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By Wendy Huber-Wichelt

 

A construction accident can leave a contractor reeling long after the dust settles.

Weeks later, the incident will bring various parties to the job site, including OSHA officials looking for regulatory violations and possibly a lawyer from the district attorney's office looking for evidence.

A contractor can be prepared for these visitors by developing an action plan beforehand that designates either a company official or an attorney to represent the company, said Ed Hayden, executive vice president of the Allied Con-struction Em-ployers Asso-ciation.

"You have an obligation to protect your employees, your injured people, and you also have an obligation to be truthful," Hayden said. "You also have an obligation to present the facts in a clear and fair manner. You have an obligation to completely collect the facts before you release any statement."

In Milwaukee County, when a work-place accident results in a death, the 911 call triggers a response from the district attorney's office, which will treat the site as a potential crime scene and send a representative, Hayden said.

When that lawyer arrives, it's best for a contractor to have its own attorney on the scene to ensure a "level playing field," said Ralph Weber, a trial attorney with the Milwaukee firm Reinhart, Boerner, VanDeuren, Norris and Rieselbach.

Secure the site

A contractor should also take care in identifying witnesses and in securing the site, to prevent equipment or material from being moved and contaminating the scene, Weber said. Securing the site and preserving evidence is essential since "the cause of the accident is often not what people first assume," he said.

OSHA requires that the site remain undisturbed until the agency completes its review, said Kim Hurtado, the past president of the Wisconsin Bar Association's construction and contract law section who soon will be appointed to the Board of Governors for the ABA's Forum on the Construction Industry.

"Obviously, you need to cooperate with law enforcement officials," Hurtado said. "But with those obligations in mind, I think it's prudent, if there's potential liability, to consult with legal counsel - preferably before the site has been too disturbed - because there may be some documentation of the aftermath of the accident that can only be preserved at that point, and you lose an opportunity to best defend yourself or your other contractors on site."

If law enforcement officials are there, a contractor should approach the situation "in a spirit of reasonable cooperation," Hurtado said. "There's two elements to that - 'cooperation' that is 'reasonable.' You don't want to make admissions against interest without consulting legal counsel to understand the legal effect of making those kinds of representations."

A 'clean record'

It's difficult to predict whether an accident will make it harder for a contractor to land more jobs. Much depends on what an investigation reveals, Hayden said.

"A number of clients or building owners want contractors who have good, clean safety records," Hayden said. "If there's an indication that they have inured people through negligence on their part, it may very well inhibit them from getting other jobs."

On the other hand, Hayden doubts that a potential employer will conclude the worst if a contractor's record shows just one accident. Most employers realize that construction is an industry in which work-site conditions change "from moment to moment," he said.

"I don't think you get ruled out from participation in future projects solely because of one accident, unless the investigation shows that you were negligent," Hayden said.

Contractors might have to acknowledge past accidents to get future work. Some pre-qualification forms ask about prior accidents, a "fair number" ask about past OSHA citations, and "a lot of them" ask about their workman's compensation rate, or the experience modification rate, which is an indication of accident history, Hay-den said.

Not that a contractor can hide from prior accidents.

"Your OSHA history is available on the Internet, anyway," Hayden said. "You can punch up a company and find out anything you want to know about their OSHA inspections."

Hard reality also awaits the contractor on insurance issues. When asked if it's harder for a company with an accident history to be insured, Paul Seitz, an account executive with R&R Insurance Services Inc. in Waukesha, went right to the bottom line.

"Insurance is a business," Seitz said. "If that accident costs a lot of money, it will be more difficult for him to obtain reasonably priced insurance."

When Seitz, who writes construction insurance exclusively, evaluates contractors, he looks at workmen's compensation loss history. That is: What were the claims, and how much did they cost? If the insurer is losing money because the claims exceed the premium, it can increase the premium but also visit job sites in an attempt to make them safer. "Insurance companies that write contractors have loss-control departments," Seitz said. "These are safety professionals that will assist the contractor in developing a safety culture," meaning a work environment and safeguards that result in fewer injuries.

While promoting workplace safety may sound like a common-sense attitude, there are still firms that don't have it, Seitz said. R&R "sees degrees of safety culture from zero to 100 percent."

Contractors who have no safety culture won't survive very long because their insurance will become prohibitively expensive, Seitz said. The contractors who thrive, almost without exception, he added, will be those who put a lot of effort into safety.

"The costs of the industry are so dependent on insurance that you have to manage it as well as anything you manage in your business, your materials cost (and) your scheduling," Seitz said. "If you take a blind attitude toward safety and you have claims, it's been proven time and time again that you'll be forced out of business because you can't be competitive.

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