On July 17, 2019, the Supreme Court of Ohio announced a major victory for the Ohio construction industry in the ongoing battle over whether Ohio’s construction statute of repose, R.C. 2305.131, bars claims for breach of contract as well as tort claims. In New Riegel Local School District v. Buehrer Group Architecture & Engineering, Inc., et al., the Ohio Supreme Court ruled the construction statute of repose does apply to breach-of-contract claims as well as tort claims.
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Construction Law
HLP Construction Team Secures Mandatory Injunction Against City of Lorain in Bid Dispute
Posted in Construction Law
Hahn Loeser’s Construction Team, led by Rob Remington, Jeff Brauer and Christina Hassel, obtained a resounding victory on behalf of its client, Mark Schaffer Excavating (MSE) in a bid dispute with the City of Lorain. Sherry Rollo, Sarah Lewis and Nevenka Whitworth also assisted with the case.
The City of Lorain engaged contractors to bid on a massive ecological restoration project involving the removal or burial of slag that sits between steel mills and the Black River in Lorain. MSE entered into a bid dispute with the City, arguing that it abused its discretion and arbitrarily rejected MSE’s low bid in favor of one of its competitors.
Ohio Court of Appeals Confirms Applicability of Statute of Repose to Contract Claims and Sureties
By Andrew J. Natale & Matthew K. Grashoff on
Hahn Loeser’s Construction Team is a proud leader in a major victory for Ohio contractors and their sureties. The Fifth District Court of Appeals of Ohio issued a recent decision confirming that Ohio’s construction statute of repose, R.C. 2305.131, applies to breach of contract claims. It also confirmed that sureties are entitled to rely on the statute of repose as a defense to claims under the bond.
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Hahn Loeser Construction Team Recognized in the 2019 Edition of Chambers USA®; Two Attorneys Identified as Industry Leaders
Posted in Construction Law
Chambers USA: America’s Leading Lawyers for Business, the nation’s most widely used legal services rankings guide, has ranked the highly touted Hahn Loeser Construction Law Team in its 2019 edition. This ranking is a recognition of the quality of the team’s attorneys and the team’s capabilities and effectiveness. Construction clients describe the team as “strong, courteous and respectful.” A client also added “They have a resource expert for nearly every situation we encounter.”
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HBA Supports City of Euclid Development Efforts
By Aaron S. Evenchik on
On March 27, 2019, Home Builders Association of Greater Cleveland President Dean Tompkins and HBA members Josh Edgell and Aaron Evenchik testified in front of Euclid City Council regarding potential residential home construction in the City. Euclid Councilperson Kristian Jarosz asked the HBA to assist the City in evaluating a 2003 law that required all new residential construction be a minimum of 2,000 square feet. The City is concerned the law is preventing new development, especially as much of the existing housing stock is less than 2,000 square feet. HBA members agreed the 2,000 square foot minimum is an impediment to new construction in Euclid.
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OSHRC’s Recent Ruling Provides Important Guidance on Limiting Controlling Employer Liability on Multi-Employer Worksites
By Michael B. Pascoe on
On Feb. 1, 2019, the Occupational Safety and Health Review Commission (OSHRC) reversed an OSHA citation issued to Suncor Energy (U.S.A.) Inc., as the controlling employer, for a fall protection violation. In this ruling, the OSHRC found that as a controlling employer, Suncor was not liable for two main reasons. First, it had a robust safety program in place that not only met, but exceeded OSHA’s minimum standards. Second, it had a rigid enforcement program that removed employees from the worksite for a single violation of its fall protection safety procedures. This decision emphasizes that a controlling employer’s safety role is secondary. The OSHRC then concluded that, given the massive scope of the project, Suncor’s robust safety program, and its zealous enforcement efforts, there was insufficient evidence to support a citation.
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OSHRC’s recent ruling provides important guidance for employers on heat exposure and the general duty clause
By Michael B. Pascoe on
On Feb. 28 the Occupational Safety and Health Review Commission (OSHRC) reversed a citation issued to A.H. Sturgill Roofing, Inc. for the heat-related death of an employee, finding that all of the elements of proof of the violation had not been met by the Secretary of Labor. Sturgill’s citation was for a general duty clause violation for exposing its employee “to the hazard of excessive heat from working on a commercial roof in the direct sun.”[i] In response to this ruling, the way employers defend against heat-related OSHA citations for violations of the general duty clause may change.
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It’s a Bird – It’s a Plane – No: It’s an OSHA Drone Flying Over Your Worksite
By Douglas J. Suter on
Posted in Construction Law, OSHA
Hahn Loeser is involved in a construction fatality where the Cleveland OSHA office’s compliance officer wanted to use a drone to fly over the site to photograph and videotape the site and the equipment involved in the fatality. OSHA agreed to share the drone footage with the employers involved in the OSHA investigation. This request came as part of OSHA’s new inspection procedure.
On May 11, 2018, OSHA’s Director of Enforcement Programs issued a memorandum to all of the OSHA Regional Administrators addressing the use of Unmanned Aircraft Systems (DRONES) as a method for OSHA to collect evidence during inspections.
Currently, the OSHA compliance memorandum requires OSHA to obtain express consent from the employer prior to using any drone on an OSHA inspection. However, we predict OSHA will seek an expanded use of drones for inspections and compliance in the future.
The Contracting Community Has a Say in OFCC Contracts
Posted in Construction Contracts, Construction Law
Many of us have heard the old saying that “decisions are made by those who show up.” The Ohio Facilities and Construction Commission (“OFCC”) is currently giving design and construction professionals involved in the construction of public schools the opportunity to show up, or more accurately speak up, to provide comments on contract general conditions and specifications of OFCC, including those in the Ohio School Design Manual (“OSDM”), as well as on the materials and methods of design used in the OSDM. This comment period offers industry professionals an important chance to provide input on the construction documents that control school construction projects throughout Ohio. It is crucial that design and construction professionals take this opportunity to give its opinion on current issues, as well as potential issues that may impact the industry in the coming years. Interested parties have until February 15, 2019 to submit comments on materials and methods of design used in the OSDM, and until March 1, 2019 to provide comments on OFCC’s contract documents.
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Ohio Court of Claims Decision Puts Public Works Bond Sureties Directly Behind the Eight Ball
By Andrew J. Natale & Gregory A. Thompson on
Strict Application of Claims Waiver Provisions Bars Surety Payment Claims
In Berkley Ins. Co. v. Kent State Univ., Ohio Ct. of Cl. No. 2018-00579JD (Jan. 14, 2019), the Ohio Court of Claims expanded its prior rulings strictly enforcing contract dispute resolution provisions in the public construction contract arena. The Court ruled, despite the circumstances that actually existed between the contracting parties, that a contractor’s surety who takes over and completes a project after the contractor’s default and termination is likewise bound by the contract’s dispute provisions. The ruling reinforces the significant risk of waiver of claims by contractors and their sureties when claims are not promptly submitted in accordance with contract provisions governing disputes, even though all parties are aware of the dispute and claim.