Practice/Industry Group Overview
Accidents and defective construction associated with residential, commercial and industrial projects are on the rise, as are ensuing lawsuits. Economic pressures on the construction industry, cyclical booms resulting in a shortage of materials and trained workers, severely strained municipal inspection budgets and media-induced awareness of construction issues – from Chinese drywall to toxic mold – have combined to create an especially challenging environment for developers, design professionals, contractors and material suppliers on both public and private projects.
Firmly entrenched at the intersection of general liability and product liability, Wilson Elser is well suited to guide clients through the complexities of the legal system following the discovery of construction related defects. We also handle the legal aftermath of construction accidents—from accusation of professional negligence to those claims where the employer has lost workers compensation immunity and is directly liable to the plaintiff/employer—skillfully sorting out the liability for an injury or wrongful death.
We represent those directly involved in these disputes as well as their insurers and sureties, including owner-controlled and contractor-controlled wrap-up insurance programs. We know how to unravel the complexities that define construction liability to help protect our clients’ balance sheets.
With a commanding knowledge of right-to-repair statutes, warranty programs and case law in various jurisdictions, our attorneys provide experienced counsel in managing liability resulting from construction defects. Throughout the project development continuum--from planning, to design, to construction, to the efficacy of completed projects--we analyze and handle complex construction defect claims under typical general liability and payment and performance bonds, as well as subcontractor default insurance and consolidated insurance programs.
Our practice attorneys, several of whom have architectural and engineering backgrounds, move quickly to evaluate claims and determine the most effective strategy for defending against them. We advise clients of their right to attempt to repair alleged defects within statutory deadlines and anticipate the most likely litigation outcomes, thereby enabling them to make more informed decisions relative to proceeding to trial or negotiating a reduced settlement.
When appropriate, we work “cross practice” with our counterparts in Product Liability, who understand how best to defend against claims originating from a product’s design, manufacture or marketing. Such collaboration frequently spawns innovative strategies to tackle complex legal challenges, including class actions, multidistrict federal litigation, Consumer Product Safety Commission recalls, and ADA and OSHA compliance.
For more than three decades, liability resulting from construction accidents has been at the very foundation of Wilson Elser’s service offering. We assist countless public- and private-sector clients in mitigating and managing risk in connection with accidental injury and wrongful death. Claims for which we provide counsel frequently result from scaffolding and ladder failures, wall and roof collapses, falling tools and equipment, crane mishaps, construction vehicle accidents, electrical shocks and fires, and explosions.
While our practice focuses on effectively managing the entire litigation process, we understand that our clients prefer quick and cost-effective solutions to complex and potentially protracted liability cases. “Shelf life” is as important as any other substantive issue in handling files. Thus, we do our best to accelerate turnaround through procedural dismissals, substantive dismissals, successful tenders and negotiated settlements. We also make use of proactive post-claim and post-suit risk assessment and mitigation techniques that can help us close files quickly and efficiently. Opposing counsel’s familiarity with the talents and tenacity of our highly skilled trial attorneys undoubtedly contributes still further to early and favorable resolutions.
Consolidated Insurance Programs
Wrap or “wrap-up” programs can reduce costs and simplify insurance coverage for a construction project at a time when materials costs, regulations and financing collide with liability claims, fines and overruns. Whether an owner-controlled insurance program (OCIP) or a contractor-controlled insurance program (CCIP), or a combination of the two, they cover the owner, general contractor, sub-contractors and all other parties involved in the project.
Firmly entrenched at the intersection of general liability and product liability, Wilson Elser is well suited to guide clients through the complexities of the legal system following the discovery of construction related defects and in the aftermath of construction accidents.
Under these consolidated insurance programs (CIPs), terms and conditions, while very much like standard policies, can be nuanced to provide for the specific interests of the various participants, and along these lines, risk appetite can be an elusive target. Wilson Elser’s deep experience in insurance law and insider knowledge of the industry give us an edge in representing CIP principals and handling litigation concerning their rights and liabilities in this relatively untested area.
Wilson Elser is especially attuned to the various aspects of wrap-up programs, including:
- Interpreting language customized to one insurer
- Advising on concerns that are unique to each insured
- Determining whether excess coverage could impact the CIPs provisions
- Defining the roles and responsibilities of a program administrator
- Allocating financing apportionment or adjustments
- Covering the full range of risks for the discrete insureds
In addition, Wilson Elser has the reach and full-service components to represent CIPs in matters involving virtually every area of legal practice. We work cross-practice to help ensure solid representation on everything from product liability, design professionals liability, employment law, environmental and toxic tort issues to general liability and casualty, business matters, bankruptcy, contract law, and real estate and development.
Whether claims stem from construction defects or accidents, our attorneys understand and appreciate cost-effective conflict avoidance and dispute-resolution protocols. We regularly engage the services of experienced mediators who focus on construction litigation, especially when looking to avoid the time and costs that otherwise would be involved in extensive discovery and trial.
Should matters nonetheless escalate, we do not hesitate to try cases in court. Wilson Elser is proud of its reputation as one of the largest and most successful trial law firms in the country. While most attorneys venture no further than the courthouse steps, Wilson Elser works vigorously inside the courthouse to increase the likelihood of favorable outcomes. Best known for our involvement in high-exposure cases, we also handle more modest and less far-reaching matters with the same levels of rigor and discipline.
Exceptional construction requires proper means, methods, technique sequences and procedures and is defined by planning, precision and strength. Exceptional construction counsel is similarly defined and routinely delivered by the practice attorneys at Wilson Elser.