SHAPING THE LAW

The courts have the power to damage or improve the business climate just as much and sometimes more than elected officials and executive departments and agencies. Every day, the courts are ruling on regulatory requirements, insurance coverage, and the contractual and other relationships among the many parties to a construction project. Whether their decisions have an immediate impact on day-to-day operations or just reinforce long-term trends, their decisions make a difference, and for that reason, the Construction Advocacy Fund also supports Associated General Contractors (AGC) of America effective legal advocacy.

Here are just a two examples of the significant success that AGC has achieved, and one pending case.

INSURANCE COVERAGE FOR CONSTRUCTION DEFECTS

Over a period of ten years extending into 2016, AGC turned back a concerted effort to deprive contractors of any and all of their commercial general liability (CGL) coverage for construction defects, persuading the supreme courts of Florida, Georgia, Mississippi, New Jersey, South Carolina and Texas that the standard form policies sold to AGC members across the country do provide contractors with significant coverage for such defects. A majority of the states now agree that these policies cover property damage resulting from unexpected and unintended defects in a subcontractors’ work, and that insurance carriers have to pay claims for such damage, unless the carriers can show that a specific exclusion applies.

MEDICAL MARIJUANA

In 2014, AGC participated in the first major case involving medical marijuana. The question that the case presented was whether a new state statute law making permitting employees to use marijuana for medical purposes also has the effect of rendering it unlawful for employers to maintain a zero tolerance drug policies. Siding with AGC urging, the Colorado Supreme Court held that the new law does not have that effect, and that Colorado employers still have the right to insist on a drug-free workplaces.

OSHA’s NEW SILICA STANDARD

AGC is now challenging the Occupational Safety and Health Administration’s new silica standard. AGC members have made it clear that the standard would be very disruptive of their operations and very difficult to implement. The new standard requires them to have written exposure control plans, and in many typical situations, it also requires engineering controls, work practice controls, personal protective equipment and medical surveillance. The legal problem for the agency is that it does not have the record necessary to support its extreme decision to reduce the exposure limit by 80%.