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, our construction law firm advises owners and contractors on a broad range of complex risk management issues and guides them in selecting and implementing proactive risk management programs.

While no risk management plan can prevent every complication, Goldberg Segalla construction attorneys can help you reduce your risk by providing coverage analysis and recommendations throughout all phases of construction, up to and including litigation.

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

• Pre- and post-award bid protests
• Contract drafting, negotiations, and certifications
• Government competition requirements
• Construction insurance – including contractor-controlled and owner-controlled insurance programs (CCIP/OCIP)
• Cooperative research and development agreements (CRADAs)
• Employment and labor compliance and dispute resolution
• False claims act litigation
• Land use and zoning
• Minority or Woman-owned Business Enterprise (MWBE) certification
• Overcharges and pricing issues
• Requests for proposals (RFPs)
• Service Contract Act (SCA) compliance
• State procurement laws
• Wage and hour claims

Contracts

Backed by the transactional and litigation experience of the attorneys in our Corporate Law and Transactions and our Commercial Litigation and Arbitration practice groups, our construction attorneys prepare and negotiate construction-related contracts with a focus on avoiding risk, minimizing potential liability, and protecting your business for the long term. We have done this successfully for clients on a wide range of 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 advise clients with a focus on avoiding future litigation and preparing for the full range of issues that frequently arise from government contracts. When necessary, however, our construction litigation attorneys 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

We leverage the deep knowledge and experience of Goldberg Segalla’s Global Insurance Services team to help construction clients manage risk through practical and thorough insurance coverage analysis. We handle 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 contractors and owners on the implementation of, and compliance with, contractor-controlled or owner-controlled insurance policies (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

Goldberg Segalla construction transaction lawyers 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 and 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.

Goldberg Segalla is a leading voice in the construction industry defense bar, with a deep bench of experienced litigators across the firm’s national footprint recognized for their industry leading advocacy in some of the most high-profile worksite personal injury, design defect, and other complex construction and energy litigation of recent decades.

Construction Contract Litigation

Our construction and corporate teams include highly experienced contract lawyers and dynamic corporate attorneys. Synthesizing their intimate knowledge of construction with experience drafting, revising, negotiating, and litigating complex contracts, we handle the full range of contractual disputes that commonly arise in the construction and energy industries:

• Change orders
• Construction sequencing/project access
• Delays from negligence, improper permitting
• Differing site conditions
• Extra/out-of-scope work
• Fraud/failure to disclose known information
• Plans and specifications/scope of work
• Shop drawings and submittals
• Subcontractor substitution
• Supply chain disruptions
• Termination

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.

Our construction law attorneys 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 individual projects along with business and professional reputations and the long-term success of a company. Our construction defect attorneys have 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.

Goldberg Segalla construction defect attorneys defend 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

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 the protections afforded to adjacent property owners frequently depend 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 relevant caselaw across our national footprint, 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 Construction Litigation and Counsel team has a history of offering creative, tailor-made service models to meet our clients’ needs and ensure success when the stakes are the highest.

Goldberg Segalla construction litigation attorneys have amassed decades of collective experience defending worksite accident and grave injury cases in state and federal courts throughout the country. In addition, several members of our team regularly act as arbitrators or mediators for construction worksite injury claims.

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

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

By formulating aggressive and creative strategies, our construction law firm has 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.

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 occurs, 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 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 construction 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.

Sharing our knowledge of New York Labor Law with the legal and construction communities, three members of Goldberg Segalla’s construction practice group make up 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. Goldberg Segalla construction law attorneys also contributed six chapters to the book. Our own bi-annual Labor Law Update newsletter also keeps clients informed about significant changes in New York Labor Law and the latest cases.

Even before the start of a construction project, Goldberg Segalla 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:

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

We also partner extensively with merit shops to manage their day-to-day employee relations issues with an emphasis on preventing litigation. When litigation is unavoidable, we work with companies and employment practices liability (EPL) insurance carriers to counsel and 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.

Many of our Construction attorneys have OSHA 10-hour and OSHA 30-hour Occupational and Safety Health Standards for the Construction Industry (CHST) training certifications. This group regularly advises and represents employers in the construction industry as follows:

• Managing inspections for employers, regularly appearing on-site immediately after accidents involving grave injury, catastrophic loss, and multiple fatalities
• Counseling employers on their rights and responsibilities
• Analyzing and developing safety programs
• Conducting and assisting with company self-audits, including ensuring that the audits remain privileged and protected from disclosure
• Providing day-to-day counsel on the myriad safety issues employers face, including any changes or developments in occupational safety and health law

In addition, we provide our clients with regular updates on new regulatory requirements, industry news, and practical strategies to eliminate and/or significantly reduce any potential exposure.

Proactive Counsel to Minimize Risk

With Goldberg Segalla as counsel, compliance with OSHA and other safety standards need not be difficult, nor a hindrance to productivity. We work with clients to understand their operations and develop practical systems and strategies that serve the dual purpose of promoting safety and minimizing exposure, while also preparing for inspections before they occur. We also undertake comprehensive reviews of a company’s safety program, offering risk-prevention counsel backed by our experiences litigating matters with Department of Labor attorneys.

Our team can assist with:

• Hazard identification and analysis
• Implementing company-wide compliance policies and risk-avoidance strategies
• Complete review of a company’s safety program, including form accident report, incentive program, health and safety plan, training, injury recording, documentation, and more
• Educating both supervisory and non-supervisory employees on applicable standards and rights and responsibilities in the event of an inspection
• Performing or assisting with self-audits

Clients in construction and many other industries experience the greater efficiencies and cost savings benefits of working with the Goldberg Segalla Workers’ Compensation team. We defend clients in cases ranging from minor to grave injury, as well as in the accidental and occupational disease contexts. We also regularly counsel employers on proactive ways to 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.

Goldberg Segalla attorneys 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.

Goldberg Segalla attorneys regularly 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. Our long track record of successfully handling environmental claims under commercial general liability and specialty environmental policies includes claims involving pollution exclusion, surface and groundwater contamination, ground pollution, and hydrofracking regulations.

Goldberg Segalla construction litigation 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.

Goldberg Segalla construction transactions lawyers 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 construction 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

Because of the combination of our experience in construction and Labor Law litigation, the bench strength of our Workers’ Compensation practice, and our firm’s distinctively collaborative culture, Goldberg Segalla attorneys have been able to provide comprehensive defense and legal counsel on our clients’ large-scale OCIP and CCIP construction projects through our OCIP/CCIP Joint Defense Program.

By partnering with our clients from the outset of a project, we have developed proactive legal solutions to mitigate risks, limit liability, lower legal spending, and protect OCIP/CCIP loss finds, which makes an impact on each project’s bottom line. OCIP clients face risks and liabilities for both worksite accident liability and workers’ compensation claims, both of which proceed on very different timelines. We offer a coordinated defense from the outset that results in significant savings, and more efficient and favorable resolutions.

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 women 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 disputes, 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