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Showing posts from September, 2013

IBHS Releases Midterm Update to Building Code Activity Report

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Insurance Institute for Business & Home Safety (IBHS) released a midterm update to its Rating the States Report, which reviews the progress the 18 most hurricane-prone coastal states along the Gulf of Mexico and Atlantic Coast have made in strengthening their residential building codes. 

Rating the States Midterm Update reviews building code activity in the same states featured in IBHS's original report released in January 2012, assessing them according to whether they have taken positive action, negative action or no action to improve their codes during the ensuing 18 months. Although this update does not re-score each state, it discusses actions taken to provide more current insights into the strengths and weaknesses of each state system. IBHS plans to issue a new report in 2015, which revises the rating for each state based on actions taken since the original report. 

The midterm update reports that most of the states with strong building code systems in place at the time of …

BLS Report Shows Reduction in Fatal Occupational Injuries in 2012

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The Bureau of Labor Statistics (BLS) has released preliminary results from its National Census of Fatal Occupational Injuries that show the number of fatal work injuries decreased in 2012. 

In 2012, 4,383 workers died from work-related injuries compared with a final count of 4,693 fatal work injuries in 2011. Based on preliminary counts, the rate of fatal workplace injuries in 2012 was 3.2 per 100,000 full-time equivalent workers compared with a rate of 3.5 per 100,000 in 2011. 

In response to the data, Secretary of Labor Thomas E. Perez issued a statement discussing the poor safety conditions that cause fatal injuries in the workplace each year. Although he applauded the reduction in fatalities in 2012, he said there still are steps to be taken to improve safety in the workplace. 

"Employers must take job hazards seriously and live up to their legal and moral obligation to send their workers home safe every single day," Perez said in his statement. "The Labor Department i…

DOL Issues Model Exchange Notice and Sets Compliance Deadline

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Beginning Jan. 1, 2014, individuals and employees of small businesses will have access to insurance coverage through the Affordable Care Act’s (ACA) health insurance exchanges (Exchanges). Open enrollment under the Exchanges will begin on Oct. 1, 2013. ACA requires employers to provide all new hires and current employees with a written notice about ACA’s Exchanges. This requirement is found in Section 18B of the Fair Labor Standards Act (FLSA). On May 8, 2013, the Department of Labor (DOL) released Technical Release 2013-02 to provide temporary guidance on the Exchange notice requirement. This temporary guidance will remain in effect until the DOL issues regulations or other guidance.  According to the DOL, future regulations or other guidance will provide employers with adequate time to comply with any additional or modified requirements.  In connection with the temporary guidance, the DOL announced the availability of model Exchange notices for employers to use to satisfy the Exchange…

Arbitrator Makes Determination of No Prevailing Party

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Diane N. Wells and Thomas G. Wells v. Hector Castro, et. al., 38 Fla. L. Weekly D1509a, Case Trytek v. Gale Industries, Inc., 3 So. 3d 1194 (Fla. 2009); however, the trial court's attempt to overturn and modify or vacate the arbitration award as to this determination was not within the limited statutory grounds for doing so pursuant to ss. 682.13 and 682.14.

No. 3D12-3039, filed July 13, 2013. Writ of Mandamus was issued to compel the trial court to confirm an arbitration award and to quash an order determining that one of the parties was the "prevailing party" for purposed of an award of attorney fees. The parties had agreed that the arbitrator could determine the "prevailing party" as part of the proceedings on breach of contract and construction lien claims, and the arbitrator made the determination that there was NO prevailing party under the factors set forth in

Editor's Note: This is yet another case holding that an arbitration award may not be revers…

RPM International and Tremco pay millions to resolve allegations regarding false claims

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RPM International Inc., Medina, Ohio, and its subsidiary, Tremco Inc., Beachwood, Ohio, have paid $60.9 million to resolve allegations that Tremco filed false claims in connection with two multiple award schedule (MAS) contracts with the General Services Administration (GSA) for roofing supplies and services, according to the Justice Department. 

Tremco failed to provide the government with price discounts given to nonfederal government customers. Tremco also allegedly marketed expensive materials to government purchasers without disclosing the availability of the same materials at a lower cost that were manufactured and sold by the company. Tremco is a manufacturer of construction products and services and is a subsidiary of the RPM Building Solutions Group. 
"Companies that knowingly skirt the rules for securing government business undermine the integrity of the procurement process and create an unfair advantage against companies that are playing by the rules," says Stuart F…

Case Discusses Differences between Arbitration and Appraisal Proceedings

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Citizens Property Insurance Corporation v. Mango Hill #6 Condominium Association, Inc., 38 Fla. L. Weekly D1507c, Case No. 3D10-2630, issued on July 10, 2013. Trial court's application of the Florida Arbitration Code to confirm an "appraisal" award for roof damages following Hurricane Wilma was held to be inappropriate, and the award reversed and remanded. This case discussed the differences between the more formal "arbitration" and  the less formal "appraisal" proceedings, with the later conferring no right of notice or to hear evidence, and with the sole issue for determination in an "appraisal" proceeding being the value of the loss, and NOT the other issues of coverage and defenses.
(From RPPTL Subcommittee) 
Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com




TRENT COTNEY, P.A. SELECTED FOR INCLUSION IN THE BEST LAWYERS IN AMERICA

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"Trent Cotney of Trent Cotney, P.A. in Tampa, Florida has been selected by his peers for inclusion in the 20th Edition of The Best Lawyers in America in the practice area of Construction Law.   Selection to Best Lawyers is based on an exhaustive and rigorous peer-review survey comprising of more than three million confidential evaluations by top attorneys."
Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com



Court Reversed Summary Judgment

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The Weitz Company, LLC v. MCW Acquisition, LLC, 38 Fla. L. Weekly D1472a, Case No. 3D12-1976, issued on July 3, 2013. Stating that "(T)he tail goes with the hide," the court reversed summary judgment in favor of a waterproofing contractor against a contractor's claim of defective construction. The defendant subcontractor was the assignee from the original subcontractor and had contented that the contractor could not be a third-party beneficiary under that assignment. In addition, based on the applicable de novo standard of review the appellate court determined that there was a genuine issue of material fact as to the extent of the assignee's work on the construction project such that summary judgment was not applicable.
(From RPPTL Subcommittee) 
Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com


OSHA Fall-Prevention Campaign Offers New Features

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The Occupational Safety and Health Administration (OSHA) launched its Safety Pays, Falls Cost campaign April 26, 2012. The nationwide information and media campaign was created to prevent construction-related falls and is designed to urge contractors, particularly small residential contractors, to provide their workers with fall-protection training and equipment.As part of the campaign, OSHA now is offering eTools to help construction employers and workers identify and control the hazards that commonly cause the most serious construction injuries. The standalone, illustrated, Web-based training tools on occupational safety and health topics are available free of charge byclicking here.

Additionally, OSHA offers a new Spanish-language fall-prevention website for Latino construction contractors and workers. Like the English website, the Spanish website is a vehicle to raise awareness among workers and employers regarding the hazards of falls from ladders, scaffolds and roofs. The educati…

Trial Court's Confirmation Reversed and Remanded

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Juan Carlos Carvajal v. Banc of American Investment Services, Inc., 38 Fla. L. Weekly D1655a, Case No. 3D12-2283, issued on July 31, 2013. Reversed and remanded trial court's confirmation of an arbitration award provided for attorney's fees, based on s. 682.22, F. S. conferring the determination of attorney fees in arbitration proceedings on the courts, in the absent of an express waiver. Here, the court found that an express waiver must be based on either a stipulation of the parties during the course of the arbitration proceedings or a specific finding based on competent substantial evidence that the parties had submitted the issue of attorney fees to the arbitrator. In this case, the court determined that a request for attorney's fees in the arbitration pleadings did not constitute sufficient evidence of an express waiver.
(From RPPTL Subcommittee)

Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney…

OSHA Issues Direct Final Rule Updating Standards on Signage

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OSHA June 13 issued a direct final rule to update the construction signage standards by adding references to the latest versions of American National Standards Institute (ANSI) consensus standards on specifications for accident prevention signs and tags. The rule retains the existing references to the earlier ANSI standards, which allows employers the option to either comply with the updated or earlier standards.
The rule also incorporates, by reference, Part VI of the Manual of Uniform Traffic Control Devices (MUTCD), 1988 Edition, Revision 3, into the construction standards.The rule becomes effective Sept. 11, 2013.
(From ABC)
Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com



Breach of Implied Warranties of Fitness and Merchantability

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Maronda Homes, Inc. v. Lakeview Reserve Homeowners Association, Inc., 38 Fla. L. Weekly, 38 Fla. Port Sewell Harbor & Tennis Club Owners Association, Inc. v. First Federal Savings & Loan Association of Martin County, 463 So. 2d 530 (Fla. 4th DCA 1985), the court rejected Port Sewell and affirmed that an action for damages for breach of implied warranties of fitness and merchantability applied to defective subdivision infrastructure improvements, such as roadways, retention ponds, underground pipes and drainage systems, even though these improvements do not immediately support the residences since there met the "essential services" test. The court also refused to retroactively apply s. 553.835, effective July 2, 2012, prohibiting such implied warranties for off-site improvements, based on the plaintiff's vested right in its cause of action accruing prior to this effective date, finding that to do so would be unconstitutional. L. Weekly S573a, Supreme Court of Flor…

NRCA Action Alert: House Must Address Roofing Industry Labor Needs in Immigration Reform

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House lawmakers currently are working on a series of targeted immigration reform measures designed to fix the nation's broken immigration system, and they are expected to vote on immigration legislation sometime this fall. With Congress in recess during August, now is the time for NRCA members to contact their representatives in support of legislation that helps stop illegal immigration and also meets the roofing industry's workforce needs. 
NRCA supports the establishment of a temporary visa program that protects U.S. workers, is governed by market forces and enables employers to legally obtain the workers needed to grow their businesses. NRCA has communicated support for such legislation to Congress on numerous occasions, and it is vital House lawmakers also hear directly from NRCA members. 

 (From NRCA)

Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com




Three Companies Ordered to Reinstate Workers for Whistleblower Violations

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Coit Services of Ohio has been ordered to reinstate a worker wrongfully terminated for reporting breaches of lead abatement protocol during home renovation work in Shaker Heights. The restoration and cleaning company must repay more than $161,000 in back wages, damages and fees for violating the Clean Air Act and Toxic Substances Control Act.
OSHA also ordered Marlborough, Mass.-based Brillo Motor Transportation Inc. to reinstate and pay a worker more than $131,000 after the agency determined he was wrongfully terminated when he refused to drive more than the allowable hours mandated by federal regulations. 
In a third case, OSHA ordered Metropolitan Aviation LLC to reinstate and pay a pilot more than $215,000 in back wages and damages after firing him for reporting an emergency landing. The air carrier violated the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century. Read thenews releasefor more details on this case and for information on the more than 20 whistlebl…

NRCA University Offers Webinar on New OSHA HazComm Rules

NRCA University will offer NRCA University Webinar: New OSHA HazComm Rules: What You Must Do Sept. 19 at noon CST. 
As of Dec. 1, revisions to the Occupational Safety and Health Administration's (OSHA's) Hazard Communication standard will take effect. Full compliance will not be required until 2016, but OSHA is requiring employees to be trained to understand the new labeling elements (such as pictograms, hazard statements, precautionary statements and signal words) and safety data sheet format by the Dec. 1 effective date. 

During the one-hour webinar, NRCA Director of Risk Management Harry Dietz will explain the changes to the regulations and outline exactly what steps you must take by certain dates to ensure you are in compliance with the new OSHA rules. 

The webinar is free for members and $55 for nonmembers. For more information or to register, click here

(From NRCA)


Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 w…

CURT Skilled Workforce Summit Sept. 11

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The Construction Users Roundtable will be holding their Fall Skilled Workforce Summit Sept. 11 in Naples, Fla. Learn more and register on CURT’s website.  CURT is hosting the Skilled Workforce Summit to address the direct and indirect impact of the workforce shortage on the construction industry and talk about how the industry can prepare.
The workshop is formatted to permit all attendees to actively participate and to engage in interactive discussions with others facing the challenges of doing more with fewer resources. Topics include: ·         The emerging workforce shortage and the impact on projects·         Contractor Workforce Development Assessment Tool·         Solutions for attracting new craft workers and growing the workforce pipeline·         Owner and contractor approaches to reducing labor risk·         The cost of workforce development inaction·         What associations are doing to address workforce concerns
In addition, ABC Vice President of Chapter Services Doug Curti…

OSHA and NIOSH Issue Hazard Alert

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OSHA and NIOSH issued a hazard alert to encourage employers that use 1-bromopropane to take OSHA and NIOSH have issued a hazard alert to urge employers that use 1-bromopropane to take appropriate steps to protect workers from exposure. Exposure to 1-BP has been associated with damage to the nervous system among workers, and it has been shown to cause reproductive harm in animal studies. The chemical is used in degreasing operations, furniture manufacturing, and dry cleaning. The hazard alert is issued in response to information on the increased use of 1-BP as a substitute for other solvents as well as recent reports of overexposure in furniture manufacturing.
(From OSHA)
Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com



ABI increased in July

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The American Institute of Architects' Architecture Billings Index (ABI), a leading economic indicator of construction activity, increased in July with an ABI rating of 52.7 compared with 51.6 in June. The inquiries for new projects score was 66.7 compared with 62.6 in June. A score above 50 indicates an increase in billings. 

Regional averages include the Northeast's rating of 54.3; South's rating of 54.2; West's rating of 51.1; and Midwest's rating of 50.8. Mixed-practice construction received a rating of 56.9; commercial/industrial construction received a rating of 54.2; multifamily residential construction received a rating of 53.3; and institutional construction received a rating of 50.6. 

"There continues to be encouraging signs that the design and construction industry continues to improve," says AIA Chief Economist Kermit Baker. "But we also hear a wide mix of business conditions all over the country, ranging from outstanding and booming to slow…

White House Releases Executive Order on Improving Chemical Facility Safety and Security

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Today, the President signed an Executive Order to improve the safety and security of chemical facilities and reduce the risks of hazardous chemicals to workers and communities. Incidents such as the devastating explosion at a fertilizer plant in West, Texas in April are tragic reminders that the handling and storage of chemicals present serious risks that must be addressed. The Executive Order directs Federal agencies to work with stakeholders to improve chemical safety and security through agency programs, private sector initiatives, Federal guidance, standards, and regulations. Read theexecutive order.
(From OSHA)
Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com



OSHA Releases New Fall Prevention Training Guide With "Tool Box Talks"

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A new OSHAFall Prevention Training Guidewith "tool box talks" is now available atwww.osha.gov/stopfalls/trainingresources.htmlto educate workers on how to stay safe while working on roofs, scaffolding and ladders. A fall prevention safety stand-down is set for August 6 at workplaces all across the Southeastern states, where OSHA will partner with trade, business and civic groups from Kentucky to Florida to provide workers focused training on how to plan ahead and use the right safety equipment. OSHA's latestblogdescribes how the Agency has adapted fall prevention and other safety and health information to new digital technology and to meet the needs of America's multilingual workforce. To register for the Southeast fall prevention safety stand-down, read thenews release, or contact Tom Bosley at678-237-0400
(From OSHA)

Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com




NRCA Issues Statement Regarding Tax Reform

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President Obama recently reaffirmed his support for tax reform that reduces tax rates for corporations only. To achieve these lower corporate rates, the president's plan would broaden the tax base, eliminating many tax credits and deductions that large and small businesses use to reduce their tax liability.

The proposal would create a larger disparity between corporate and individual tax rates that will stifle economic growth, which is desperately needed in this sluggish economy. Moreover, a study by Ernst & Young, New York, found that enacting "corporate-only" tax reform would result in a 9 percent, or $2.3 billion, tax increase on construction companies.

(From NRCA)

Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 www.trentcotney.com




NRCA Issues Action Alert

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Members of the House of Representatives currently are working on several targeted immigration reform bills that will be considered this fall. House committees already have approved bills to beef up border security, improve workplace verification programs and update temporary visa programs for high-tech and agricultural workers.

NRCA supports establishing a temporary visa program that protects U.S. workers, is governed by market forces and enables employers to legally obtain the workers needed to grow their businesses. NRCA members prefer to hire U.S. workers, but experience demonstrates this is not always possible. The difficulty of finding sufficient workers to fill job openings continues to be a serious problem for the roofing industry despite vigorous efforts to recruit U.S. workers.

NRCA supports legislation to create a new temporary visa program for lesser-skilled sectors of the economy, which will be introduced soon by Reps. Ted Poe (R-Texas) and Raul Labrador (R-Idaho).

NRCA has p…