Category Archives: Missouri Construction Law

Construction Terms Glossary with Missouri References

This is a basic glossary of commonly used terms in the construction world. The descriptions and definitions were not meant to be comprehensive but rather a summation of a number of fairly complex terms and concepts.

The Missouri law cited throughout this article may not be the most up-to-date information available. It is always advised to consult with an attorney or keycite the referenced case(s) or laws to confirm that the law is in fact authoritative.

This article was strictly intended to be a resource for Missouri contractors and the general public who are interested in learning more about construction law in Missouri.

1.     All-Risk Builders’ Risk Insurance

All-Risk Builders’ Risk Insurance is a type of insurance that is designed to account for a number of occurrences that cause damage to the building, usually including machinery, equipment, materials, supplies, and fixtures that are appurtenant to the structure. This usually does not include insurance coverage defective work (but oftentimes will for ensuing damages).

When referring to all-risk insurance, there’s a “general understanding…that ‘recovery under an ‘all-risk’ policy will, as a rule, be allowed for all fortuitous losses not resulting from misconduct or fraud, unless the policy contains a specific provision expressly excluding the loss from coverage.’” Missouri Commercial Inv. Co. v. Employers Mut. Cas. Co., 680 S.W.2d 397, 400 (Mo. Ct. App. 1984)(citing 13A G. Couch, Cyclopedia of Insurance Law § 48:141 at 139 (R. Anderson 2d ed. 1982). See also : Annot., 88 A.L.R.2d 1122, 1125 (1963)).

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2.     Arbitration

A form of alternative dispute resolution that is used as a vehicle for resolving disputes on a construction project or with a construction contract (though not specifically limited to construction disputes), in which an arbitrator is chosen and decides the matter. Often times the evidentiary and procedural standards are more lenient in an arbitration as compared to a case that is litigated through the court system. This also typically saves the parties money as the case is expedited and does not typically demand the heavy motion and discovery process involved in a formal court proceeding.

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3.      Architect

An architect is a person who is licensed by the Missouri Division of Professional registration (in Missouri) to practice architecture. Typically, to qualify for the licensing application, an architect must have a degree in Architecture from a school or university that is accredited by the National Architecture Accrediting Board.

The architect usually facilitates the completion of the project by performing an evaluation of the project requirements and communicating with the general contractor to ensure that the work is performed in compliance with the specifications.

The architect is also usually in the best position to communicate with the general contractor regarding such matters as the architect is often responsible for preparing the specifications and designs.

On certain projects the architect will also be involved with evaluating pay applications or working with the owner or its representative to ensure that proper payment is made.

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4.     At-Will Employment

A type of employment in which an employer can terminate the employee at any time. The employer does not have to have reason for the termination.  Equally, the employee does not have an obligation to stay with the company and can leave at any time.

In most cases, when engaged in an employment-at-will relationship, the employer can terminate the employee for virtually any reason.

However, in Missouri there are certain safeguards. The Missouri Human Rights Act, section 213.055, states: It shall be an unlawful employment practice: “For an employer, because of the race, color, religion, national origin, sex, ancestry, age or disability of any individual: (a) To fail or refuse to hire or to discharge any individual…” R.S.Mo. § 213.055.

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5.     Bid

A formal offer to a general contractor or the owner to perform certain work set forth in the contract, its terms and conditions, specifications, and any other documents incorporated therein.

On a construction project, the bid would typically require the bidder to furnish all labor, materials, and other necessaries on the project and reach substantial completion in the time prescribed in the contract documents.

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6.     Bid Bond

A bid bond is a type of bond the ensures that the contractor will perform the specified work at the bid price. Once the contractor secures the job by entering into a contract with the owner, the contractor and surety are absolved from duties to satisfy the contractor’s inability to carry out the bid. At that time, the contractor is typically required to purchase a payment and performance bond, which would be the party responsible for making payment in the event of any subsequent failure to carry out the terms and conditions of the contract.

Bid bonds are required on a number of public projects in Missouri. For example, in Missouri the statute requires 10% down or requires a bid bond “[w]henever it shall be ordered by the county commission, township board or district commissioner, as the case may be, that any road, bridge or culvert in the county be constructed, reconstructed or improved or repaired by contract, and the engineer’s estimated cost thereof exceeds the sum of five hundred dollars…”

The specific statute is R.S.Mo. § 229.050, and with respect to the aforedescribed requirements of 10% or a bid bond, states the following, in pertinent part:

“All bids shall be accompanied by a certified check equal to ten percent of the engineer’s estimate of cost, payable to the county treasurer, to the use of the county, township or road district, as the case may be, or a bidder’s bond executed by some surety company authorized to do business in this state or other good and sufficient surety in a like sum shall be given, as a guarantee on the part of the bidder that if his bid be accepted he will, within ten days after receipt of notice of such acceptance, enter into contract and bond to do the work advertised, and in case of default forfeit and pay sum of ten percent of the engineer’s estimate of cost.” R.S.Mo. § 229.050.3

In the State ex rel. Missouri State Highway Comm’n v. Hensel Phelps Const. Co., the Missouri Supreme Court case cited a California case to express its rationale in determining that a contractor can rescind a bid and be relieved from the obligation to perform on the project:

There is a difference between mere mechanical or clerical errors made in tabulating or transposing figures and errors in judgment, as, for example, underestimating the cost of labor and materials. (Emphasis added) The distinction between the two types of errors is recognized in the cases allowing rescission and in the procedures provided by the state and federal governments for relieving contractors from mistakes in bids on public work. (Citations omitted) Generally, relief is refused for error in judgment and allowed only for clerical or mathematical mistakes. (Citations omitted) Where a person is denied relief because of an error in judgment, the agreement which is enforced is the one he intended to make, whereas if he is denied relief from a clerical error, he is forced to perform an agreement he had no intention of making. State ex rel. Missouri State Highway Comm’n v. Hensel Phelps Const. Co., 634 S.W.2d 168, 171 (Mo. 1982)(citing M. F. Kemper Construction Co. v. City of Los Angeles, 37 Cal.2d 696, 235 P.2d 7 (1951).

The Court in State ex rel. Missouri State Highway Comm’n v. Hensel Phelps Const. Co. stating that “[i]f a contractor is allowed to rescind its bid, the bid bond would be cancelled. Certainly, the state may not require forfeiture of the bid bond either as a penalty or liquidated damages if the contractor has no legal obligation to fulfill its bid.” State ex rel. Missouri State Highway Comm’n v. Hensel Phelps Const. Co., 634 S.W.2d 168, 171 (Mo. 1982).

The Court went on to perform an analysis to determine whether the contractor had a right to rescind its bid. The Missouri Supreme Court ultimately deferred to the decision reached by the jury, which was in favor of the Missouri commission.  The ultimate legal holding by the Missouri Supreme Court was that the contractor could not rescind the contract based on a unilateral mistake and therefore could not avoid forfeiting the bid bond to the Commission.

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7.     Bid Documents

The bid documents is a general term used to describe the bid package prepared by a contractor in an effort to secure a construction contract.

Some of the documents that may be included in the bid documents include, but are not limited to:

  • An invitation to bid
  • Bid sheets
  • Bidder’s Questionnaire regarding experience
  • Proof of Financial Responsibility or ability to obtain adequate insurance/bonding
  • Bid instructions
  • Bid Schedule
  • Contract
  • Specifications incorporated into the contract
  • Addenda
  • Any documentation incorporated into the contract
  • Any documentation that would modify amount of time or price of project

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8.    Bid Peddling

Bid peddling is when a subcontractor, who was not the lowest bidder after the first round of bidding, offers a lower bid price to secure the award of the contract from the general contractor.

Bid peddling is when subcontractors will offer to perform the work for a lower amount contractor a lower amount than their original bid to secure the award of the contract from the general contractor. Usually the general contractor may entertain these subsequent bids to create cost savings for the general contractor, but bid peddling, in some cases, can also save the general contractor money.

Bid peddling is a practice that is not encouraged and could subject those implementing such practices to potential liability. Accordingly, it is good practice to simply move onto the next project and avoid interference or some type of tortious interference claim against you.

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9.    Bid Rigging

Bid rigging occurs when contractors conspire by submitting their bids in a manner aimed at driving up or rigging the bid to increase the amount that the lowest bidder submits and is thereby awarded. This type of behavior is unethical in that it is conspiring with other contractors to manipulate the system.

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10.  Bid Shopping

Bid Shopping is when the general contractor receives the first round of bids and takes those bids to the other bidding subcontractors to leverage lower bids from those subcontractors. In extreme circumstances, a contractor or subcontractor may try to create a bidding war between the other bidders to drive down the price by creating a competitive dynamic between them.

“Bid shopping occurs when a general contractor solicits estimates from specialty contractors to compute his lump sum bid and then, after being awarded the contract, again canvasses the specialty contractors in an effort to obtain prices lower than those previously given. This practice may deprive the specialty contractors who strove to be the first round low bidders from receiving the work after the wheeling and dealing in the second round. Moreover, the general contractor realizes savings rather than the owner, unless the general contractor lowered his initial bid anticipating that he could procure the specialty work at less than the estimated prices. Further, fierce competition in the second round may result in underbidding by the specialty contractors and consequent shoddy work as they attempt to keep costs within their bid.” Nash, Jr. and Love, Jr., Innovations in Federal Construction Contracting, 45 Geo. Wash. L. Rev. 309, 315 (1977).

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11. Boilerplate Provisions

Boilerplate provisions are what the average person might refer to as the fine print. Boilerplate provisions are those provisions which appear to be “form” provisions that are typical in most contracts.  Oftentimes boilerplate provisions are found at the end of the project.

If you’d like to learn more about boilerplate provisions, you should read this short article discussing terms that should be in every contract.

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12. Breach of Contract

“To recover for breach of contract [in Missouri], a plaintiff must plead the following elements: (1) the existence of an enforceable contract between the parties to the action; (2) mutual obligations arising under its terms; (3) the party being sued failed to perform obligations imposed by the contract; and (4) the party seeking recovery was thereby damaged.” Jackson v. Williams, Robinson, White & Rigler, P.C., 230 S.W.3d 345, 348 (Mo. Ct. App. 2007) (citing Superior Ins. Co. v. Universal Underwriters Ins. Co., 62 S.W.3d 110, 118 (Mo.App. S.D.2001)).

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13. Certificate of Inspection

In the vast majority of municipalities in St. Louis, Missouri a certificate of inspection must be obtained prior to occupying or renting a structure.

The St. Louis municipal code makes it an ordinance violation if a certificate of inspection is not obtained prior to occupying or renting:

“It shall be unlawful for any person, firm, partnership, corporation, or any other legal entity to occupy or permit the occupancy for any purpose or collect the rent of any occupied dwelling unit when a complete change of occupancy has occurred without first securing a Certificate of Inspection for said dwelling unit.”

Who is responsible for obtaining the certificate of inspection in St. Louis City?

“It is the responsibility of the owner or grantee to secure a Certificate of Inspection. It shall be the responsibility of the owner or the owner’s agent and/or the tenant to provide access to all applicable areas subject to inspections as provided in this chapter.”

St. Louis City Municipal Code – 25.56.040 – Certificate of Inspection requirements.

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14. Certificate of Occupancy

A certificate of occupancy is issued by a building inspector when the structure satisfies the necessary code requirements for the locality. The certificate of occupancy is typically required prior to allowing individuals to legally reside or utilize such structure.

In Creve Coeur, Missouri, there are a number of requirements prior to obtaining a temporary certificate of occupancy. The City of Creve Coeur as well as the fire department are required to issue the partial certificate of occupancy, requiring the following to be satisfied:

  • St. Louis County mechanical, electrical, plumbing and heath inspections or specific approval of each of these inspectors to allow temporary occupancy
  • Emergency egress lights and exit signs
  • Emergency operation of elevators
  • Egress doors on hold open devices
  • Egress doors utilizing special locking arrangements and/or access-control devices
  • Any atrium smoke-control or removal system
  • Fire protective signaling system
  • Smoke and HVAC detectors
  • Fire sprinkler system
  • Any other fire suppression system
  • All fire resistance rated fire separation assemblies
  • All components comprising of means of egress
  • All other building construction per all building permits
  • Emergency generators

The above requirements are merely the requirements necessary to qualify for a temporary in certificate of occupancy in the Creve Coeur area. Each municipality has its own requirements to qualify for such certificate.

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15. Certificate of Substantial Completion

A certificate of substantial completion is a certificate issued by the architect designating the project as substantially complete. Substantial completion can assume a wide array of meanings depending on the contractual language and the nature of the project being performed.

However, the typically accepted, case law definition of substantial completion in Missouri is the following:

“[A] building is substantially complete so as to entitle the contractor to the full contract price when it has reached the state of its construction so that it can be put to the use for which it was intended.” L.L. Lewis Const., L.L.C. v. Adrian, 142 S.W.3d 255, 260 (Mo. Ct. App. 2004).

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16. Code of Federal Regulations (CFR)

The Code of Federal Regulations often assists in fleshing out the specifics of many federal statutes as well as its own standalone rules.

The Code of Federal Regulations are divided into 50 general titles which are each broad categories. Each of these broad categories are updated once a year on a staggered basis.

A number of OSHA regulations are set forth in the Code of Federal Regulations. Additionally, the Code of Federal Regulations has a vast number of regulations governing the Housing and Urban Development as well as the construction of manufactured homes and the safety standards related thereto.

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17. Code of State Regulations (CSR)

The Missouri Code of State Regulations contain a number of regulations that articulate many Missouri statutes and establish a framework of rules to assist in the administration of various matters within the state.

One specific example of a regulation that is commonplace in many government funded construction projects is Division 30 of the Rule of the Office of Administration. Chapter 5 of said Division creates Minority Business Enterprises (MBEs) and Women Business Enterprises (WBEs). Various governmental funding programs use tax credits and other incentives to promote the use of MBEs and WBEs on publicly funded projects.

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18. Change Order

A change order is a modification to the contract. Typically a change order is written and signed by the owner and architect (if an architect is on the project).  However, in Missouri, an oral change order is typically enforceable so long as the contractor and owner have mutually agreed upon the terms.  In the event that they did not, then the contractor may still have recourse by virtue of its equitable remedies such as quantum meruit and unjust enrichment.

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19. Clean Air Act

The Clean Air Act regulates air emissions and is set forth under

42 U.S.C. §7401 et seq. “The Clean Air Act (the Act) was enacted by the United States Congress on December 17, 1963. With the Clean Air Amendments of 1970, Congress enacted a comprehensive national program that made the federal government partners with the states in the fight against air pollution, requiring the Environmental Protection Agency (the EPA) Administrator to promulgate national ambient air quality standards (NAAQS) for certain pollutants.” Friends of Agric. for Reform of Missouri Envtl. Regulations v. Zimmerman, 51 S.W.3d 64, 66 (Mo. Ct. App. 2001)(citing General Motors Corp. v. U.S., 496 U.S. 530, 532–33, 110 S.Ct. 2528, 2530, 110 L.Ed.2d 480 (1990)).

Generally, the Federal Clean Air Act preempts the Missouri air conservation commission from enacting laws that have already been covered by U.S. Congress in the Federal Clean Air Act. “The Commission continues to have rulemaking authority to regulate Missouri air quality in all ways, and in all areas, not covered by the federal Clean Air Act.” Friends of Agric. for Reform of Missouri Envtl. Regulations v. Zimmerman, 51 S.W.3d 64, 80 (Mo. Ct. App. 2001).

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20. Clean Water Act

The Clean Water Act regulates the discharge of contaminants and pollutants into stormwater and wastewater systems in the United States. The Clean Water Act is set forth under 33 U.S.C.A. §§ 1251 et seq. (1981).

Missouri has its own parallel law called the Missouri Clean Water Law, which is set forth under R.S.Mo. § 644.006 et seq.

The policy of the Missouri Clean Water Act is set forth under R.S.Mo. § 644.011 and states the following, in pertinent part:

“it is hereby declared to be the public policy of this state to conserve the waters of the state and to protect, maintain, and improve the quality thereof for public water supplies and for domestic, agricultural, industrial, recreational and other legitimate beneficial uses and for the propagation of wildlife, fish and aquatic life; to provide that no waste be discharged into any waters of the state without first receiving the necessary treatment or other corrective action to protect the legitimate beneficial uses of such waters and meet the requirements of the Federal Water Pollution Control Act…” R.S.Mo. § 644.011

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21. Commercial General Liability Insurance (CGL)

Commercial General Liability Insurance is a type of insurance that typically covers bodily injury and damage caused to property. The Missouri Court of Appeals describes the intent of Commercial General Liability Insurance policies: “to protect against the unpredictable and potentially unlimited liability that can result from accidentally causing injury to other persons or their property.” Am. States Ins. Co. v. Mathis, 974 S.W.2d 647, 649 (Mo. Ct. App. 1998)(citing Columbia Mut. Ins. Co. v. Schauf, 967 S.W.2d 74, 78 (Mo. banc 1998)).

The Court of Appeals goes further to make a distinction, indicating what commercial general liability insurance policies are not:

A commercial general liability policy is not intended to protect business owners against every risk of operating a business. Columbia Mut. Ins. Co. v. Schauf, 967 S.W.2d 74, 78 (Mo. banc 1998)).

“Business risks are those risks that are the ‘normal, frequent, or predictable consequences of doing business, and which business management can and should control and manage.’ ” Columbia Mut. Ins. Co. v. Schauf, 967 S.W.2d 74, 78 (Mo. banc 1998)(quoting James T. Hendrick & James P. Wiezel, The New Commercial General Liability Forms—An Introduction and Critique, 36 F ed’n Ins. & Corp. Couns. Q. 319, 322 (Summer 1986)).

“It is not the function of the CGL policy to guarantee the technical competence and integrity of business management. The CGL policy does not serve as a performance bond, nor does it serve as a warranty of goods or services. It does not ordinarily contemplate coverage for losses which are a normal, frequent or predictable consequence of the business operations. Nor does it contemplate ordinary business expense, or injury and damage to others which results by intent or indifference.” Hendrick & Wiezel, supra, at 322 n. 6 (quoting George H. Tinker, Comprehensive General Liability Insurance—Perspective and Overview, 25 Fed. Ins. Couns. Q. 217, 224 ((Spring 1975)). Am. States Ins. Co. v. Mathis, 974 S.W.2d 647, 649 (Mo. Ct. App. 1998).

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22. Completed Operations Liability Insurance

Completed Operations Liability insurance is a type of insurance coverage for an employer or construction company that protects said entity from liability that arises out of injury or damage that occurs after the operations are completed. Typically operations are considered “completed” under completed operations liability insurance policies once the employer or construction company completes the work in accordance with that set out in the contract.

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23. Completion Bond

In Missouri a completion bond is used interchangeably with a performance bond. A performance bond is often required on construction projects to ensure the completion of the performance of the contractors.

For example, if a subcontractor hired by the general contractor goes bankrupt, the general contractor can call on the surety who issued the performance bond to pay for the new subcontractor to come in and complete the work.

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24. Contract

A contract is typically composed of an exchange of promises between parties which is supported by legal consideration. A contract usually contains a promise, offer, and acceptance. Consideration is sometimes referred to as a bargained-for exchange.

Contracts in Missouri are enforceable whether they are oral or written.

However, it is always good practice to reduce the terms of an agreement to writing. It helps to avoid future confusion and reflects the true terms of the contract.

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25. Corporation

A corporation is an entity that is created pursuant to statute that is recognized as a legal entity. Corporations are governed by Chapter 351 of the Missouri Revised Statutes. Corporations differ from limited liability companies in that corporations (when referring to c-corporations) are double-taxed.  Corporations usually act as a shell or veil for the shareholders and officers unless certain acts are employed which would be ultra vires (acts outside the scope of the authority granted to agents of the corporation).

In Missouri, a corporation is treated as a separate legal entity from the shareholders who make up the ownership of the corporation. Thus, a corporation’s actions will not typically subject the shareholders to civil liability unless those actions are criminal or ultra vires, as noted above.

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26. Cost Proposal

A cost proposal is a document that is submitted by a contractor or subcontractor to the owner or general contractor for approval or denial of a certain scope of work on the project.  The cost proposal contains the projected costs that the subcontractor or contractor is requesting for that portion of the work.

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27. Critical Path Method (CPM)

The United States Court of Claims defined the critical path method as:

Essentially, the critical path method is an efficient way of organizing and scheduling a complex project which consists of numerous interrelated separate small projects. Each subproject is identified and classified as to the duration and precedence of the work. (E.g., one could not carpet an area until the flooring is down and the flooring cannot be completed until the underlying electrical and telephone conduits are installed.) The data is then analyzed, usually by computer, to determine the most efficient schedule for the entire project. Many subprojects may be performed at any time within a given period without any effect on the completion of the entire project. However, some items of work are given no leeway and must be performed on schedule; otherwise, the entire project will be delayed. These latter items of work are on the “critical path.” A delay, or acceleration, of work along the critical path will affect the entire project.

Haney v. United States, 676 F.2d 584, 595 (Ct. Cl. 1982).

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28. Davis-Bacon Act

The Davis-Bacon Act is a federal law that governs construction projects that are federally funded or assisted and requires the local prevailing wage to be paid to the workers on the project.

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29. Design/Build Contract

A design/build contract is a contract where the owner hires a general contractor to provide a team of workers to carry out the entirety of the project. In order to carry out these projects, the general contractors are responsible for providing engineers, architects, and other construction professionals to carry out the various tasks required on the project.

In Missouri, pursuant to the Metropolitan sewer district statute, R.S.Mo. § 249.425, a design-build contract is defined as: “a contract between a sewer district and a designbuild contractor to furnish the architecture, engineering, and related design services, and the labor, materials, and other construction services required for a specific construction project.” . R.S.Mo. § 249.425 (2011).

Pursuant to R.S.Mo. § 67.5070, wastewater or water treatment projects, a design-build contract is defined as “any contract that furnishes architecture or engineering services and construction services either directly or through subcontracts.” R.S.Mo. § 67.5070 (2016).

Under Missouri Statutes, Chapter 327, Architects, Engineers, Land Surveyors and Landscape Architects, a design-build contract is defined as “a contract between the owner, owner’s agent, tenant, or other party and a design-build contractor to furnish the architecture, engineering, and related design services, and the labor, materials, and other construction services required for a specific public or private construction project.” R.S.Mo. § 327.465 (2002).

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St. Louis Business Litigation Lawyer

Business and Commercial Litigation

Litigating a business dispute can often get messy.

In many instances businesses or commercial entities litigate over disputes or issues that often arise from the obligations or duties set forth in the contract between the parties.

These contracts often involve a lot of money, and in many cases a number of parties could be involved, especially when the transaction involves commercial entities.

We have sorted through some incredibly complex cases, and our attorneys know the procedure and the caveats of trying commercial litigation cases.

Our litigation attorneys represent a number of participants in the commercial context, including:

  • borrowers,
  • lenders,
  • suppliers,
  • vendors,
  • purchasers
  • collection agencies,
  • other law firms,
  • manufacturers,
  • limited liability companies,
  • distributors,
  • corporations
  • other commercial entities.

Success in Litigation Comes from Preparation

So how do our attorneys obtain a successful outcome for our clients?

While the outcome of a case can never be guaranteed, we understand the importance of preparing for trial and the advantages of using every tool at our disposal.

Long before the jury is called in, lawyers are battling intensely in the trenches.  This includes discovery strategy, motion work, and any other litigation tactics you can implement into the case.

The attorney who prepares the most and dominates the discovery and motion phases of the case lays the groundwork for success at trial.

Success in the motion phase of the litigation gives the attorney and his client the opportunity to better proceed with their case because they will be able to introduce evidence without a problem or even win the case summarily in some instances.

Regardless, the discovery phase and motion work allow the attorneys to create leverage for their client or require the opposing side to produce evidence or admissions that can change the posture of the case.

Discovery documents and information are used as evidence. 

The important and relevant information (and documentation) obtained during the discovery phase of the litigation is used at the trial.

Without conducting discovery, the parties may be left with some unwanted surprises at trial.  For that reason, it is important to leave no stone unturned by thoroughly propounding discovery on the opposing party.

Motion Practice

Motions give the attorney the ability to limit the other side’s ability to present evidence or to limit the issues the opposition plans to argue.

There are thousands of types of motions that can be filed throughout the course of a case. A good attorney will learn the background and preferences of the judge to determine whether a motion is worth filing and whether that motion will be fruitful.

In circumstances where the motion will merely annoy the judge or will not accomplish any real objective, the attorney is best advised to refrain from preparing and filing such a motion—for several reasons, it saves the client money, and the attorney does not go into the courtroom to argue a losing motion.

Some lawyers have the philosophy that if you lose one motion, you are now associated as a loser in the eyes of the judge.

Those same attorneys believe you should only proceed with a motion if you believe there is a high probability for success. Otherwise, you are setting yourself up for failure in several other aspects of your case.

Conclusion

There are obvious advantages that accompany a knowledgeable and well-prepared attorney. As discussed above, adequate preparation and an aggressive, thought-out pre-trial strategy can be critical to the client’s success.

Our attorneys know how to prepare, and we’ll be intimately familiar with the facts and legal issues surrounding your case, and we’ll employ vigorous litigation techniques to defend the rights of your business.

If you have a dispute that arises out of a commercial transaction, and you need legal assistance, our attorneys are more than happy to advise or litigate, whatever the situation necessitates.

Please contact us today to discuss how to proceed.

Missouri Mechanic’s Liens: Determining the Last Day Work was Performed

A mechanic’s lien must be filed within the time prescribed by statute, or it will not be valid.

So, how long does a contractor performing work in Missouri have to file a mechanic’s lien?

R.S.Mo. § 429.080 governs the time in which a mechanic lien must be filed and states, in pertinent part, that it must be filed: “[w]ithin six months after the indebtedness shall have accrued …” R.S.Mo. § 429.080 (2014) (emphasis added).

Thus, the next logical question is, when does the indebtedness accrue?

“The date the ‘indebtedness has accrue[s’] is the last day work was performed…When a job is finished and indebtedness has accrued is a question of fact.” Midwest Floor Co. v. Miceli Dev. Co., 304 S.W.3d at 247.

When is Work Lienable?

It is important to recognize the rigidity of the deadline as a contractor could be precluded from filing a mechanic’s lien if it is not timely filed.  The right and power to file a mechanic’s lien is created by statute, and thus the “lien claimant must substantially comply with statutory requirements.Midwest Floor Co. v. Miceli Dev. Co., 304 S.W.3d 243, 246 (Mo. Ct. App. 2009.

Accordingly, a contractor should know exactly what Missouri uses as the last day that work is performed. “If labor is performed after it is accepted as substantially complete under the contract, the work will not be lienable. See S & R, 610 S.W.2d at 694 (holding that if labor is done after the owner accepts the work as substantially complete under the contract, the work will not be lienable).” Brown v. Davis, 249 S.W. 696, 698 (Mo.App.St.L.1923).

“A subcontractor cannot, after the termination of an account, extend the mechanic’s lien filing time by rectifying some fault of his in performing the contract.” S & R Builders & Suppliers, Inc. v. Marler, 610 S.W.2d 690, 693 (Mo. Ct. App. 1980).

Last Day Work was Performed Case Summaries

The following is directly quoted from Manning Const. Co. v. MCI Partners, LLC, 419 S.W.3d 134, 139 (Mo. Ct. App. 2013) regarding that last day work is performed and is organized to facilitate legibility:

  • See, e.g., United Petroleum, 218 S.W.3d at 482 (“work performed by a subcontractor that is not intended to simply extend the mechanic’s lien account filing time but is necessary to complete the project in a workmanlike manner operates to extend the lien deadline if it is reasonably within the purview of the original contract” (emphasis added));
  • E. Birk & Son Plumbing & Heating, Inc. v. Malan Constr. Co., 548 S.W.2d 611, 616 (Mo.App.1977) (finding that later work extended lien-filing deadline where “[i]t cannot be denied that this work was essential for the completion of the project, and was not performed for the mere purpose of preserving a mechanic’s lien, but, rather, was reasonably within the purview of the original contract”);
  • Brown v. Davis, 249 S.W. 696, 697–98 (Mo.App.1923) (“It could not be said as a matter of law that the plaintiff performed the [later] work … merely for the purpose of extending the time for filing his lien …”);
  • Badger Lumber Co. v. W.F. Lyons Ice & Power Co., 174 Mo.App. 414, 160 S.W. 49, 53 (1913) (affirming trial court’s holding that later supply of materials to construction project extended deadline for lien filing as to earlier-supplied materials, where “the court, in its findings of fact, states that these items were not charged to the account by appellant for the purpose of extending the time for filing its lien, but were sold in good faith for the purpose of being used, and the same were used, in the construction of the building in question”);
  • Fire Extinguisher, 65 S.W. at 323 (noting evidence that “the [later] work done by the plaintiff … was not a mere scheme on its part to extend the period for filing the lien,” and that owner’s knowledge of, and acquiescence in, later work was “not [intended] as making a new contract for extending the period of limitations”);
  • see also School Dist. of Univ. City ex rel. H & M Mech. Corp. v. Reliance Ins. Co., 904 S.W.2d 253, 256 (Mo.App.E.D.1995) (applying mechanic’s-lien principles to suit on construction performance bond; “Where the reason for the furnishing of small additional items is only to circumvent the notice provision, the time for filing will not be extended.”).

Manning Const. Co. v. MCI Partners, LLC, 419 S.W.3d 134, 139 (Mo. Ct. App. 2013).

Can a Tenant Subject a Landlord’s Property to a Mechanic’s Lien in Missouri?

In the late 70’s and 80’s, there were a number of cases that came down addressing and analyzing a situation where tenants entered into a contract for improvements to the real property and subjected, or almost subjected (depending on how the court ruled), the landlord’s property to a mechanic’s lien.

The analysis at that time hinged greatly upon whether an agency relationship existed and whether the landlord bestowed sufficient authority upon the tenant for the tenant to be able to subject the property to a mechanic’s lien.

Several cases articulated various principles, essentially holding that such a determination required more than just a landlord-tenant relationship:

“[t]he fundamental principle is that the ‘mere relation(ship) of landlord and tenant does not in itself create an agency in the tenant within the meaning of the statutes covering mechanic’s liens.’” Paul A. Medley, Inc. v. Money Town, Inc., 581 S.W.2d 46, 49 (Mo. Ct. App. 1979)(quoting Sol Abrahams & Son Const. Co. v. Osterholm, 136 S.W.2d 86, 92 (Mo.App.1940); Ward v. Nolde, 259 Mo. 285, 168 S.W. 596, 600 (1914); McGuinn v. Federated Mines and Milling Co., 160 Mo.App. 28, 141 S.W. 467, 468 (1911)).

“A corollary principle is that the mere fact that the landlord or lessor consented to the lessee’s making of alterations for the Lessee’s convenience does not create an agency for purposes of the lien.” Paul A. Medley, Inc. v. Money Town, Inc., 581 S.W.2d at 49 (citing Ward v. Nolde, 259 Mo. 285, 168 S.W. 596, 600 (1914); Curtin-Clark Hardware Co. v. Churchill, 126 Mo.App. 462, 104 S.W. 476, 477 (1907); Winslow Bros. Co. v. McCully Stone Mason Co., 169 Mo. 236, 69 S.W. 304, 305 (1902)).

The cases point to the importance of the contractual language between the landlord and the tenant.  “For an agency to exist that would allow the tenant to encumber the interest of the landlord in the property, a right ‘must spring from (the) contract, express or implied, between the tenant and landlord.’” Paul A. Medley, Inc. v. Money Town, Inc., 581 S.W.2d at 49 (citing Powell v. Reidinger, 234 S.W. 850, 852 (Mo.App.1921)).

However, in order for a contractor to have a lien, the Court of Appeals, in the Paul A. Medley case held that the landlord must have some intent in requiring that the tenant make some alterations which amount to a “permanent and substantial benefit to the leasehold.” Id.

“In Messina,…the court summarized certain principles that have developed in determining whether a lessee is the agent of the lessor so as to impress the lessor’s interest with a lien. Those principles are as follows:

(a) mere relationship of lessor lessee does not create agency;

(b) at the time of the execution of the lease the lessee must be obligated to make the changes or improvements;

(c) the improvements must be of substantial and permanent benefit to the leasehold;

(d) mere consent by lessor allowing change or improvements is insufficient; and

(e) in ascertaining the requisite intent, both the lease instrument and the whole of the circumstances may be considered.” Bates v. McKay, 724 S.W.2d 565, 571 (Mo. Ct. App. 1986)(citing Messina Brothers Construction Co. v. Williford,630 S.W.2d 201, 210 (Mo.App.1982)).

“In determining whether the improvements were of permanent and substantial benefit to the leasehold, it is appropriate to consider the improvement in question in relation to the size of the building, whether the improvements substantially altered the character of the premises, and the value to the lessor.” Bates v. McKay, 724 S.W.2d 565, 572 (Mo. Ct. App. 1986)

(citing Paul A. Medley, Inc. v. Money Town, Inc., 581 S.W.2d 46, 49 (Mo.App.1979)).

These factors are important because they weigh the interests of the general contractor and the owner of the property in an attempt to arrive at the most equitable outcome. The underlying principle is that Missouri courts seek to determine whether the burden of payment (or loss of payment) should fall on the owner or general contractor in an effort to reduce or prevent any unjust enrichment to the parties involved.

Conclusion Regarding Tenant’s Ability to Subject a Landlord’s Property to a Mechanic’s Lien in Missouri

The answer to whether a tenant can subject a landlord’s property to a mechanic’s lien is very fact intensive.  As explained above, there are a number of factors that are weighed before a court will make a determination regarding whether the tenant was deemed an agent for purposes of subjecting the landlord’s property to a valid mechanic’s lien. If you find yourself in a similar situation involving the filing or necessary removal of a mechanic’s lien, please contact one of our experienced attorneys to advise you of your rights.

Elements of the Missouri Merchandising Practices Act

Elements of the Missouri Merchandising Practices Act

Definitions of Unlawful Acts under the Missouri Merchandising Practices Act

Definitions of Unlawful Acts under the Missouri Merchandising Practices Act

Unlawful Act or Practice

Definition

Authority

Deception

“Deception is any method, act, use, practice, advertisement or solicitation that has the tendency or capacity to mislead, deceive or cheat, or that tends to create a false impression.–Reliance, actual deception, knowledge of deception, intent to mislead or deceive, or any other culpable mental state such as recklessness or negligence, are not elements of deception” 15 CSR 60-9.020

Fraud

“It is a misrepresentation for any person in connection with the advertisement or sale of merchandise to make any fraudulent assertion. — An assertion is fraudulent if the person intends his/her assertions to induce a consumer to purchase merchandise, and the person: (A) Knows or believes that the assertion is not in accord with the facts; or (B) Knows that he does not have a reasonable basis for his/her assertion” 15 CSR 60-9.100

False and Misleading Statements

“A seller shall not make a representation or statement of fact in an advertisement that is false or has the capacity to mislead prospective purchasers.” 15 CSR 60-7.020

False Pretense

“False pretense is any use of trick or deception, forgery, or false and fraudulent representation, statement, pretense, instrument or device with the intent to defraud–Reliance and injury are not elements of false pretense” 15 CSR 60-9.050

False Promise

“False promise is any statement or representation which is false or misleading as to the makerís intention or ability to perform a promise, or likelihood the promise will be performed.” 15 CSR 60-9.060

Half-Truth

“It is a misrepresentation for any person in connection with the advertisement or sale of merchandise to omit to state a material fact necessary in order to make statements made, in light of the circumstances under which they are made, not misleading.” 15 CSR 60-9.090

Misrepresentation

“A misrepresentation is an assertion that is
not in accord with the facts”
15 CSR 60-9.070; see Restatement,
Second, Contracts, section 159; Packard v. K
C One, Inc.
, 727 SW2d 435 (Mo.App.,
W.D. 1987).

Unfair Practice

“An unfair practice is any practice which—
(A) Either—1. Offends any public policy as it has been established by the Constitution, statutes or common law of this state, or by the Federal Trade Commission, or its interpretive decisions; or 2. Is unethical, oppressive or unscrupulous; and
(B) Presents a risk of, or causes, substantial
injury to consumers–Proof of deception, fraud, or misrepresentation is not required to prove unfair practices”
15 CSR 60-8.020

Concealment of Material Fact

“Concealment of a material fact is any method, act, use or practice which operates to hide or keep material facts from consumers.” 15 CSR 60-9.110 (1)

Suppression of Material Fact

“Suppression of a material fact is any method, act, use or practice which is likely to curtail or reduce the ability of consumers to take notice of material facts which are stated.” 15 CSR 60-9.110 (2)

Omission of Material Fact

“A seller shall not omit any material fact in an advertisement.” — “[A]ny failure by a person to disclose material facts known to him/her, or upon reasonable inquiry would be known to him/her.” 15 CSR 60-7.030; 15 CSR 60-9.110 (3)

Sources:

http://www.sos.mo.gov/cmsimages/adrules/csr/current/15csr/15c60-7.pdf

http://www.sos.mo.gov/cmsimages/adrules/csr/previous/15csr/15csr0611/15c60-8.pdf

http://www.sos.mo.gov/cmsimages/adrules/csr/current/15csr/15c60-9.pdf

Missouri Mechanic’s Lien Requirements [Infographic]

MO Mechanics Lien Requirements Infographic

TIMING

  • Must be filed within six months after the indebtedness accrues
  • Indebtedness accrues on the last day work is performed
  • “A subcontractor cannot, after the termination of an account, extend the mechanic’s lien filing time by rectifying some fault of his in performing the contract.” S & R Builders & Suppliers, Inc. v. Marler, 610 S.W.2d 690, 693 (Mo. Ct. App. 1980).

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NOTICE

1. General Contractor

NOTICE TO OWNER

FAILURE OF THIS CONTRACTOR TO PAY THOSE PERSONS SUPPLYING MATERIAL OR SERVICES TO COMPLETE THIS CONTRACT CAN RESULT IN THE FILING OF A MECHANIC’S LIEN ON THE PROPERTY WHICH IS THE SUBJECT OF THIS CONTRACT PURSUANT TO CHAPTER 429, RSMO. TO AVOID THIS RESULT YOU MAY ASK THIS CONTRACTOR FOR “LIEN WAIVERS” FROM ALL PERSONS SUPPLYING MATERIAL OR SERVICES FOR THE WORK DESCRIBED IN THIS CONTRACT. FAILURE TO SECURE LIEN WAIVERS MAY RESULT IN YOUR PAYING FOR LABOR AND MATERIAL TWICE. ~ R.S.Mo. § 429.012  

2. Subcontractor

A. Residential Owner Occupied Property of 4 Units or Less

  • Consent to Mechanic’s Lien must be in 10 point bold font signed writing, stating:

CONSENT OF OWNER

CONSENT IS HEREBY GIVEN FOR FILING OF MECHANIC’S LIENS BY ANY PERSON WHO SUPPLIES MATERIALS OR SERVICES FOR THE WORK DESCRIBED IN THIS CONTRACT ON THE PROPERTY ON WHICH IT IS LOCATED IF HE IS NOT PAID.” R.S.Mo. § 429.013.2

B. Other Real Property: 10 day Notice of Intent to File Mechanic’s Lien Statement

“Every person except the original contractor, who may wish to avail himself of the benefit of the provisions of sections 429.010to 429.340, shall give ten days’ notice before the filing of the lien, as herein required, to the owner, owners or agent, or either of them, that he holds a claim against such building or improvement, setting forth the amount and from whom the same is due.” ~ R.S.Mo. § 429.100

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MECHANIC’S LIEN STATEMENT CONTENTS

 (a) a just and true account of the demand;

-inaccuracies are unintentional and are the result of honest inadvertence, accident, or oversight, and do not result from deliberate intention or design;

-inclusion of a nonlienable item is the result of honest mistake or inadvertence without intent to defraud and if the nonlienable items can be separated from the lienable items

-no rigid definition of just and true– depends on the facts of each particular case

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General Contractors

“if [] lien statement simply states his account in a lump sum, without itemization.’ Commercial Openings, Inc. v. Mathews, 819 S.W.2d 347, 349–50 (Mo. 1991)(internal citations omitted).

Subcontractors

must  have “an itemized statement of the labor and materials furnished.’” Commercial Openings, Inc. v. Mathews, 819 S.W.2d 347, 349–50 (Mo. 1991)(internal citations omitted).

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(b) a true description of the property, or so near as to identify the same;

  • “need not be letter perfect…” Breckenridge Material Co. v. Byrnesville Const. Co., 842 S.W.2d 551, 552 (Mo. Ct. App. 1992).
  • only be sufficient to enable one familiar with the locality to identify the premises intended to be covered by the lien.” Breckenridge Material Co. v. Byrnesville Const. Co., 842 S.W.2d 551, 552 (Mo. Ct. App. 1992).

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(c) the name of the owner or contractor, or both if known to the person filing the lien; and

(d) verification by the oath of himself or some credible person for him

  • Must be Notarized ~ S.Mo. § 429.080

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EXAMPLES OF LIENABLE ITEMS

If used in improving the property:

  • lumber
  • paneling
  • sheet rock
  • tape
  • paint
  • paint brushes
  • sandpaper
  • saw blades

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LAWSUIT TO FORECLOSE MECHANIC’S LIEN

  • An action to foreclose a mechanic’s lien must be commenced within 6 months of filing the lien ~ S.Mo. § 429.170

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Construction Law Litigation

Are you involved in a dispute on a construction project? Do you need an attorney to assist you with the litigation process?

Our attorneys handle a wide array of construction disputes, and we can probably help you with your case. We have represented owners, general contractors, subcontractors, sureties, design professionals, and a variety of other participants on a construction project.

The litigation process can be quite complex. When combined with construction, it is easy to imagine how incredibly complex certain issues in construction litigation can be. Some disputes have many moving wheels, which poses a heavy task for the lawyers who have to wade through all of the facts and the law.

As part of their tasks, our lawyers participate in all phases of litigation from preventative measures such as contract negotiations and drafting to project execution and advising mid-project to post-project litigation such as collection work and bond claims.

It is imperative for limited liability companies and corporations involved in the construction industry to have a lawyer who specializes in construction litigation as Missouri courts require that construction companies, if they are incorporated, must be represented by a lawyer.

Why can an individual not represent an entity in court?
An individual, even a member or manager of the limited liability company (“LLC”) is not permitted to represent the LLC because it would constitute the unauthorized practice of law by a non-attorney.

Accordingly, construction companies that are incorporated, or held by an entity, must retain counsel in order to present a defense. If counsel is not retained, the construction company will have a default judgment taken against it and would then have to hire an attorney to file a motion to set aside the default judgment.

This is not an outcome that you want to face as a business owner because additional work means additional billing by the attorney. The most economical solution in dealing with a construction law dispute is to nip the problem in the bud by addressing it head on. That does not suggest that it should be addressed with a hard head.

Instead, the mantra should be an ounce of prevention is worth a pound of cure. Get your attorney involved from the beginning of the project, so you can avoid failing into the litigation sandpit.

7 Common Workers’ Compensation Injuries on Construction Sites

The construction industry is responsible for the largest quantity of workers compensation claims out of any other industry.

A study from 2002, which was conducted by the U.S. Department of Labor, shows that the construction industry had the most missed days of work per year compared to other industries, as a result of occupational injuries or illnesses.

Injuries in Workplace - Missed Days of WorkThe above chart is reproduced using numbers from the Bureau of Labor Statistics’ website, and shows the following missed days of work, using a sample of 10,000 full-time workers. See http://www.bls.gov/opub/ted/2004/mar/wk4/art05.htm

The statistics do not lie.  You can clearly see that the construction industry is particularly chock full of dangers that can cause injury to workers, which consequentially causes absence from work.

This is true because in the construction industry, workers are often dealing with heavy, powerful machinery.  When the stakes are high like that, the slip of a finger has the potential of causing a catastrophic accident.

If this happens, or even if it’s a minor accident, construction workers need to know their rights regarding compensation from their employers, as well as compensation rights regarding third parties that may be liable.

This website is filled with information designed to inform construction workers about their rights regarding workers’ compensation claims as well as safety tips to prevent these accidents and injuries from occurring in the first place.

This article specifically focuses on a number of common compensable injuries or accidents that occur on construction sites, their statistics, and it serves to alert the general public about the need for safety procedures and OSHA compliance in such situations.

In 2014, approximately 1 in every 5 worker fatalities in the private sector occurred in the construction context. 

OSHA specifically cautions employers about the “Fatal Four” types of accidents on construction projects:

  • Falls
  • Electrocutions
  • Struck by Object
  • Caught in/between

While these are the most fatal, there are a number of other common accidents that occur on construction sites, which will be discussed below.

1. Scaffolding Accidents

Scaffolding accidents can arise from collapsing scaffolding, objects falling from the scaffolding, or even from workers falling from heights, especially if the scaffolding is greatly elevated.

When the occupation requires the use of scaffolding at great heights, injuries can be very serious, and the aftermath can be devastating for the injured worker and his family.

If you are injured from a fall from heights, or if  you are a victim of a scaffolding collapse, you likely have recourse, and you should retain an attorney immediately to protect your rights.Scaffolding & birds

Depending on the cause of the accident, the employee may be able to seek compensation from his/her employer or from a third party who was negligent in constructing or maintaining the scaffolding.

In the event that an innocent bystander is injured in a scaffolding accident, that person has numerous options to recover for his/her loss. The statutory limitations governing Missouri Workers’ Compensation claims would not likely apply (assuming the innocent bystander’s injuries did not arise out of the course and scope of employment).

Liability may be easier to prove if OSHA violations are present (also recovery may be greater pursuant to Missouri statute).

Because the use of scaffolding poses so many dangers, OSHA regulations are also stricter.

Employers should implement safety procedures that ensure compliance with the requirements set forth by OSHA, and Employees should take care to follow the regulations.

If you think OSHA violations may be present on the work site, contact one of our attorneys to find out your rights.

2. Electrocution

On average, electrical accidents claim a minimum of 150 lives each year according to the U.S. Bureau of Labor Statistics.

The three most common causes for fatal accidents as a result of electrocution in the workplace arise from:

  1. Overhead power lines
  2. Wiring involving transformers and other electrical work
  3. Contact with electrically powered machines or tools

The statistics provided by the U.S. Bureau of Labor Statistics, which were later compiled and organized by the Electrical Safety Foundation International, show an incredibly lopsided amount of electrical injuries occurring in the construction industry over any other industry.Electrical Fatalities by Industry

The construction industry dwarves all other industries with respect to fatalities resulting from an electrical accidents or electrocution. In fact, the construction industry accounts for more than 3 times the fatalities of the closest competing industry.

Additionally, it may come as a surprise, but many of the electrical accidents that are seen on construction projects come from the use of a crane and contact with overhead powerlines.  In fact, from 1992 to 2006, nearly 1/3rd of the 323 crane deaths involved overhead power line electrocutions.

Electrical accidents and electrocution can be serious and can clearly be fatal. Any construction worker dealing with electrical components or wiring should always ensure that OSHA safety procedures are followed.

In the event that an employer does not have an OSHA-compliant procedure in place, you should educate yourself on the regulations and be sure to comply for your own safety.

Additionally, you should take any necessary measures to prevent potential harm to yourself or your co-workers by reporting these issues to management or to the Division of Labor if management has deaf ears.  Make sure to document any complaints or communications regarding any OSHA violations.

If you or a family member is injured as a result of electrocution, you should contact a workers comp attorney immediately as your right to recover may be subject to certain time restrictions.

3. Crane Accidents

From 1992 to 2006, approximately 323 construction workers were fatally injured in crane accidents.

It doesn’t take statistics, however, to know that a crane can be an exceptionally powerful piece of equipment that can cause a lot of damage.  Construction crews use it to erect enormous skyscrapers and mobilize large materials to heights that would be impossible without the crane’s assistance.

However, this great power can also breed extremely dangerous situations for individuals working on the construction project.

Because cranes are so large and unwieldy, workers sometimes have difficulty controlling its movement, and people can be severely or fatally injured in certain circumstances.

Far Away Cranes at DuskObviously, the proper safety procedure can minimize these damages, but there will inevitably be workers who suffer the consequences of a crane accident.

These injuries are particularly ripe for recovery when they occur on a worksite, as the employer usually has insurance that will take responsibility for payment of any successful workers compensation claims.

In the event, that you are faced with such a situation, contact one of our construction accident attorneys as soon as possible.

4. Back Injuries

A study conducted by the U.S. Department of Labor showed that on average over 1,000,000 workers experienced back injuries per year.

The back is composed of a number of different muscles including the Trapezius, Deltoid, Infraspinatus, Teres Major, Teres Minor, and the Rhomboid Major.  Any of these areas are susceptible to injury, but OSHA states that on average 80% of back injuries occur in the lower back.

What types of movements in the workplace can cause back injury?

There are a number of movements that can cause back injuries including any or all of the following:

  • Twisting from side to side
  • Placing objects that have any appreciable amount of weight
  • Lifting
  • Carrying heavy objects
  • Operating heavy machinery

If you strain or pull a back muscle, you could be debilitated indefinitely, depending on the severity of the injury.

As noted above, these types of injuries occur more frequently on construction projects because of the manual labor involved, heavy lifting, as well as the involvement of machinery or tools that can cause strain to the back. Looking at the numbers gathered by OSHA, we see that it is not uncommon for a worker to face this type of injury.

Back Injuries 1,000,000 Per YearIf you require serious medical work, such as back surgery or rehabilitation as a result of a workplace injury, it is especially important to immediately contact an attorney because the quality of your medical treatment may not rise to the appropriate standard if the employer is responsible for choosing the physician.

Please contact one of our worker’s compensation lawyers to learn about your rights and potential means of recovery.

5. Repetitive Stress Injury

Depending on the worker’s responsibility on the construction site, many positions in the construction industry lend to repetitive bodily motions.  These repetitive bodily motions can cause trauma to the worker, resulting in his/her injury or incapacitation.

A number of different jobs in the construction field can result in this elevated trauma which focuses the stress on a specific body part, and ultimately leads to injury.

Although the most prevalent repetitive stress injury is carpal tunnel syndrome, the construction industry is filled with injuries from repeated trauma to certain targeted or susceptible parts of the body.

St. Louis Arch at SunriseSome repetitive stress injuries arise from repeated use of heavy machinery like a jackhammer or other equipment or tools that call for continuous and/or strenuous exercise over a period of time.

One more common example is when a carpenter is required to continuously use a hammer or power tools. If the carpenter is injured, s/he most likely has a reasonable shot at succeeding in a workers comp claim. The facts of each case should be evaluated by a knowledgeable attorney before determining the validity of your workman’s comp claim. 

Repetitive stress injuries vary widely, and each specific case should be evaluated by a competent workers’ compensation attorney.

If you believe you are suffering from a repetitive stress injury, please contact one of our lawyers today.

7. Accident Involving Vehicles or Heavy Machinery

From 1992 to 2010 there were a little over 400 deaths per year on construction sites on average, which resulted from vehicle accidents and heavy machinery/equipment.

Many of these deaths were not simply the result of a car accident or heavy equipment colliding with a worker.  The machinery and vehicles fatally injured workers in a number of different ways, including collisions between two vehicles, accidents involving one vehicle, laborers getting caught “in between” or the laborer is struck by the vehicle or machinery and wounded.

Vehicle Accident (Car Turned Over)In any case, the use of vehicles and heavy machinery on a construction site can pose serious dangers. As such, it is important for employers to implement a strict safety checklist for the workers to follow.  Failure to train laborers or to implement important safety procedures can unnecessarily put the employees in harm’s way.

In fact, from 2008 to 2010, laborers suffered the most fatal accidents out of any other occupation on construction sites amounting in approximately 63 fatalities over the three year period.  During that time period, construction managers were the most protected on the construction site with a mere 5 fatalities.

Accidents involving heavy machinery are common.  However, this does not have to be the case.  After reviewing the statistics, laborers and other individuals working on construction projects should recognize the great risk that machinery and vehicles pose when working in the construction field.

Noting this danger, workers should educate themselves on the proper safety protocol and take necessary precautions to prevent injuries to themselves and their co-workers.   OSHA has a vast amount of material that directs employers and employees on the suggested actions when involved in dangerous situations on a construction site.

Men & Excavator at DuskFor those that are involved in an vehicle or machinery accident, you may have rights to compensation from your employer based on the Missouri workers’ compensation statutes. You may also have a claim against a third party for negligence or some other cause of action that would allow you recover outside the limitations of the workers’ comp statutes.

If you are the victim of an accident involving a vehicle or heavy machinery, our attorneys would like to hear your story.  We can help you protect your rights.

7. Building Collapse

There are vacant buildings all over the St. Louis area, and as St. Louis continues to grow, these buildings are demolished and replaced with new structures.

The act of reconstructing a dilapidated building, however, can be an extremely dangerous process.

Demolition of BuildingOn top of that, many construction projects are lacking the necessary safety protocol, thereby subjecting the workers to unnecessary harm.

Accordingly, when dealing with construction on an old building, construction workers have to be on high alert because the potential injuries could be catastrophic.

In addition to the danger of the building collapsing, often times the deconstruction of a building requires the use of large machinery.  As we’ve seen from a number of the statistics cited in this article, which are derived mostly from OSHA studies, the use of large machinery creates a threat of potential worker endangerment.

For that very reason, employers need to have safety procedures in place and should be complying with OSHA regulations at all times. 

For those employers that fail to do so, the consequences may be severe, as the statute allows a worker to recover the ordinary amount plus additional amounts if the employer is found to be in violation of certain laws or regulations—contact a workers comp attorney to see if your situation qualifies.

Alternatively, if you have suffered an injury from a negligent worker or due to inadequate or improper safety procedures by your employer, please contact one of our attorneys today for a free consultation.

References

http://files.esfi.org/file/Electrical-Safety-Then-and-Now.pdf

https://www.osha.gov/oshstats/commonstats.html

http://ehs.okstate.edu/training/oshaback.htm

http://www.bls.gov/opub/ted/2004/mar/wk4/art05.htm

http://www.nccco.org/docs/default-source/crane-safety-studies/crane-related-deaths-in-construction-and-recommendations-for-their-prevention.pdf?sfvrsn=0

http://www.bls.gov/iif/oshwc/osh/os/osch0054.pdf

http://www.cpwr.com/sites/default/files/publications/CB%20page%2046.pdf