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Taft Construction Practice Group
Creating the foundation for a solid future
Taft has been helping clients build their futures for more than 125 years. We are business attorneys who see the big picture. Our Construction Team has broad experience in the construction industry and can provide a solid legal foundation for the work you do. We can assist you with every aspect of your project, from start to finish, whether you are an owner, developer, design professional, contractor or supplier. Our construction team is as multifaceted as you are.
Let us provide the legal framework for all stages of your project so that you can concentrate on what you do best - building your future.
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What the Heck Is IPD? And Who Is BIM?
IPD and BIM are in a close race for the title of Construction Buzzword of the Decade. Although both IPD (Integrated Project Delivery) and BIM (Building Information Management, the creation of a 3-D - sometimes 4-D - model of the project) were conceived well before 2010, only in this decade have they appeared with any frequency in common types of commercial construction.
Of the two, BIM is by far more established at this point. Preparation of a computerized 3-D model of a project is now very nearly a standard procedure in larger commercial jobs. IPD, on the other hand, is still seeking its identity, and is found in many permutations. AIA, for example, has issued two series of forms providing for completely different contractual approaches, both labeled as IPD - and many IPD projects choose "neither of the above" and develop their own customized contract forms.
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Ohio's Fugitive Dust Regulations: Ensuring Air Quality Preservation During the Construction Process
The construction process can implicate numerous environmental regulations, from stormwater management and water quality preservation, to erosion and sedimentation controls. One often overlooked environmental regulation that is frequently impacted by the construction process is Ohio's regulation of fugitive dust emissions. These regulations are designed to preserve air quality in Ohio's major urban areas by limiting the release of particulate matter into the air at construction sites, and they require the use of reasonably available control measures.
What exactly is "fugitive dust?" Ohio's regulations define it as "particulate matter which is emitted from any source by means other than a stack." In isolation, this definition might not provide much clarification. However, Ohio's regulations further define "particulate matter" as "any material, except water in uncombined form, that is or has been airborne, and exists as a liquid or a solid at standard conditions," and they define "stack" as "any chimney, flue, conduit or duct, including the outlet of any air pollution control equipment, which is arranged to conduct emissions to the ambient air."
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Revisiting Westfield Ins. Co. V. Custom Agri Systems, Inc.
What is most important about the Custom Agri case is what the Ohio Supreme Court did not say. It did not say that defective construction causing injury to something other than the insured contractor's work did not set forth "property damage" caused by an occurrence. From a policyholder perspective and from the perspective of those asserting defective construction claims against policyholders, it is important to determine what exactly has been injured by the defective construction, other than the contractor's work itself. For the policyholder this is especially important, not only because coverage may well be available for damages to work other than its own, but also because the insurer's duty to pay defense costs will be triggered, potentially saving the policyholder significant legal expenses.
The Supreme Court's affirmative holding that coverage was not available for defective construction itself was of limited practical significance in light of the fact that most CGL policies exclude coverage for "your work" and "your product" in any event. Nonetheless, the reasoning the court used can be too easily misunderstood to preclude coverage where the contractor's defective work injures other property. The Supreme Court held that "claims of defective construction or workmanship brought by a property owner are not claims for 'property damage' caused by an 'occurrence' under a commercial general liability policy such as the one in the present case." Unfortunately, on its face, and viewed out of context, some will argue that this language means that claims for any and all property injuries, even those resulting from defective work, are not claims for property damage caused by an occurrence - even if that defective work injured other parts of the project that were not the work of the negligent contractor.
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