second wave of claims.

In many jobsite accident claims, there can even be a third wave of claims that arises in relation to the scope of insurance coverage obligations for the parties’ multiple insurers. For example, claims against design professionals relating to jobsite safety obligations may result in disputes between the commercial general liability and professional liability insurers in relation to the nature of the design or professional activities involved in the claim and application of the “professional services” exclusion typically found in CGL policies. Additional claims can also arise if it is discovered that project participants failed to procure the required insurance or endorsements for the project.

The reality is that what begins as a bodily injury claim on a construction jobsite can quickly become a complex web of contractual claims, cross-claims, counterclaims, third-party claims, and declaratory judgment actions — all requiring multiple attorneys, insurers, and parties to wade through the contractual, indemnity, and insurance provisions. How is it that what begins as a general negligence claim quickly evolves into a complex contractual construction dispute? A review of standard form contract provisions and Indiana law interpreting those provisions provides some insight.

Contractual allocation of jobsite safety responsibility

Oftentimes, the general conditions in the construction contract documents place primary responsibility for jobsite safety upon the general contractor. The general contractor, in turn, allocates portions of this responsibility downstream to its subcontractors. For example, under the American Institute of Architects A201 (2007) General Conditions, section 10.1 provides that “the Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract.”

In order to ensure that subcontractors are subject to the same safety obligations as the general contractor, section 5.3 of the AIA A201 General Conditions requires that each subcontractor be contractually bound by the same safety provisions and other contractual obligations owed by the contractor to the owner. Thus, the general contractor must ensure that downstream subcontract agreements are coordinated with the prime agreement, such that the specific jobsite safety obligations are specifically incorporated into those subcontract agreements. Consequently, affirmative responsibilities for jobsite safety are often imposed upon the individual subcontractors, placing responsibility upon the subcontractors for the day-to-day safety measures and programs implemented for the benefit of their own employees.

On the design side of the project, many contracts with architects and engineers contain limiting language that excludes the architect and its consultants (including engineers) from responsibility for creating, implementing, or overseeing project-wide safety programs. For example, section 3.6.1.2 of the AIA B101 (2007) Owner-Architect Agreement provides that the architect “shall not have control over, charge of, or responsibility for … safety precautions and programs in connection with the Work, nor shall Architect be responsible for the Contractor’s failure to perform the Work in accordance with the requirements of the Contract Documents.”

Since the general conditions often place primary jobsite safety responsibility upon the general contractor and further limit the architect’s responsibility for the same, then it is of little surprise that section 3.18.1 of the AIA A201 (2007) General Conditions imposes an indemnity obligation upon the general contractor, requiring it to “indemnify and hold harmless the Owner, Architect, Architect’s consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease, or death … .”

Thus, for those design-bid-build projects using a general contractor to perform the construction work, many contractual provisions impose the obligation of implementing jobsite safety programs upon the general contractor, and they further require the general contractor to ensure that its subcontractors are bound by those same obligations. In turn, the general contractor becomes responsible for indemnifying the owner, architect, and others on the project for any acts or omissions by the general contractor or its subcontractors, where bodily injuries occur as a result of negligence. As a result, the general contractor must protect itself through risk allocation mechanisms in its subcontract agreements, including indemnity, additional insured provisions, and other similar contractual provisions that require the subcontractors to provide indemnity and/or insurance to the general contractor for these risks.

Indiana law interpreting contractual jobsite safety obligations

When facing construction jobsite accident claims, Indiana courts have often worked to balance the concepts of contractual allocation of jobsite safety responsibility, on the one hand, with the imposition of a duty in tort to third parties, on the other hand. For example, in Stumpf v. Hagerman Construction Corp., 863 N.E.2d 871 (Ind. Ct. App. 2007), the general contractor hired a subcontractor to perform mechanical work for the project; in turn, the subcontractor hired a sub-subcontractor to install pipe insulation. The plaintiff was an employee of sub-subcontractor, and he was injured when he fell while installing insulation. The plaintiff alleged that both the general contractor and the subcontractor had incurred a contractual duty relating to safety for the project and had failed to properly supervise the work of sub-subcontractor and ensure that it adhered to the appropriate regulations relating to fall protection.

The court first observed that under Indiana law, “it is well established that an employer does not have a duty to supervise the work of an independent contractor to assure a safe workplace and consequently is not liable for the negligence of the independent contractor.” Id. at 876. “The rationale behind this rule is that ‘a general contractor typically exercises little, if any, control over the means or manner of the work of its subcontractors, and requires only that the completed work meet the specifications of the owner in its contract with the general contractor.’” Id. (citations omitted).

However, the court noted that there are five exceptions to this general rule: (1) where the contract requires the performance of intrinsically dangerous work; (2) where one party is by law or contract charged with performing the specific duty; (3) where the performance of the contracted act will create a nuisance; (4) where the act to be performed will probably cause injury to others unless due precaution is taken; and (5) where the act to be performed is illegal. With regard to the second exception, the court noted that “if a contract affirmatively evinces intent to assume a duty of care, actionable negligence may be predicated upon the contractual duty.” Id. at 876.

In Stumpf, the plaintiff relied upon the second exception and alleged that the general contractor and the subcontractor each incurred a contractual duty to ensure the safety of all persons on the project. Ultimately, the court agreed with the plaintiff and held that the general contractor had incurred a duty for safety so as to support the plaintiff’s negligence action. In so holding, the court relied upon the fact that the general contractor contractually agreed to “take all necessary precautions for the safety of employees on the work, and shall comply with all applicable provisions of Federal, State, and Municipal safety laws and building codes to prevent accidents or injury to persons on, about or adjacent to the premises where the work is being performed ... . Contractor shall designate a responsible member of its organization on the work, whose duty shall be the prevention of accidents.” Id. at 877. Taken as a whole, the court held that “this contractual language evinces intent by the parties to charge [the general contractor] with a duty of care for the safety of all the employees on the project, including the employees of its subcontractors.” Id. at 878.

As to the subcontractor, the court held that it “subsequently assumed the same duty of care when it agreed to be mutually bound by the provisions of the prime contract.” Id. Thus, under general principles of negligence law, the plaintiff could proceed with his negligence claim against both the general contractor and the subcontractor based upon the jobsite safety obligations contained in those parties’ contracts.

Construction managers and multi-prime projects

The concepts of contractual responsibility for jobsite safety become even more complex and fact-specific when construction projects include construction managers, multiple-prime contractors, and other nontraditional models for project delivery, including design-build. For example, in Hunt Construction Group, Inc. v. Garrett, 938 N.E.2d 794 (Ind. Ct. App. 2010), reh’g denied, the owner hired a construction manager, and the owner separately entered into agreements with individual contractors to perform the construction work. The plaintiff, who was injured while performing her work, was an employee of one of those contractors. The court’s analysis focused on whether the construction manager had incurred an obligation for jobsite safety sufficient to give rise to a duty in tort to the plaintiff.

The construction manager argued that any safety obligations or duties ran only to the owner and not to the employees of various contractors working on the project. The construction manager’s agreement with the owner contained language that expressly attempted to limit its liability for jobsite injuries. In particular, the agreement provided that the construction manager’s duties were undertaken “[w]ithout assuming the safety obligations and responsibilities of the individual Contractors” and that the construction manager “shall not have control over or charge of or be responsible for . . . safety precautions and programs in connection with the Work of each of the Contractors, since these are the Contractor’s responsibilities.”

Ultimately, the court held that the construction manager had incurred a contractual duty for safety because, under its contracts with the owner, the construction manager was responsible for approving the contractors’ safety programs, monitoring compliance with safety regulations, performing inspections, and addressing safety violations. Id. at 804. Furthermore, the construction manager had the ability to remove any employee or piece of equipment deemed unsafe. Id.

The court reached this conclusion despite language in construction manager’s contract with the owner that attempted to limit its obligations for safety to the owner. In rejecting the construction manager’s reliance on the terms allocating jobsite safety responsibilities to the contractors, the court noted that “our focus must be on the intent of the agreements regarding the construction manager’s responsibilities, not the contractor and subcontractor responsibilities. The fact that the contractors also accepted a duty regarding safety does not in any way alter [the construction manager’s] duties or liabilities under the contracts.” Id. at 800.

Conclusion

The complex web of contracts among construction project participants typically define and allocate the risks and liabilities among the project participants, but these contractual and insurance claims sometimes take center stage in what begins as a construction jobsite accident claim. In fact, due in part to the costs and time involved with these multiple layers of claims that can result from one bodily injury lawsuit, some large-project participants are moving to alternate insurance and risk allocation models, including controlled insurance programs, either in the form of an owner-controlled insurance program or contractor-controlled insurance program, where one insurer provides coverage to an entire group of enrolled participants. This model potentially avoids the infighting by project participants that can occur in the second and third waves of these types of claims, as one insurer provides the defense and indemnity to all covered participants.

In any event, the Stumpf and Garrett cases underscore the need for parties, attorneys, and insurers to identify and understand these lines of contractual responsibilities and obligations. Further, given the approach that Indiana courts have taken to impose duties in tort on jobsite accident claims, parties must use extra care at the beginning of these projects to ensure that proper risk allocation mechanisms are incorporated into the contracts.•

Will Kelley and Andrew Briscoe are attorneys with Drewry Simmons Vornehm, LLP. Kelley is the current chair of the Defense Trial Counsel of Indiana Construction Law Section. The opinions expressed in this article are those of the authors.

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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