_________________________________________________________________________________________

Governor Proposes Workers Compensation Reforms (Go Top)

Governor Pataki has proposed a comprehensive plan to reform New York’s Workers’ Compensation System by reducing costs for business while increasing benefits for injured workers. The Governor claims his plan would reduce Workers’ Compensation costs for businesses by more than 15 percent while increasing benefit levels for injured workers by 25 percent. Regarding savings to employers, the Governor’s plan would:

· Establish objective medical guidelines for determining the level of impairment sustained by injured workers.

· Create a tiered system with regard to the duration of benefits for permanent partial disabilities.

· Reduce the employer assessment for the Second Injury Fund.

· Prevent all workers who are incarcerated and convicted of a crime from receiving benefits.

· Adopt a schedule of maximum fees allowable for prescription medicines and durable goods.

· Allow carriers to contract with a network of providers to perform diagnostic tests, x-ray exams, MRI’s or radiological exams and require claimants to use facilities within the network.

Regarding benefits to injured workers, the Governor’s plan would:

· Phase in workers’ compensation benefit increases by 25% from the current maximum of $400 per week to $500 per week.

· Increase the maximum disability benefit awarded to workers injured off the job by 100%, from $170 to $340.

· Allow for supplemental benefits for injured workers in amounts up to two-thirds of their average weekly wage.

· Allows claimants to receive non-emergency procedures costing less than $1,000 without prior insurer authorization.

NESCA Website Receives a Facelift (Go Top)

Members Encouraged to Participate in new Subcontractor Qualification Listing

The NESCA website www.nesca.org has recently undergone a number of improvements, both functional and cosmetic, in an effort to reflect a more professional image for the association and its members. Members are encouraged to visit the website and take a look at the changes we’ve made. As always, a primary purpose of the NESCA website is to promote the products and services offered by our members and to serve as a marketing vehicle for members. It is NESCA’s goal to get our members’ names in front of general contractors and others who can provide bidding opportunities.

To help accomplish this, NESCA has developed a new service called the Subcontractor Qualification Listing (SQL) to provide general contractors immediate on-line access to business and market information about NESCA members. All members were recently sent a separate notice and SQL questionnaire. Participation in the SQL is completely voluntary. Members who complete the SQL questionnaire will have that information listed on a special page on NESCA’s website, sorted by CSI division. Once the SQL is up and running, general contractors will be notified and encouraged to visit the NESCA website when looking for subcontractors and suppliers.

NESCA Holiday Meeting & Reception

December 8, 2005 - Century House

6:00 p.m. – Cocktails Available for Three Hours

7:00 p.m. – Dinner

Toys For Tots Presentation

8:30 p.m. Political Humorist Richie Phillips

Cost - $50 – Spouses Come For Free!

PRESIDENT’S MESSAGE (Go Top)

Top

I hope by now that all members have had the chance to review and to respond to my notice of November 16^th in which I announced the development of another new NESCA service, a service we call the Subcontractor Qualification Listing (SQL). As an association representing subcontractors and suppliers, one of NESCA’s primary goals has always been to get our members names out in front of the general contractors, public agencies, developers, designers, facilities managers and others who can provide bidding and other opportunities to do business. For years, we have mailed our membership directory to these various parties, and as you know, our Directory not only contains an alphabetical listing of our members, but also a classified listing organized by CSI division. Concurrent with the recent upgrade to the NESCA website, the Board of Directors decided to take our marketing of the products and services provided by NESCA members a step further with the development of the SQL. The SQL will provide general contractors and others immediate access to business and market information about NESCA members. Participation is completely voluntary, and for those members who do choose to participate, we will list your company and the information you provide us about your company on a special page on NESCA’s website, sorted by CSI division. Once we have collected the completed questionnaires from members, we will begin to build the SQL on our website. After that, we will engage in a campaign to notify general contractors, owners and others about the SQL, and to encourage them to go to the NESCA website when looking for subcontractors and suppliers. For members who have provided us with your own website addresses, there will link from your listing in the SQL directly to your website so that interested parties can find out even more about your company. We are very excited about this new service and strongly encourage members to complete the SQL questionnaire and participate.

For the eighth year in a row, NESCA’s December 8^th membership meeting will be a special holiday version dinner meeting and reception. Instead of conducting our normal business, we’ll be getting into the holiday spirit by giving our members an opportunity to socialize with your friends and peers within the association. Our holiday meeting will feature a 3-hour open bar, fantastic hors d’oeuvres and a first-class dinner! We encourage all members to bring your spouses (or significant others) with you because they are invited to come for free! Also, please remember to bring a toy with you to the meeting for our traditional Toys for Tots campaign with the United States Marines Corps. The Marines will be represented at our meeting, and we’d sure like to be able to present them with lots of toys again this year. So mark December 8^th on your calendar and bring your spouse to this meeting!

Harold M. Hatfield, President

NESCA’s December 8^th Membership Meeting is our Annual Toys for Tots Night!

Please remember to bring an unwrapped toy with you to donate to the Marine Corps Toys for Tots Campaign.

Court Favors Contractor Concerning Ambiguity in Additional Insured Endorsement (Go Top)

On September 12, 2005, the Supreme Court of New York, Appellate Division, Second Department decided Tomco Painting & Contracting, Inc. v. Transcontinental Insurance Company. In this case, a plaintiff contractor filed an action for a judgment declaring that the defendant, a subcontractor’s insurer, was obligated to defend and indemnify the contractor pursuant to the terms of an additional insured endorsement in the policy. The blanket additional insured endorsement provided that “the Limits of Insurance applicable to the additional insured are those specified in a written contract or agreement or the Declarations of this policy, whichever is less”. In this case, the limits of insurance contained in the Declarations for the policy were $1,000,000 per occurrence and $2,000,000 in the aggregate. However, in the written “subcontract” entered into between the plaintiff and the subcontractor, there was no mention of specific limits of insurance. The subcontract provided for only “minimum” general liability limits of $500,000/1,000,000. The court held where there is ambiguity as to the existence of coverage, that must be resolved in favor of the insured and against the insurer. Under the facts of this case, the court held that the plaintiff as an additional insured is an entity enjoying the same protection as the named insured. Accordingly, the insured must afford the contractor general liability insurance coverage in the sum of $1,000,000 as provided for in the Declarations for the policy.

Terence J. Burke, NESCA Legal Counsel

Lien on Us (Go Top)

Take Advantage of NESCA’s Lien Filing Service!

Are you tired of performing your work.........and then waiting.........and waiting..........and waiting for your money?

As a member of NESCA, you can do something about it by taking advantage of NESCA’s free lien filing service! NESCA has operated the lien filing service for more than 25 years, and annually files more than 300 private mechanic’s liens and public improvement liens on behalf of members who haven’t been paid for labor and/or materials provided to construction projects in New York State.

Every NESCA member is entitled to the preparation and filing of up to three (3) liens absolutely free of charge during any given NESCA fiscal year (July 1 - June 30). This includes the cost of all filing fees, postage or personal service of the lien and administrative expense. If an individual member wishes to file more than three liens during a given fiscal year, subsequent lien filings carry a $150 administrative fee.

The NESCA lien service includes:

· Preparation of the Notice of Lien.

· Preparation of notification letters to the appropriate parties.

· Serving the Notice of Lien on the owner and the contractor.

· Filing the Notice of Lien in the appropriate County Clerk’s office or with the appropriate public officials.

· Filing an Affidavit of Service with the County Clerk’s office or with the appropriate public officials.

NESCA Members wishing to utilize the lien filing service may call the NESCA office at (518) 869-9800 and request an “Information Required to File a Lien” form. Once the form is completed, fax it back to the NESCA office and work will begin immediately to get your lien filed promptly.

New York Falls Short on Business Climate Ranking for Small Business (Go Top)

New York has one of the nation’s least hospitable environments for small businesses and entrepreneurship, a new national ranking of all 50 states shows. The study also adds to the body of research showing that high taxes and uncompetitive business climates slow population growth.

New York is ranked only 44^th on the Small Business Survival Index 2005, which was recently released by the Small Business and Entrepreneurship Council (SBEC). The 2005 index is the SBEC’s 10^th annual ranking of states’ climates for small business. The index shows that NY has the nation’s:

· 10^th-highest personal income tax rates.

· 8^th-highest capital gains tax rate.

· 13^th-highest corporate income tax rates.

· 10^th-highest state and local property taxes.

· 25^th-highest state and local sales, gross receipts and excise taxes.

· 3^rd-highest electric utility costs.

· 18^th-highest workers’ compensation premiums.

· 11^th-highest number of state and local employees per capita.

· Highest state gasoline taxes.

Question of the Month (Go Top)

Q. What is the difference between a “pay-when-paid” clause and a “pay-if-paid” clause?

A. A “pay when paid” clause merely fixes the time for payment and does not contain express language imposing a condition on the general contractor’s legal responsibility to pay. A “pay if paid” clause, on the other hand, forces the subcontractor to expressly accept the credit risk of owner default/non-payment to the contractor. While a “pay when paid” clause may cause a subcontractor to wait until the general contractor receives payment from the owner before receiving payment, the subcontractor’s legal entitlement to payment will still be preserved. A “pay when paid” clause, as interpreted by the NYS Court of Appeals, really means that the general contractor must make payment to the subcontractor after it receives payment from the owner, or, if the contractor does not receive payment from the owner, within a reasonable period of time after completion of the work by the subcontractor. A “pay if paid” clause means that receipt of payment by the contractor from the owner is a condition that must be met before payment by the contractor to the subcontractor is legally required. A “pay-if-paid” clause is the type of clause that the Court of Appeals in 1995 found to be illegal in New York.

CALENDAR OF EVENTS (Go Top)

December 1, 2005

Board of Directors Meeting

Century House, Latham, 6 pm

December 8, 2005

NESCA Holiday Meeting

Century House, Latham, 6 pm

WELCOME NEW MEMBERS (Go Top)

Accent Commercial Furniture Binghamton Precast & Supply Co

120 Railroad Avenue 18 Phelps Street

Albany, NY 12205 Binghamton, NY 13901

(518) 482-4000; Fax (518) 482-0528 (607)722-0334; Fax (607) 722-0496

Contact: Arnie Gleasman Contact: Jay Abbey

Niatrust Drywall, Inc. PDD Contracting, LLC

28 Taylor Road PO Box 384

Gansvoort, NY 12831 East Greenbush, NY 12061

(518) 580-8887; Fax (518) 581-1886 (518)434-3745; Fax (518) 833-6866

Contact: Ghislan Gange Contact: Nicholas Teliska

Tremson Corp. Wild Woman Co., Inc.

21 Branch Road PO Box 118

Brewster, NY 10509 Syosset, NY 11791

(845) 278-9383; Fax (845) 278-7567 (516)922-7740; Fax (516) 624-8821

Contact: Marilyn Temblay Contact: Jeffrey Rich

NESCA Members Invited to Learn About

Electronic Bid Opportunities (Go Top)

A number of general contractors including Jersen Construction Group, Malone & Tate Builders, U.W. Marx, Northland Associates and Granger Construction Company have recently established their own private electronic plan rooms on McGraw-Hill Construction’s Bid Management Service, an internet-based home for projects, plans and specifications. Members who are interested in doing business with these general contractors and would like to receive electronic bid invitations from these companies are invited to attend an information session sponsored by NESCA and McGraw-Hill on Friday, December 9, 2005 at the Building Industry Center. Four one-hour sessions will be held at 9 am, 10 am, 11 am and 12 noon. Members should sign up for the session they would like to attend. Representatives from each of these general contractors will be at the information sessions. NESCA members will learn about the new bidding procedures these companies are putting in place, how to register as a subcontractor to receive electronic bid invitations and access each general contractor’s private plan room, and how these general contractors their bidding processes with the McGraw-Hill Bid Management Service. All members were previously emailed or faxed a registration form for this program. If you would like to register, please complete the form and fax it back to NESCA or call the NESCA office at 518-869-9800.

Member Anniversaries (Go Top)

Corporate Benefit Planning – 20 Years Universal Custom Millwork – 10 Years

McNamee, Lochner, Titus & Williams, P.C. – 10 Years

Henderson-Johnson Co. – 5 Years J & J Sheet Metal Works – 5 Years

J & K Plumbing & Heating Co. – 5 Years Jim Waters Corp. – 5 Years

Vol. 24, No. 6

(518) 869-9800

December 2005

Wishing You Happy Holidays and a Healthy, Prosperous 2006

Terence J. Burke, NESCA Legal Counsel

Lien on Us (Go Top)