Inside
This Edition: Buffalo
News Calls For Wide-Ranging Tort Reform, President’s Message,
Assignee Has Right To Sue Surety On State Finance Law Payment
Bond, OGS Subtlely
Modifies Payment For Stored Materials, OSHA To Focus On Bad
Actors, Calendar of Events, Welcome New Members, Lien On Us
BUFFALO NEWS CALLS
FOR WIDE-RANGING TORT REFORM (Go Top)
A
comprehensive series of editorials in the Buffalo News supporting
sweeping tort reform measures has led to a resurgence in momentum for tort
reform in Albany.
In
a May 1st editorial, the newspaper recommends extensive reforms,
including: repeal of Sections 240 & 241 of the Labor Law, the so-called
“Scaffold Act”; limitation or abolition of joint and several liability,
vicarious liability and other theories based on “deep pockets”; caps on
non-economic damages; movement toward no-fault medical malpractice; movement of
suits against municipalities to the Court of Claims; and consideration of
restrictions on trial lawyer’s contingency fees.
The
series began on April 27th with an editorial entitled “A System Out
of Control.” The editorial argued that
litigiousness is an affliction that demands attention, with national tort costs
reaching a record $205 billion in 2001.
Calling the present tort system a “social train wreck”, the editorial
challenged the lawyers’ dismissive attitude toward claims that the explosive
growth of their numbers over the past 20 years and their 26-year-old right to
advertise have had no impact on American litigiousness. “The key to judging the claims and
counterclaims about the need for reforming the state’s laws governing torts
lies in this illuminating fact: Everyone but the trial lawyers admits his
role.”
The editorial added, trial
lawyers “contend that existing statutes are fine, even though those laws may
punish defendants for damage they did not cause and, in a fantastic, Orwellian
loop of contradiction, actually prohibit certain defendants in New York from
defending themselves.”
Additional editorials about
specific problems with the tort system were published from April 28th
– May 1st, including a May 29th editorial entitled “No
Defense”, which criticized Sections 240 & 241 of the Labor Law. As the editorial stated, “the law imposes
‘absolute liability’ on contractors when a worker is injured in a fall. It is the only such law remaining on the
books in the country and it is driving insurers out of the state, contractors
out of business and the costs of construction through the roof.” The current law in New York, the editorial
reasoned, prohibits contractors from mounting a defense when workers are
injured. Instead, the law forces them
to “just shut up, pay up and then, maybe, close up.”
In its closing editorial on
May 1st, the Buffalo News concluded: “The case for tort
reform is not just compelling, it is overwhelming. The system is literally lawless in several of its basic aspects,
and it demands the steadying hand of regulation.”
NESCA ANNUAL
MEETING
NESCA’s
June 12, 2003 membership meeting will be the association’s “Annual Meeting”, at
which time we will hold an election of officers to serve during the 2003-2004
fiscal year. All members are encouraged
to attend this meeting and cast your vote.
The nominating committee has recommended the following slate of officers
for member approval:
PRESIDENT VICE PRESIDENT
Jeffrey
Senft Kevin
Garrity
S&O Construction
Services, Inc. Rose & Kiernan,
Inc.
TREASURER SECRETARY
Harold Hatfield Toni Cristo
Maximum Security Products
Corp. Cristo Demolition, Inc.
Another
year is concluding for NESCA, our 32nd, and this will be my final newsletter
message as president of the association.
It’s hard to believe a year has gone by so quickly! While the last twelve months have been busy
for me, I have truly enjoyed the experience of serving an association I have
grown to respect enormously. It is
often difficult to fully appreciate the dedication, hard work and
accomplishments of those who precede you in any endeavor until you have had the
opportunity to stand in their shoes for awhile. This is just as true for an association as with our own
individual businesses. After having
served on NESCA’s Board of Directors for several years followed by four years
as an officer, I have a renewed respect for anybody who volunteers their time
and talent to organizations like NESCA.
Associations,
unlike individual businesses, require decisions to be made that represent the
common good of ALL the members of the organization. Because policy is set by our Board of Directors, decisions are
not always made as quickly as can be done by individual business, but rest
assured, they are made representing the collective interests of all our
members.
Over
the years, I believe our Board has made many wise decisions regarding NESCA’s
purpose, focus and structure that have resulted in major accomplishments for
Northeastern New York subcontractors and suppliers, and have led to NESCA
becoming the largest regional subcontractors association in the nation. This doesn’t happen by mistake. Our success can be directly traced to the
many members who have given their time and effort to NESCA for many years. Members like Burt Fisher, who along with a
handful of other subcontractors, founded NESCA 32 years ago, and is still an
active member! Or Roger Jones, who in
more than 25 years of active membership has recruited an astounding 145 new
members, including 8 this year alone!
Or Ed Lawless, who has served as one of NESCA’s representatives on the
Empire State Subcontractors Association Board of Directors for 10 years, during
which time ESSA has successfully lobbied a half dozen bills into law that
dramatically benefit all subcontractors and suppliers doing business in New
York State! These members, and dozens
more like them, have contributed in so many different ways to the success of
each of our businesses because their work has directly resulted in a better
climate for all of us to operate our businesses in.
Of
course, we need to keep up the hard work, and many of you can help us sustain
the momentum in years to come. I urge
you to be active, contributing members of NESCA. We want to hear your ideas and we need you to volunteer your
time. If you would like to become more
active, please let us know. NESCA is
always looking for interested volunteers to serve on committees, recruit new
members, and even for future service on the Board of Directors.
In
conclusion, I’d like to thank the entire membership for your continued support
of NESCA, and for making my year as president an extremely worthwhile and
gratifying experience.
ASSIGNEE HAS RIGHT TO SUE SURETY ON STATE
FINANCE LAW PAYMENT BOND (Go Top)
The
Supreme Court of New York, Appellate Division, Second Department on March 10,
2003 decided the case of Quantum Corporate Funding, Ltd., appellant v
Westway Industries, Inc., defendant, United States Fidelity and Guaranty
Company, respondent. The plaintiff
brought this action to collect on accounts receivable assigned to it by a
subcontractor. These accounts were due
from a general contractor for work and material supplied in connection with
several government projects. When the
general contractor failed to make any payments, the plaintiff sought payment
under the labor and material payment bonds.
The defendant surety refused to pay, asserting that a subcontractor’s
assignee does not have standing to seek relief under labor and material payment
bonds. According to the surety, State
Finance Law §§137 allows recovery on a payment bond only to subcontractors,
materialmen, and laborers. The Court
disagreed stating, “State Finance Law §§137 reads, in pertinent part: ‘Every person who has furnished labor or
material to the contractor or to a subcontractor….shall have the right to sue
on such payment bond’. The statute was
modeled primarily after the provisions of the Miller Act (see 40 USC §§270a et
seq.) governing payment bonds for Federal public works.” The Court concluded stating “The Supreme
Court of the United States, in construing the similarly worded Miller Act, has
held that assignees of the claims of persons furnishing labor or material come
within the protection of the statutory bond we conclude that an assignee has
standing to sue a surety on a payment bond issued pursuant to State Finance Law
§§137.”
Thank you to General Steel
Fabricators, Inc. for Sponsoring NESCA’s May 8, 2003 Membership Meeting. If Your Company Would Like to Sponsor a Future
Meeting, Please Contact the NESCA Office.
OGS SUBTLELY MODIFIES PAYMENT FOR STORED MATERIALS (Go Top)
NESCA members who have performed
work in the past for the State Office of General Services, and have applied to
OGS for payment of stored materials in connection with that work, are advised of
a recent change in practice by the agency.
OGS has modified its
instructions for completing the Affidavit for Payment of Stored Materials (Form
BDC 252) by requiring contractors to now provide the unit cost from the paid
invoice and attach the invoice to the Affidavit. Previously, OGS required contractors to provide the unit cost
from the approved detailed estimate.
The practical effect is that OGS will no longer make payment to
contractors for stored materials unless the agency has first been provided
proof (through submission of the paid invoice) that the materials have been
paid for.
OGS representatives contend that
this does not really constitute a change in policy by the agency. They point to the fact that they have always
required proof of payment for stored materials in random reviews. Further, the Affidavit has always required
the contractor to attest that he/she has clear, marketable title to the
materials being stored.
Nevertheless, NESCA members who
have received payment for stored materials in the past (even if they had not
yet been paid for) should understand that OGS will now require proof of your
payment for those materials before they will pay you.
OSHA TO FOCUS ON BAD ACTORS (Go Top)
Employers who expose their
workers to serious safety and health hazards and who continue to defy worker
safety and health regulations will be subject to the new OSHA Enhanced
Enforcement Policy. The policy will
focus on those employers who have received “high gravity” citations and in five
specific areas including: follow-up inspections; programmed inspections; public
awareness; settlements; and federal court enforcement. This initiative impacts employers who have
received OSHA citations with the highest severity of willful violations,
multiple serious violations at the highest level of severity, repeat
violations, failure to abate notices or a serious or willful violation
associated with a fatality.
June 5, 2003
Century House, Latham, 6 pm
June 9, 2003
8th Annual
NESCA/GBC Golf Outing
Wiltwyck C.C., Kingston, 11
am
June 12, 2003
Century House, Latham, 6 pm
July 24, 2003
Saratoga Race Course, 11 am
August 7, 2003
Century House, Latham, 6 pm
MEMBERS URGED TO COMPLETE SURVEY
On May 2, 2003, NESCA members were mailed a
liability insurance survey, asked to complete the survey and return it to the
NESCA office. Due to a
variety of factors, it has become increasingly difficult for subcontractors to
obtain affordable general liability insurance.
Because of restricted availability and high costs, NESCA is looking into
alternatives, such as sponsoring a group general liability program that could
provide coverage to members on a more cost effective basis. To this end, NESCA must first determine the
level of interest among members and collect the information needed to talk to
carriers. All interested members are
urged to complete this survey as soon as possible.
Bonded
Concrete, Inc.
P.O. Box 189
Watervliet, NY 12189
Phone (518) 273-5800
Fax (518) 273-6134
Contacts: Brendon Clemente, Robert Ashe
37 Saratoga Road
Glenville, NY 12302
Phone (518) 399-9999
Fax (518) 399-1182
Contact: Bob Bryar
Farrell
Brothers Plbg. & Htg., Inc.
300 Deleware Avenue
Albany, NY 12209
(518) 462-5454
Fax (518) 426-9119
Contact: Randy Rowe
Northeastern
Air Quality, Inc.
PO Box 3271
Albany, NY 12207
Phone (518)
887-5800
Fax (518) 887-5880
Contact: Bob Kelly
Eighth Annual NESCA/GBC Joint
Mid-Hudson Golf Outing
Monday, June 9, 2003 - Wiltwyck
Country Club - Kingston
$160 Per Person - Package
Includes: Greens Fees, Cart, Driving Range, Locker Room, Beverages, Lunch,
Reception, Dinner, Prizes
Registration/Lunch - 11:00
a.m. Shotgun Start - 12 Noon
Reception - 5:00 p.m. Dinner/Prizes -
6:00 p.m.
Come Join the Fun! Call the NESCA Office and Register Today!
NESCA’s Lien Filing Service Can Help You To Collect
One
of NESCA’s most important and most utilized services of membership is the association’s
free lien filing service. NESCA has
operated the lien filing service for more than 20 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 furnished to
construction projects in New York State.
NESCA
will file liens for members against projects located anywhere within New York
State - both private projects and public works projects. Every NESCA member is entitled to the
preparation and filing of up to three (3) liens free of charge during any given
NESCA fiscal year. This includes the
cost of all filing fees, service of the lien, postage and administrative
expenses.
Members
wishing to utilize this service should call NESCA at 518-869-9800 and request
an “Information Required to File a Lien” form.
Once you have completed the form, fax it back to our office and work
will begin immediately to get your lien filed.