Records Can Save You From a Frivolous Lawsuit

THE DELIVERED NOTICE that we were being sued was devastating. The fact that other firms were also named did not ease our concerns. It would be necessary to dust the cobwebs off our records and test our memories: The incident leading to the lawsuit had occurred years previously. A ceramic tile contractor had fallen from scaffolding. Having lost his case against the general contractor, he was suing

THE DELIVERED NOTICE that we were being sued was devastating. The fact that other firms were also named did not ease our concerns. It would be necessary to dust the cobwebs off our records and test our memories: The incident leading to the lawsuit had occurred years previously.

A ceramic tile contractor had fallen from scaffolding. Having lost his case against the general contractor, he was suing all the other trades for clutter that, he claimed, caused his fall.

His injuries were quite real and I remembered the accident vaguely. As he fell from the narrow scaffolding he was using, he grabbed the door to a large pizza oven and did some serious damage to his arm. That evidently led to surgeries and long-term disability.

He was self-employed and had no insurance to cover the expenses. The approach being used by his lawyers is often referred to as a “shotgun-style lawsuit” because it names everyone connected to an incident in the hope that insurance companies will offer substantial sums to settle out of court in order to avoid huge legal fees.

Naturally, this set a number of wheels into motion. Records were pulled from storage; contract language was reviewed to drill down into the legal mumbo-jumbo about what, if any, insurance coverage was required of subcontractors; and who was responsible for jobsite cleanliness. In short, who bore responsibility for jobsite safety?

And just as I’d remembered, the contract contained a section that had those details in writing. Each subcontractor was required to furnish proof of insurance coverage, and if you failed to properly clean up after your work, you would be cited and back-charged by the general contractor. We had not been cited or back-charged during the course of this job.

By his own previous testimony, the ceramic tiling contractor had admitted that the area where he needed to work was cluttered and that he had complained to the general contractor’s foreman. The tiling contractor claimed the foreman said the area would be cleaned before the next day. It was not, but he proceeded with his work in spite of the remaining clutter. He also admitted attempting to move the scaffolding while at its top instead of climbing down to safely relocate it from floor level. In short, he admitted violating safety practices.

Next came the calls to our insurance carrier and a conference with all our employees who had worked on this commercial jobsite. The consensus was that this had been an unusually cluttered jobsite with a number of trades not bothering to clean up after themselves. The area in question was one where we had no work to do other than overhead ductwork, which had long since been completed.

All our fittings and piping were stored beneath footed kitchen equipment and completely out of walking areas. In short, we were not at fault. Our policy has always been to clean up as we work and to store materials out of harm’s way, both for workers’ and the material’s safety.

Our costs were escalating and we hadn’t yet consulted with an attorney! Our insurance company wanted a detailed letter written regarding everything we could remember - copies of the daily work sheets with dates, employee recollections and a copy of the contract.

Once we completed these tasks, our insurance company determined we were on solid ground and agreed that no settlement offer would be made, providing we were willing to go to trial. Dang right I was willing to testify! I was mighty steamed that we had been drawn into such a stupid and frivolous lawsuit.

As I saw it, one primary person was responsible — the self-employed tile contractor. If there was any secondary responsibility, that would have been the general contractor’s, whose jobsite foreman had failed to cite the trade(s) responsible for the mess and that he hadn’t seen to it the area was cleaned prior to the ceramic tile work being performed.

That’s assuming the job had gone by the book, which ignores real-world conditions. It is not atypical for mechanical contractors to be exposed to a host of unsafe working conditions on fast-track jobsites — bared live electrical wiring, both single- and multi-phase; jagged debris under foot, often containing exposed screws and nails pointing upwards; overhead workers who might drop materials or tools, or slip and fall onto another worker. In short, utter chaos prevails as critical-path timelines are overlapped for all trades! Safety is at risk and it’s basically a free-for-all.

Once our evidence was presented, we were dropped from the suit. If there’s a lesson to be learned here, it is that we will be much sharper about documenting jobsite accidents that don’t directly involve our own employees.

If you don’t have written policies in place regarding issues such as keeping your work areas clean and free of hazards, make that a priority — today — and have your employees sign it to document their responsibility. Grant them the extra time on the job that cleaning up requires. CYA (cover your assets)!

Dave Yates owns F.W. Behler, a contracting company in York, Pa. He can be reached by phone at 717/843-4920 or by e-mail at [email protected].

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