Construction

By assessing the associated risks of any construction project from the start, we help construction companies and project owners minimize exposure and avoid or reduce potential costs. Beyond analyzing insurance policies and business relationships, we advise owners and contractors on a broad range of complex risk management issues and guide them in selecting and implementing proactive risk management programs. While no risk management plan can be truly bulletproof, we help our clients reduce their risk by providing coverage analysis and recommendations throughout all phases of construction, up to and including litigation.

We regularly provide risk management, litigation avoidance, and general pre-construction counsel on issues including:

• Bid protests
• Bonding/project finance
• Construction insurance—including contractor-controlled and owner-controlled insurance programs (CCIP/OCIP)
• Contract drafting, negotiation, and certifications
• Cooperative research and development agreements (CRADAs)
• Employment and labor compliance and dispute resolution
• Environmental compliance and litigation
• False Claims Act
• Government competition requirements
• Land use and zoning
• Minority or Woman-owned Business Enterprise (M/WBE) certification
• OSHA compliance and investigations
• Overcharges and pricing issues
• Pre- and post-award bid protests
• Requests for proposals (RFPs)
• Service Contract Act (SCA) compliance
• State procurement laws
• Suspension or debarment
• Wage and hour

Contracts

Backed by the extensive transactional and litigation experience of our Corporate Services and Commercial Litigation attorneys, our team prepares and negotiates construction-related contracts with a focus on avoiding risk, minimizing potential liability, and protecting the business for the long term. We have done this successfully for clients on a wide range projects, so we know how to navigate the intricate relationships among the many parties involved in construction contracts.

Government Projects and Contract Requirements
For private businesses that regularly serve the government or are looking to expand their business into government projects, we help navigate the unique legal and business issues involved in government construction contracting. We have extensive experience advising on ways to avoid future litigation and counsel on the full range of issues that frequently arise from government contracts. When necessary, however, we bring the advantage of our extensive trial experience to pursue bid protests or represent clients in litigation before state and federal courts and agencies, including the Court of Federal Claims, the Board of Contract Appeals, and the Government Accountability Office.

Construction Insurance and CCIPs/OCIPs

Goldberg Segalla’s Global Insurance Services team has been ranked among the world’s biggest and best practices of its kind. We leverage that team’s knowledge and experience to help construction clients manage risk through practical and thorough insurance coverage analysis. We have extensive experience handling issues such as damages resulting from product or construction defect, fire, and global warming claims, and employer’s liability exclusions in commercial general liability (CGL) policies involving construction site subcontractors.

Our combined strength in construction and insurance coverage makes us exceptionally qualified to advise owners or contractors on the implementation of, and compliance with, CCIPs/OCIPs, which owners of large-scale construction projects increasingly require. This type of policy provides uniform and universal insurance coverage for the owner, general contractor, and any-tier subcontractors working on the construction site, with the goal of creating a uniform safety/risk management program—and a unified defense—in the event of subsequent litigation related to worker injury, construction defect, or workers’ compensation.

Project Finance

We understand the intricate financial relationships at play in construction projects and put that knowledge to work during the project financing phase, where we help clients develop innovative solutions with a focus on expediting revenue procurement and generating cash flow for both the short term and the long term. We analyze financing arrangements, bids, contracts, and other related notices, and we have significant experience with tax-exempt or other special bonds as well as various government programs, incentives, grants, and tax incentives that enable our clients to take their projects to the next level.

• We recently secured a $70 million arbitration award for a national renewable energy contractor in a complex construction development dispute. At the heart of this matter were issues of public bond and federal grant financing and construction trust fund misappropriation, along with construction delays, design deficiencies, and claims of liquidated and consequential damages.

Goldberg Segalla is a leading voice among the construction industry defense bar, with a deep bench of experienced litigators across the firm’s national footprint recognized for their crucial involvement and extraordinary results in some of the most high-profile worksite personal injury, design defect, and other complex construction and energy litigation of recent decades. These attorneys work with clients to anticipate and obviate risks and litigation—but when litigation does become unavoidable, or serves the client’s strategic interest, our attorneys are the smart choice to take any matter to a successful resolution.

Acceleration and Compression

When foreseeable or unexpected delays arise on a construction project, and complications involving the “acceleration” and “compression” of the production schedule follow, our attorneys have the experience and skill to help both owners and contractors navigate litigation. We regularly guide clients through acceleration and compression litigation-related issues including:

• Actual versus constructive claims
• Analysis of required protections
• Apportionment of associated costs
• Disputes over the existence of an excusable delay, timely notice of the delay, proper request for a time extension, etc.
• Identifying acceleration triggers
• Liquidated damages

Design and Construction Defect Claims

Design and construction defect claims can threaten bottom lines along with reputations and long-term livelihood. Our team has a strong track record of protecting contractors, construction managers, and design professionals and their work products on projects of all sizes and scope, ranging from schools and hotels to pipelines and renewable energy infrastructure. Our work has even helped rewrite the law at the appellate level in favor of the design professional community. When design or construction defect claims arise, we bring extensive experience protecting clients against claims involving issues and allegations including:

• Defective workmanship
• Design defects
• Faulty or defective materials
• Improper installation
• Indemnification and contribution
• Negligent engineering and inspection
• Negligent supervision of construction projects
• Professional negligence

But we’re not just construction litigators. We are corporate and transactional attorneys and professional liability lawyers, too. We understand and appreciate the contractual relationships at play and put that knowledge to work for our clients, providing proactive, risk-minimizing counsel throughout all phases of a project—from initial conception and design all the way through completion and beyond—so companies and professionals can focus on their business and their practice rather than on protracted lawsuits.

Excavation and Underpinning

When excavation occurs on a construction site, it is crucial to take additional steps like underpinning and shoring to protect the surrounding properties, buildings, and their occupants to avoid or mitigate the risk of adjacent property damage or the collapse of structures on them—and to ensure that any underpinning and/or shoring is performed properly, and doesn’t cause additional, separate damage.

Goldberg Segalla’s construction attorneys have successfully defended owners, general contractors, various-tier subcontractors, and design professionals from claims of negligent construction related to excavation and underpinning. We know from experience that frequently the protections afforded to adjacent property owners depends on the location of the construction work—and also how the imposition of strict liability in many cases affects not only the excavation and underpinning contractors, but also the owner and general contractor.

Our experience with the caselaw in various jurisdictions, along with our understanding of the relationships among all parties potentially in play, positions us to provide superior representation in the event of excavation- or underpinning-related claims.

Bad Faith Claims

For insurers, the complex nature of construction projects and the number of parties involved create high potential for bad faith claims over what may have been rightfully denied coverage. Our approach to avoiding or defending bad faith claims starts with proactive management of the insurance claim or coverage request process from day one. We employ early motion practice to dismiss bad faith and extracontractual claims at the onset of litigation, ensuring the proper confines of discovery.

Thomas F. Segalla, a founding partner of our firm and co-author of the renowned insurance law treatise Couch on Insurance 3d, is one of the world’s foremost experts on bad faith and extracontractual issues. He has served as an expert witness in more than 100 bad faith, coverage, and extracontractual cases across the country, and he was the founding President of the American College of Coverage and Extracontractual Counsel (ACCEC). With decades of experience handling the defense, insurance coverage, and claims-handling aspects of bad faith and construction site personal injury accidents (including under Labor Law §§ 200, 240(1) and 241(6)), Tom is also the author of the Mealey’s Litigation Report: Construction Defects Insurance annual “Construction Defect Claims Update.”

Creative Risk and Litigation Management Solutions

As industry leaders pioneering bold projects, new technologies, and innovative practices our clients often require more than a traditional law firm’s defense capabilities and standard risk-avoidance counsel. Our team has a history of offering creative, tailor-made services models to meet our clients’ needs and ensure success when the stakes are the highest.

For just one example, we recently embedded a veteran corporate attorney on-site at a multibillion-dollar, multi-state natural gas pipeline project to offer day-to-day operational counsel, preserve evidence and documentation, troubleshoot numerous and diverse legal issues as they arise, and work with the client on long-range risk-avoidance strategies. Through this unusual and cost-effective arrangement, our attorney was able to provide the client unsurpassed value, avoid actual risks, and hedge against potential future litigation with a level of preparation and legal oversight rarely possible on an active construction project.

Goldberg Segalla attorneys have amassed decades of collective experience defending worksite injury cases in state and federal courts throughout the country, and some members of our team themselves have acted as arbitrators or mediators for construction worksite injury claims.

We handle the full range of claims and matters arising from worksite injuries, such as:

• Common-law negligence claims
• Insurance coverage and indemnity disputes
• New York Labor Law/Scaffold Law claims
• Claims of failure to provide a safe place to work
• Alleged Industrial Code violations
• OSHA investigations and claims
• Workers’ compensation issues

By formulating aggressive and creative strategies in defense of our clients, we have helped clients avoid or limit exposure in litigation altogether. We have also effectively resolved worksite injury cases through both dispositive motions and trial. Our understanding of the ever-evolving law enables us to develop an effective strategy early in the process. In addition, we provide in-house seminars to clients on the present status of substantive issues, as well as on significant legal issues such as additional insured status, anti-subrogation rules, and liability for failure to procure insurance.

Rapid Response Team
With unmatched training and hands-on experience in post-accident investigations, the attorneys on Goldberg Segalla’s Construction Rapid Response Team are ready to deploy at a moment’s notice whenever and wherever our clients need us, to provide immediate direction, control, and documentation at an accident scene. We have on-call relationships with private investigators, accident reconstruction and safety experts, and other professionals, who work together to protect our clients from potential claims in unexpected and high-stakes situations.

We understand that job sites are fluid. Even after an accident, financial, political, logistical, and other pressures often necessitate that the work continue. There may be multiple contractors with all types of equipment present at the site who may or may not be involved or may or may not have witnessed the accident; frequently, an insurance carrier is involved. From the moment our phone rings, we know that our job is to coordinate the post-accident investigation, tap the needed experts and other resources, interview the claimant within 24 hours, and ensure the preservation of evidence. Just as important, we keep the client thoroughly updated and involved at all times—through mobilization, assessment, investigation, and successful resolution.

New York Labor Law and “Scaffold Law”
Goldberg Segalla has litigated many of the leading cases in New York State involving the “Scaffold Law” sections of New York’s Labor Law—the antiquated, plaintiff-friendly, and controversial law that costs the private sector an estimated $1.5 billion annually and can impose absolute liability on owners and contractors for elevation-related construction accidents. In fact, our lawyers are integrally involved in the call for reform of this law, through presenting at municipal and industry conferences as well as publishing critiques in legal and trade journals.

Consistently obtaining victories in New York’s appellate and trial courts, we continue to create favorable caselaw for the defense of the industry against Scaffold Law claims—such as cases in which the weight and distance of a falling object is not significant enough to trigger liability, instances when a plaintiff had been directed not to use a piece of equipment and then misused it, and cases in which a plaintiff was warned not to use a cracked plank that caused his fall while others were readily available.

Our Construction practice group serves as the editorial team for the premier treatise on New York Labor Law litigation: Construction Site Personal Injury Litigation: New York Labor Law §§ 200, 240(1), and 241(6), published by the New York State Bar Association. Our own Labor Law Update newsletter also keeps clients informed about significant changes and the latest cases.

Even before the start of a construction project, our attorneys counsel clients on ways to minimize the potential for risk in labor relations. We help clients by advising them on National Labor Relations Board (NLRB) and equivalent state board practices, termination issues, workers’ compensation, preventing union “salting,” and other matters related to organized labor.

Our experience includes:

• Filing and defending against unfair labor practice charges
• Conducting labor negotiations, including representation during state and federal mediation
• Litigating issues relating to collective bargaining agreements
• Handling grievance arbitrations and disciplinary procedures
• Litigation related to arbitrability, arbitration award enforcement, and award vacature
• Conducting workplace investigations and audits

We also partner extensively with non-unionized companies in the construction industry to manage their day-to-day employee relations issues with an emphasis on preventing litigation. When litigation cannot be avoided, we bring our extensive experience working with companies in a variety of industries and employment practices liability (EPL) insurance carriers to defend against a wide range of claims, including harassment, discrimination, retaliation, family medical leave, and unemployment. Our team has exceptional experience handling wage and hour claims, wage payment issues, and Fair Labor Standards Act (FLSA) litigation on an individual and collective action basis.

Goldberg Segalla attorneys frequently handle environmental issues arising from construction projects. We counsel on and defend environmental actions under various laws, including the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); New York’s Navigation Act governing petroleum discharges; and other federal and state rules and regulations. We have represented manufacturers in large, multi-party litigations involving environmental remediation and have acted as liaison counsel for third-party defendants in Superfund/CERCLA landfill cases. With our extensive background in environmental claims under commercial general liability and specialty environmental policies, we have assisted clients with claims involving the application of the pollution exclusion, surface and groundwater contamination, ground pollution, and hydrofracking.

Many of our construction attorneys have OSHA 10-hour or OSHA 30-hour training certifications. At each stage of a construction project, we counsel clients on OSHA compliance and maintaining safe work environments. We can assist with:

• Implementing company-wide compliance policies, risk-avoidance strategies, and a response plan in case inspectors arrive
• Developing company safety manuals and other materials
• Advising on how OSHA standards and other rules, regulations, or statutes apply to each particular business
• Educating managers, compliance officers, and employees on applicable standards and potential penalties
• Performing a company self-audit or participating in an OSHA voluntary compliance program

In the event an OSHA citation is issued, we employ our extensive experience negotiating citations as well as handling administrative proceedings before the Occupational Safety and Health Review Commission (OSHRC). Our services include:

• Guidance through OSHA investigations, including procedural steps and advice on the company’s rights and responsibilities
• Investigating workplace accidents and employee claims
• Defending against citations, including appearing for informal conferences and contesting citations
• Representing clients through the entire litigation process before the OSHRC
• Helping clients stay in compliance with OSHA requirements and minimize future risk

Clients in construction and many other industries are experiencing the greater efficiencies and benefits of the Goldberg Segalla Workers’ Compensation team’s unique practice model. We put this approach to work for clients in cases involving both major and minor injuries, in the accident and occupational disease contexts, and also counsel employers on ways to proactively reduce risk of worker injuries. We are experienced with the common pitfalls unique to workers’ compensation claims in the construction field—including litigation after projects have been closed; different safety managers; retention of employees and location of former employees, limited medical testimony; misplaced evidence; faulty memories or “unwitnessed falls”; and evidence in the form of photos, videos, and recordings on phones. We help construction clients with:

• Navigating these unique workers’ compensation pitfalls
• Coordinating workers’ compensation and general liability defenses
• Leveraging workers’ compensation litigation to reduce general liability exposure
• Handling accident investigations and securing signed statements
• Discovery and the collection and preservation of evidence
• Early execution of forms OC-110A and HIPPAs
• Aggressively defending claims

We handle workers’ compensation litigation throughout California, Connecticut, Florida, Illinois, Maryland, Missouri, New Jersey, New York, North Carolina, and Pennsylvania, and before all appropriate government agencies and courts and in all forums of alternative dispute resolution. Through our work handling regular and trial hearings, permanency determinations, and testimony of claimants, employer witnesses, and medical experts, we strive to resolve cases as completely and efficiently as possible, with a focus on bringing them to final closure for the defendant.

Another way we provide clients in construction with a strong competitive advantage is through advocacy during the Medicare Set-Aside (MSA) process. Our team includes a Medicare Set-Aside Consultant, certified from the International Commission on Health Care Certification, which allows us to bring exceptional strategic insight to cases involving MSAs and the allocation for the future medical costs of an individual on (or soon to be on) Medicare following settlement. The practice also includes Goldberg Segalla’s innovative and game-changing Opioid Impact Program, created to confront the national opioid epidemic and reduce its impact on employers by reducing claimants’ use of prescription medications and identifying and mitigating claims that have the potential to spiral out of control in terms of cost and exposure.

Our attorneys frequently parachute into the middle of problematic construction projects all over the country. We’re adept at triaging, strategizing, and executing plans to stem claims, change the course of disputes, and mitigate future risks. Other clients bring us on long before a project begins. But, no matter when we become a client’s legal partner or what stage a construction project is in, we always keep the client’s long-term objectives in mind, and make every decision with the aim of achieving them. We know that our construction clients are often thinking about the next big project even as we’re negotiating or litigating issues in the current one. And that’s why they choose our team: We’ll see every job to a clean completion, so that you can focus on the next one.

Collection

We understand the complexities that contractors and construction businesses of all sizes face by delaying some portion of payment until the completion of a project. Construction professionals and business owners become, in effect, lenders to developers and property owners, while simultaneously facing pressure from any number of subcontractors — and this situation is frequently extended across multiple projects of various sizes and in various stages of completion.

We rely on our deep knowledge of each client’s business — plus our team’s experience with public and private construction projects of all sizes — to determine the most effective remedy for clients when they do not receive payment. We can pursue collection and payment and performance remedies through settlements, judgments, arbitration, or other agreements, and are adept at helping clients choose the right combination of strategy and tactics to close out a project, secure payment, avoid unnecessary claims or complications, and meet long-term objectives.

Mechanic’s Liens

Our attorneys know how to maneuver the intricate steps required to ensure payment is received for services rendered. When a contractor or subcontractor is not compensated or not fully compensated for the work, labor, and/or materials provided, we help clients evaluate whether filing a mechanic’s lien is the best tactic available. Our attorneys are well versed in state lien laws and the strict deadlines associated with them, allowing us to simplify and streamline the process for our clients.

We assist clients in all aspects relating to mechanic’s liens, including:

• Enforcing liens
• Filing liens
• Filing notice of pendency
• Foreclosure actions
• Inspection of books and records
• Itemizing mechanic’s liens
• Lien dismissal
• Lien removal
• Priority issues
• Removing defective liens from a property
• Trust diversion claims
• Trusts
• Undertaking and bonding
• Willful exaggeration of lien amounts

Surety Bond Claims

When it comes to construction, Goldberg Segalla represents sureties in the full spectrum of bond claims and related matters. As leaders in construction and surety law, we are well-versed in the nature of these intertwined industries and the forces that shape them. This deep industry knowledge helps us understand what is important to our clients—and therefore tailor our legal services to protect their interests and better serve their unique needs.

Our work often involves contract surety bonds, including the negotiation of surety agreements, analyzing and managing surety risks and, if litigation is unavoidable, representing clients in all phases of surety disputes.

By partnering with clients from the outset of a project and providing a uniform defense to both workers’ compensation and general liability/New York Labor Law claims, we have developed proactive legal solutions to mitigate risks, limit liability, lower the client’s legal spending, and protect OCIP/CCIP loss funds—making an impact on each project’s bottom line.

Goldberg Segalla’s pioneering and cross-practice Women in Construction team focuses on helping women in construction—business owners, contractors, architects and design professionals, and more—access opportunities, win bids, and compete successfully in this field.

The group comprises attorneys from across the firm’s national footprint, with experience in construction litigation, employment law, transactions, regulatory compliance, workers’ compensation, and more. Together, these lawyers have helped countless construction business owners and professionals find and position themselves to obtain additional contracted-for work and exposure to governmental contract bids, navigate bid processes, secure MWBE certification or re-certification, and ensure compliance with the various mandates imposed on utilizing MWBE-certified firms—as well as avoid risk, defend themselves against the full spectrum of construction-related claims, complete projects, and achieve their long-term goals.

The team’s leaders each have decades of experience in the field, and have been active advocates through industry organizations such as Professional Women in Construction (PWC), the National Association of Women in Construction (NAWIC), the National Association of Black Women in Construction (NABWIC), and the American Business Women’s Association (ABWA). Get in touch with them to learn more:

Kelly A. McGee
646.292.8794 | kmcgee@goldbergsegalla.com