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Monthly Archives: September 2012

28SEP 2012

George Truitt and Daniel Levin recently defended an architect and his firm against a claim by a homeowner relating to the design of the HVAC system in an 8,000 square foot, custom home on the Intracoastal Waterway in Miami, Florida.  The owner claimed that the system was deficiently designed so that it was not able to cool the home to a reasonable temperature, and, therefore, the home was uninhabitable.

The owner and his family refused to move in for a period of 20 months after the Certificate of Occupancy was issued, nearly as long as it took to build the home.  During that period, the owner commissioned multiple engineers and contractors to diagnose and modify the system to increase the tonnage and redistribute the air to satisfy the family’s comfort requirements.  During the same period, the owners made partial use of the home, including allowing their son to live in the home intermittently, storing collector cars in the detached garage, storing furniture in the home, and docking their 50’ cabin cruiser out back.

The Plaintiff demanded more than $400,000 dollars in damages, $300,000 of which was for loss of use measured by the alleged fair market rental value of the home during the delay period.  On cross examination, the Plaintiff’s real estate appraiser admitted that, as requested by Plaintiff’s counsel, he assumed that that use of the property during the retrospective rental period was unrestricted so that renters would have unfettered use of the property.  When asked to assume the restrictions on use of the property to which Plaintiff conceded in his case, the appraiser testified that he could not offer an opinion that there was any rental market for the property or, if there was, what adjustments should be made to account for the reduced rental value.

The court specifically denied any recovery for loss of use, noting that the Plaintiff could have proved an alternate measure of damages for his actual expenses incurred in carrying the home or could have presented evidence of adjustments to the rental value of the home based on the use restrictions.

All offers to settle the case for an amount within the policy limits were rejected by Plaintiff, including an offer made immediately before the court announced its ruling.

Congratulations to George Truitt and Dan Levin on a great result in a difficult case.

 

13SEP 2012

Often times, sexual harassment in the workplace involves a male employee making inappropriate comments or gestures to another female employee. However, a construction site is a unique working environment and workers, unfortunately, use foul language and act inappropriately towards each other, as well as bystanders passing by the construction site.  Recently, a male construction worker in an all-male crew sued his employer when his supervisor continuously referred to him in homophobic epithets and made lewd gestures, including exposing himself, on numerous occasions.  At trial, the jury awarded the male worker $200,000 in compensatory damages and $250,000 in punitive damages.

The construction company, Boh Brothers, appealed the verdict and the award was ultimately overturned.  Interestingly, the Court stated that “[w]e join the jury’s reaction to [the supervisor’s] language and abuse, but … [it is not] the business of the federal courts generally to clean up the language and conduct of construction sites”.  Equal Employment Opportunity Commission v. Boh Brothers Construction Company, 689 F.3d 458 (5th Cir. 2012).  The Court was not willing to extend the definition of sexual harassment to situations of same-sex harassment where one of the parties is not homosexual.

The words and actions of construction workers can have significant consequences on their employers. Even though the jury’s verdict was reversed in this action, Boh Brothers spent significant energy and resources defending the action for over five years.  The employee’s EEOC complaint was first filed in March of 2007, and the company did not receive a favorable result until July 2012.

Additionally, because of this case, Boh Brothers is publically linked to the outlandish actions of its supervisor.  This takes the phrase “there is no such thing as bad publicity” to its outer limits, if not beyond.  Many developers and owners are sensitive to the public relations surrounding their projects, and this type of publicity or reputation damage can possibly make the difference between the winning and losing a bid.

Although the Fifth Circuit Court of Appeals is not the governing jurisdiction in Florida, it will be interesting to see how these types of cases pan out, especially with regard to conduct on construction sites. The EEOC issued a press release following this verdict indicating that these types of cases may become more common. The EEOC stated:

“This case demonstrates the failure of this company to prevent and properly respond to a serious matter for the construction industry: male-on-male sexual harassment by a supervisor and under isolated working conditions.”

Even though this type of language and conduct on a construction site is not an uncommon occurrence, it is important for construction superintendants and project managers to control the actions of the workers. If not, construction companies may be exposed to significant legal expenses and a damaged reputation arising from a sexual harassment lawsuit, which is entirely avoidable through proper management.