Volume 8 - Number 3 | January 18, 2010 - Construction Claims Advisor

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You are here: Home » Volume 8 - Number 3 | January 18, 2010

Volume 8 - Number 3 | January 18, 2010

EDITOR'S NOTES | Issue 8-3: Should a subcontractor on a building renovation project be liable for a pre-existing safety hazard that had nothing to do with the sub's scope of work? The immediate answer would seem to be no. But, would the answer change if the subcontractor possessed actual knowledge of the hazard and failed to notify the prime contractor, resulting in the subsequent injury of the prime's employees?

This was the situation recently addressed by a California court. The court could find no duty owed by the subcontractor to the prime or its employees under the terms of the subcontract or under the common law of negligence. Then the court considered the state labor statute: Cal-OSHA. The result is surprising.

Another case this week involved a conflict between a cross section drawing and an explanatory note on the drawing. The issue was whether this was a patent, obvious ambiguity, obligating the contractor to seek pre-bid clarification from the project owner. It was a close case, reflected by a split 3-2 decision.

The third case this week involves a paving subcontractor's reasonable opportunity to complete its work. The prime contractor let the original subcontract schedule slide, and then demanded that the sub finish the paving within three days. The problem was that temperatures dipped below the minimum level required by the specifications.

SUB SHOULD HAVE ALERTED PRIME TO PRE-EXISTING SAFETY HAZARD: A subcontractor had a duty to alert the prime contractor to a latent, pre-existing safety hazard the sub did not create. But, the duty arose under state labor statutes, not common law or the contract.

SPLIT DECISION RULES DESIGN CONFLICT “PATENT”: A discrepancy between a drawing and a drawing note presented a patent ambiguity requiring a request for pre-bid clarification from the contractor. A dissenting opinion argued that the documents were not ambiguous at all and the contractor should be compensated for $1 million of extra work directed by the project owner.

CONTRACTOR DID NOT GIVE SUB REASONABLE OPPORTUNITY TO COMPLETE WORK: When a contractor let the original subcontract schedule lapse, the contractor was required to allow the subcontractor a reasonable period of time, under the circumstances, to complete performance.