THE TROPICANA GARAGE COLLAPSE: THE INSIDER S STORY

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1 The 47 th Annual Meeting of Invited Attorneys THE TROPICANA GARAGE COLLAPSE: THE INSIDER S STORY by Timothy J. Bloh, Esquire and James J. Ross, Esquire THE TRAGIC 2003 COLLAPSE OF THE PARKING GARAGE OF THE TROPICANA HOTEL AND CASINO SPAWNED A THREE-YEAR ORDEAL OF COMPLEX LITIGATION, ENDING WITH THE LARGEST SETTLEMENT FOR A PERSONAL INJURY CASE IN U.S. HISTORY. THE STORY OF THE ACCIDENT AND ENSUING LEGAL ACTION CAN YIELD VALUABLE LESSONS FOR DESIGN PROFESSIONALS AND ATTORNEYS. THE STORY LINE It was business as usual at 7 A.M. on October 30, 2003 at the Tropicana Hotel and Casino as work resumed on the largest construction project in Atlantic City in more than a decade. The concrete trucks were lined up for a pour on the eighth floor of the 2,400 space parking garage, a key component of the $265 million project. The ten-story parking garage sat atop a four-story Retail, Dining and Entertainment Complex, nicknamed the RDE, which would ultimately house such upscale tenants as Brooks Brothers, Swarovski Crystal, and The Palm Restaurant. The 20-story hotel tower, which was connected to the parking garage and the RDE, featured 502 guest rooms which would have unobstructed views of the ocean and the bay. Overall, the project would require 70,000 to 80,000 yards of concrete to complete the two million square feet of surface space. There had been dozens of concrete pours over the previous 12 months for the hotel tower, the RDE, and the parking garage and the protocol was familiar to everyone on site. The installation of reinforcing steel on the eighth floor had been completed two days earlier and had been approved by inspectors retained by the general contractor Timothy Bloh is a partner at Fox Rothschild in Atlantic City with extensive experience handling construction and real estate litigation matters for clients throughout Pennsylvania and New Jersey, including: property owners (commercial and residential), design professionals, construction managers, contractors, and real estate professionals. He was a shareholder for a regional Philadelphia law firm, where he served as Vice Chair of its Architect and Engineering Group and Co-Chair of its Real Estate Group and Professional Liability Department. Mr. Bloh served as an Opinion clerk and Allocator clerk for the Hon. Robert N. C. Nix, Jr., Chief Justice of the Pennsylvania Supreme Court. He received his J.D. from University of Maryland School of Law and his B.S. from the University of Scranton. James J. Ross is of counsel with the law firm Carroll McNulty & Kull, practicing in the areas of Alternative Dispute Resolution, Construction and Surety, and Insurance Defense. Jim has extensive experience in litigation, arbitration, and mediation for construction, surety, and commercial disputes. Jim has served as lead counsel in multi-party construction and surety litigation in state and federal courts and in arbitration. He is admitted to the state bar of New Jersey. Mr. Ross graduated from Brown University and the Seton Hall University School of Law. 111

2 (the GC ). 1 Rain the day before had delayed concrete placement for 24 hours, but the weather on this Wednesday morning was perfect: 45 degrees and not a cloud in the sky. The building inspector for Atlantic City had been notified to be on site at 6 A.M. for a final inspection of the steel installation on the eighth floor. Without his approval, there would be no concrete pour and the trucks would be sent back to the plant. The concrete trucks were lined up on Iowa Avenue ready to complete the task at hand. Meanwhile, Bob and Jack D Angelo, brothers by both blood and by union affiliation, had started work below on the fifth floor of the garage, removing the bracing or shoring which supported the concrete during the curing process. The building inspector completed his inspection before 7 A.M., gave his approval and the first batch of concrete was immediately dispatched. At about 10:30 that morning, shortly after the morning coffee break, the D Angelos decided that they needed a ladder to continue with the shoring removal. Jack volunteered to get it and proceeded to walk about 50 feet toward the center of the floor where the ladders were chained to one of the concrete columns. As he retrieved a ladder and turned toward his brother, he heard a sickening cracking sound which became a thunderous roar, and watched in horror as his brother disappeared in an avalanche of concrete and steel debris. Within seconds, levels four through eight of the garage ceased to exist from column line four to column line one at the western most end of the structure, an expanse of over 100 feet later called the football field. In addition to Bob D Angelo, three other construction workers were killed that morning in the Tropicana garage collapse and 20 more suffered serious injuries. The ensuing litigation, which included the taking of more than 250 depositions, the production of 1.5 million pages of documents, more than 50,000 pages of deposition transcripts, and highly technical expert reports by the nation s leading structural engineering firms culminated in April, 2007 with the largest monetary settlement of a construction personal injury case in American history. The owner s claims for business interruption, loss of revenue, and the cost of reconstructing the collapsed portion of the garage were also included in the settlement. The three and a half year saga from accident to settlement is the subject of this presentation. The Events After the Collapse and Before the Commencement of Litigation It was impressive to witness how quickly parties mobilized for a catastrophic incident such as this. The collapse occurred at approximately 10:30 A.M. and before noon several plaintiff lawyers were on site, and expert witnesses had been contacted by both potential defendants and plaintiffs. In a few cases, experts were on site before OSHA representatives arrived. The lawyers and experts were there not only to commence their investigation; they were there to begin the spin that was to frame much of the coverage on the next news cycle. The collapse was national news and articles in The New York Times and The Washington Post included detailed graphics of the project configuration and included conjecture and speculation by anyone remotely connected with the project about the cause of the collapse. [see Attachment A] 112 THE TROPICANA GARAGE COLLAPSE: THE INSIDER S STORY

3 Those that represent or insure design professionals may take comfort that OSHA has no jurisdiction over design related issues and, therefore, any OSHA investigation may not affect your client or insured. However, in this case, OSHA was provided with a great deal of information including structural calculations and mock-up representations from one of the parties in an attempt to clear themselves from any responsibility. Unfortunately, much of the information was inaccurate, biased, and, at the very least, incomplete, but the story line was framed. OSHA was spun just like the media by parties seeking to deflect attention away from their own possible involvement in the collapse. The first lawsuit was not filed for four months, but during that time the media and the average person on the street, including potential jurors, had developed a perception of the cause of the collapse. The gag order entered by the first judge handling the case helped quell some of the chatter and speculation, but many of defendants felt that irreparable damage had been done to their positions and reputations. The issue of tainted jury never was reached as a byproduct of the settlement. KEY PARTIES As is the case with most longer projects, the owner obtained pre-design estimates of construction costs for the project in order to provide the designers with a scope and target budget. But as is the case with most larger projects, the budget proved to be wildly inaccurate after the initial design was completed. The owner obtained these pre-design estimates from a reputable general contractor that had performed other work on a previous Tropicana facility in Atlantic City, which was delivered on time and relatively on budget. The GC based his estimate on some pricing estimates from other reputable contractors and suppliers in the area. One of those was a concrete contractor (the concrete sub ) that had constructed several parking garage structures in Atlantic City and surrounding areas. The concrete sub would become the most critical subcontractor on the project since the schedule and cost would be driven by that trade. The concrete contractor proposed a filigree system for the parking structure and provided cost estimates using that system, as opposed to poured-in-place concrete. This issue became a much larger concern as the project progressed. The supplier of the filigree (the filigree manufacturer ) had a staff of engineers that provided the pre-engineering for all of its product. They were a well known supplier of proprietary filigree concrete slabs. As the litigation progressed, an important issue developed as to whether they were to be considered a special engineer, as that term is used in the applicable New Jersey code sections. The owner also hired an employee familiar with the construction industry to oversee the project. This employee was given the title, Vice President of Construction and Design. This lofty title seemed to have little relation to the activities of this individual s job responsibilities but it was significant enough for the plaintiffs counsel to mention it at every opportunity. As is the case with all casino projects and larger public projects throughout New Jersey, there are many levels of review and inspection including local and state agencies such as the New Jersey Division of Consumer Affairs (the DCA ). THE 47 th ANNUAL MEETING OF INVITED ATTORNEYS 113

4 The submission of the plans to the DCA for review as well as the local inspector s concrete inspections played an integral part in the ultimate tragedy. In addition to the public inspection agencies, the GC retained an independent private inspection service company for on-site reviews and inspections (the steel inspector ). However, the scope of services and the identity of the party to whom they had reporting responsibilities became an issue during the course of the construction and became a critical issue as discovery progressed in the ensuing litigation. The two steel reinforcement detailers (the rebar consultants ) retained by the concrete sub also played a critical role in the connections of the concrete floor slabs to the vertical elements in the parking garage. One detailer only provided shop drawings for loose steel bars and the other provided only steel welded wire fabric ( WWF or mesh ) shop drawings. As part of the value engineering process, much of the steel was converted from loose steel into mesh. The concrete sub provided many reasons for this conversion, including the fact that it is safer to handle mesh than loose rebar. However, it was believed that the motivating factor for making this change was the cost savings of fabricating mesh sheets off-site and bringing them on-site rather than having ironworkers place loose steel on site. Interestingly, during litigation it became apparent how little attention was paid to the detailer s responsibility for their product. Neither detailer carried any insurance coverage. While one had training as an engineer, the other had only CADD training and literally worked out of his basement. The concrete sub hired a steel rebar installer (the rebar installer ). However, during the course of the construction, the concrete sub took over large portions of that scope of work with its own crew of ironworkers. As one would expect, the steel floor-to-slab connection was a primary area of focus in the litigation and the division of the labor between the concrete sub and the rebar installer was intensely scrutinized. THE DESIGN AND THE CONTRACTS By April, 2002, the architect had virtually completed the final design for the Tropicana expansion project which consisted of a 20-floor hotel tower, a ten level parking garage and a four-story Retail, Dining and Entertainment Complex located under the parking garage (the project ). Up until that time, the architect had been working for the project owner, based upon a letter agreement. The architect had also entered into written agreements with a number of consultants including the structural engineer and the local architect. (The architect, the local architect, and the structural engineer will be referred to together as the design group ). On April 22, 2002, Tropicana and the architect entered into a formal written Agreement for Architectural Services wherein the architect agreed to perform specific professional services for the schematic design, design development, construction document, and construction phases of the project. The effective date of the agreement was designated to be November 10, 2000, the date that the architect had commenced its work on the design development phase. As of April 22, Tropicana had paid the architect $9.2 million of its $10.8 million fixed fee. 114 THE TROPICANA GARAGE COLLAPSE: THE INSIDER S STORY

5 As discovery progressed in the case, the claims against the architect became more focused and the following provisions of the Agreement for Architectural Services came under close scrutiny with varying interpretations by counsel. * * * * * * * * Architect s Professional Services The (Architect s) Services shall include the following professional services (among others): Structural Engineering Architecture including Local Architect Architect s Consultants The Architect shall be fully responsible for the timely and proper performance of Services by its Consultants and their respective sub-consultants of any tier to the same extent as if all such Services were performed by the Architect s personnel. All costs of Services performed by such Consultants and subconsultants are included in the Fixed Fee and shall be paid by the Architect Limitations of Architect s Responsibilities Notwithstanding anything in this Agreement which may indicate otherwise, Architect shall not be deemed to have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work being performed at the Site, unless due to Architect s negligence or intentional acts. The Architect shall not have control over or charge of acts or omissions of the Contractor, its subcontractors, vendors or their respective agents or employees, or of any other persons performing potions often Work on behalf of the Contractor. Notwithstanding anything contained hereinabove to the contrary, the Architect shall make periodic inspections in accordance with the Agreement and shall endeavor to guard against the Contractor s failure to carry out he Work in accordance with the Construction Contract and Contract Documents. Except as provided herein, the Architect shall not be responsible for the Contractor s schedules or the Contractor s failure to carry out the Work in accordance with the Construction Contract. The Architect shall not be responsible for the Contractor s Schedule or the Contractor s failure to carry out the work in accordance with the Contract Documents unless due to the Architect s negligence or intentional acts Construction Phase Architect shall provide administration of the Construction Contract to the extent set forth in this Agreement. In the event of a conflict between this Agreement and the construction Contract, the provisions of this Agreement shall control Promptly upon Owner s notice to the Contractor to proceed pursuant to the Construction Contract, Architect shall commence performance of the following activities: (a) Submit written reports to Owner every two (2) weeks recording Architect s observations at the construction site as to the progress and quality of the Work. In particular, the Architect shall promptly inform Owner in writing of any deficiencies in the Work and/or deviations from the THE 47 th ANNUAL MEETING OF INVITED ATTORNEYS 115

6 requirements of the Construction Contract which come to the Architect s attention Architects will visit the site at intervals appropriate to the stage of construction to become familiar with the progress and quality of the Work indicating that the Work when completed will be in accordance with the Contract Documents and to determine if the Work is being performed in accordance with the Contract Documents. The Architect and Contractor shall determine the frequency of such inspections based on the stage of construction and its duties hereunder provided, however, that Architect acknowledges that at certain times of the Project continuous full time on site personnel will be required, including, but not limited to, from ten (10) months into the Project until Project close out ( Full Time Supervision Period ). During the Full Time Supervision Period, the Architect will be required to provide continuous on-site representation to check quality or quantity of the Work. Based on the Architect s visits to the site, the Architect shall keep the Owner informed of the progress and quality of the Work and shall guard the Owner against defects and deficiencies in the Work and assure the Owner of the quality of workmanship and faithful adherence of Contractor to Contract Documents and established schedule. [emphasis added] * * * * * * * * * The Architectural Services Agreement was assigned to the GC immediately upon its execution in April, The GC had previously entered into a contract with the owner in December, 2001 to provide all services required to complete the design and construction of the project (the design-build contract ). Included in the design-build contract was the GC s agreement to assume the Agreement for Architectural Services. The GC further agreed that it would not regard the plans and specifications prepared by the architect and its consultants as final but rather, it would take whatever measures it deemed appropriate or necessary in its sole and absolute discretion to develop those plans and specifications into finals. Those final plans and specifications would then be utilized to fulfill the GC s obligations under the design-build agreement. In order to fulfill its contractual obligations, the GC retained and had the responsibility to coordinate 70 to 80 subcontractors, suppliers, and vendors to construct the project. As discussed previously, included in that group was the steel inspector, an independent, commercial inspection company, which, among other things, undertook the responsibility for inspecting and approving the steel rebar installation prior to the placement of the concrete. Additionally, the GC retained the concrete sub, who was responsible for concrete, steel rebar placement, and the shoring for the concrete. The concrete sub retained a number of sub-subcontractors and suppliers to complete its scope of work, including the filigree manufacturer, who provided the tubs for the concrete decks in the garage into which steel rebar would be placed and concrete would be poured, the rebar consultants which designed the steel rebar which would be placed in the filigree tubs, and the rebar installer. The design-build method of project delivery, which was employed on the Tropicana project, is not a novel concept in New Jersey. However, the designbuild contractual configuration presents some unique and potentially 116 THE TROPICANA GARAGE COLLAPSE: THE INSIDER S STORY

7 conflicting obligations and allegiances for the project architect. This is especially true in the case of the design and construction of the Tropicana expansion project, where the owner retained the architect throughout the design phases of the project, paid the architect 90% of its fixed fee, and then assigned the agreement for architectural services to the GC when the design was virtually complete, just as the contract administration phase of the architect s scope of work was commencing. The following requirements of the New Jersey Administrative Code were critical to the design groups responsibilities on the project: An architect may perform architectural services for a contractor in connection with a design/build contract but the owner must be notified of the identity of the architect and the owner may communicate with the architect at any time concerning relevant design issues. N.J.A.C. 13:27-7A.2. The architect shall, at all times, provide architectural services as an independent contractor pursuant to N.J.S.A. 45:3-17 and 45:3-18 and not as an employee of the contractor. N.J.A.C. 13:27-7A.3(1) [emphasis added]. The architect shall, at all times, exercise independent, professional judgment consistent with established standards of architectural practice, the rules of professional conduct set forth in N.J.A.C. 13:27-5, and such other statutory and regulatory requirements as may be applicable. N.J.A.C. 13:27-7A.3(2). If the architect is requested or directed to make fundamental changes to the design, he must immediately give written notice to the owner and the contractor. The architect shall not proceed unless the owner or developer and the contractor agree to the changes. N.J.A.C. 13:27-7A.5. THE CLAIMS The Claims in General All of the lawsuits filed on behalf of the deceased and injured workers (the plaintiffs ) were consolidated into one lawsuit in the Superior Court of New Jersey, Law Division, Atlantic County, captioned In Re: Tropicana Parking Garage Collapse Litigation, bearing Docket Number ATL-L (the litigation ). Ultimately, the Honorable William Nugent, J.S.C. was assigned as the trial Judge for the case and in that capacity he assumed the responsibility for case management. As might be expected given the horrific nature of the personal injuries and deaths as well as the magnitude of the property damage caused by the collapse, a variety of claims resulted from a large number of the parties. The most public of those claims became the personal injury claims of the construction workers that were working on the day of the collapse, which ranged from death claims to non-injury, post-traumatic stress disorder claims. 2 The personal injury claims were by far the most difficult for defendants to evaluate because the nature of the collapse itself created what became known as the horror factor, an escalator of the value of a personal injury claim on this project as opposed to THE 47 th ANNUAL MEETING OF INVITED ATTORNEYS 117

8 118 THE TROPICANA GARAGE COLLAPSE: THE INSIDER S STORY another project. For instance, if an ironworker fell off a scaffolding and suffered injuries on any other project his injury might be worth X dollars, but because of the catastrophic nature of this collapse, the same injury might be worth three times X dollars in this litigation. Another interesting aspect of the personal injury claims was the number of plaintiffs attorneys involved and the way they worked together throughout discovery and settlement. There were more than 40 individual personal injury claims, but a large number of the plaintiffs claims were handled by two law firms. As would be expected in most jurisdictions, there are only a few plaintiff personal injury lawyers that have the capability, experience, and expertise to properly represent significant construction related injuries and claims such as these. In fact, it was reported that one of the plaintiffs interviewed the late Johnny Cochran to handle his case before selecting a prominent local personal injury lawyer. The concentration of plaintiffs with two law firms, that ultimately became co-counsel on all plaintiffs claims made discovery and negotiation of settlements much more orderly. In addition to the personal injury claims, the owner made property damage and business interruption claims. As one can imagine, the business interruption claim of a casino hotel was enormous. Immediately after the collapse, the road adjacent to the existing hotel was closed for a number of weeks. If it were not for the Boardwalk of Atlantic City, the access to this property would have essentially been eliminated. An adjacent restaurant also made a claim for lost revenues associated with the road closure at the collapse site. This business was primarily a local pub with package goods service and thrived while the construction was ongoing at the Tropicana. The fact that after the collapse hundreds of construction workers were no longer stopping in for lunch or package goods allegedly affected the bottom line significantly. Much of the owner s losses were covered by insurance that ultimately resulted in a subrogation claim by the property carrier. As a result of the waiver of subrogation clauses in the contracts and the Owner Controlled Insurance Program ( OCIP ) (which will be discussed separately), those claims were dismissed during the litigation. Any and all of the owner s claims which were not dismissed during litigation became part of the ultimate settlement. The GC and its subcontractors also had interruption claims relating to their work, because the work on the project was shut down for more than three months. At the time of the collapse, work was progressing on the eighth floor of the ten-story garage and the RDE underneath was ready for interior work. The hotel tower was near completion with the interior work ongoing. Some of these claims were actually negotiated and resolved prior to the project restart, as an inducement for the contractors to return to work. The releases that were entered between the owner and those contractors became a larger issue in the personal injury litigation as the cross-claims became more defined and the question of whether those cross-claims were actually released came into dispute. Some of the contractors did not return to the project and had standard collection type cases against the owner and contractors with which they had contracted. Those claims were separated from the collapse litigation because the cause of the collapse had no bearing on the amounts paid to those contractors.

9 In fact, the only claim on the project that ever went to trial involved a claim by the steel subcontractor against the concrete sub and others for work performed prior to the collapse. That case, like the main collapse litigation, was resolved amicably with a confidentiality clause. As would be expected, there were the inevitable coverage claims between the insurance carriers and the insureds and between levels of coverage. The coverage claims were not technically part of the collapse litigation, but the issues raised in the early stages of the litigation impeded settlement. Claims Against the Design Group With respect to the design group, the plaintiffs alleged that the architect was hired as an architect and entered into a contractual relationship with (owner and the GC) to design and/or evaluate the Tropicana Garage so that it would be safe for those constructing the Garage. Plaintiffs further alleged that the architect deviated from the standard of care that should have been utilized as professionals in the fields of architecture relative to the design and supervision of the construction of said Garage. Specifically, the architectural design did not conform to OSHA standards and did not cause the Garage to be constructionally sound, resulting in the collapse of the Tropicana Garage. The plaintiffs claims against the local architect were similar to the claims made against the architect. Similarly, with respect to the structural engineer, the plaintiffs alleged that the engineering design did not conform to OSHA standards and did not cause the Garage to be constructionally sound, resulting in the collapse of the Tropicana Garage and that the structural engineer deviated from standard of care for professional engineers and professional engineering firms. In addition to the claims asserted by the plaintiffs, other defendants, such as Tropicana, the GC, the concrete sub and the steel inspector asserted cross claims against the architect. Those negligence claims were generally based upon New Jersey s Joint Tortfeasors Contribution Act and Comparative Negligence Act. As required by New Jersey statute, (N.J.S.A. 2A: 53A-27) parties with claims against the design group filed Affidavits of Merit, which is a precondition to maintaining a negligence claim against architects, engineers, or other professionals (including doctors, lawyers, and accountants). Generally, those affidavits contained a certification from either an architect or engineer representing that they have had reviewed certain documentation and, based upon that review, they affirmed that there exists a reasonable probability that the care, skill and knowledge exercised and exhibited in the work performed by [the design group], fell outside the acceptable professional standards. The Affidavit of Merit requirement serves as a gate-keeping function so that only those malpractice cases that meet the threshold of merit proceed through the litigation stream. Hubbard v. Reed, 331 N.J. Super. 283 (App. Div. 2000). In other words, its purpose is to identify meritless lawsuits at the early stage of the litigation. Davies v. Imbesi, 328 N.J. Super. 372 (App. Div. 2000). The strict time requirements set forth in the statute must be met, or a dismissal of the complaint with prejudice will occur (unless, in very limited circumstances, a court determines that a party substantially complied with the statute). THE 47 th ANNUAL MEETING OF INVITED ATTORNEYS 119

10 Regardless of whether the claim against the design professional is based upon a breach of contract or negligence or is filed as a third party claim for indemnification or contribution, an affidavit of merit will be required if the claim s underlying factual allegations require proof of a deviation from the professional standard of care applicable to the profession. See Couri v. Gardner, 173 N.J. 328 (2002) (where the Court held that the nature of the plaintiff s breach of contract claim against a psychiatrist did not require an affidavit of merit); see also Nagim v. New Jersey Transit, 369 N.J. Super. 103 (Law Div. 2003) (holding that third party claim for indemnification against Engineer was subject to Affidavit of Merit Act); but see Martin v. Perini Corp., 37 F. Supp. 2d 362 (D.N.J. 1999) (If a claim based on willful or wanton conduct is alleged i.e., having knowledge of a dangerous condition during construction and allowing the project to continue such a claim would not require an affidavit). If it is unclear whether an affidavit is required, the party bringing the claim should err on the side of caution and file it. An affidavit is not an expert report, which is usually longer and more comprehensive, and served later in the lawsuit. Rather, an affidavit of merit is usually a short, certified statement made by the expert that he reviewed the complaint and other relevant documents germane to the claim, and that a claim against that licensed professional probably exists. Generally, the parties making claims against the architect took the position that pursuant to Articles and of the Architectural Services Agreement, the architect s scope of services included the structural engineering for the design of column line one, which was allegedly under designed and failed to meet code. While it may be true that the structural engineer in fact created that design, contractually, the architect was responsible for their work product. Additionally, certain parties took the position that the architect breached the following contractual and extra-contractual obligations: The architect failed to make periodic inspections in accordance with this Agreement and shall endeavor to guard against the Contractor s failure to carry out the work in Accordance with the Construction Contract and Contract Documents. (Article 2.1.8) Similarly, the architect failed to make the inspections required in Article and failed to guard the Owner against defects and deficiencies in the Work and assure the Owner of the quality of workmanship and faithful adherence of Contractor to Contract Documents and established schedule as required in that clause. The architect failed to (s)ubmit written reports to the Owner every two (2) weeks recording Architect s observations...(and) shall promptly inform Owner in writing of any deficiencies in the Work and/or deviations from the requirements of the Construction Contract which come to the Architect s attention.... (Article (b)) The architect failed to exercise reasonable care for the safety of the workers on the project even though it had no contractual responsibility for project safety. 120 THE TROPICANA GARAGE COLLAPSE: THE INSIDER S STORY

11 ANALYSIS OF DESIGN GROUP LIABILITY ISSUES Key Deposition Testimony of the Architect and Structural Engineer Relating to the Claims Against The Design Team The architect s representative testified at this deposition that he was present on the project full time beginning April 1, 2002, shortly after construction activities commenced. He was advised by his superiors that he should be answering to the GC and not the owner in light of the restructuring of the relationship brought about by the assignment of the architect s contract. The local architect also had a representative on site full time beginning April 1, These on-site representatives occupied a construction trailer approximately one block from the construction site and within walking distance of the GC s construction trailer. The architect s representative testified that it was his general practice to walk the site on a regular basis to observe the progress of the work and to observe the architectural elements on the project such as the finishes and aesthetics. However, he never considered it to be the architect s responsibility to inspect any of the work, particularly the installation of steel rebar and connections between the vertical and horizontal elements in the garage. For example, on a number of occasions the architect s representative observed that the concrete surfacing on the floor of the garage was uneven and not in compliance with the broom swept appearance called for in the specifications. It was his practice to call such aesthetic deficiencies to the attention of the GC who would then put the appropriate subcontractor on notice. The architect s representative was primarily involved with the processing of the shop drawings. For example, with respect to steel rebar shop drawings, the architect would receive the drawing from the GC and would date stamp it. The architect would then pass that shop drawing along to the structural engineer for its review and for action. Once the structural engineer reviewed the shop drawing and made the appropriate designation on the drawing, the marked up drawing would be returned to the architect who would then stamp the drawing as received and pass it along to the GC. The architect would never review any shop drawings for structural issues, since they were not competent or qualified to do so. They would merely act as a conduit and pass them along to their consultant, the structural engineer for their review and action. The architect would only review the drawing to make sure that everything fit. The architect s representative was not on site at the time of the collapse but he described the condition of the columns which were still standing after the decks had collapsed. He stated that there was a clean sheer of the horizontal decks from the still standing vertical concrete columns along column line one. The structural engineer s lead engineer testified at his deposition that the original design intent for column line one was changed at a meeting held on April 1, The meeting, which was characterized as a value engineering meeting was attended by representatives of the GC, the concrete sub, the structural engineer and briefly by Tropicana. Specifically, the lead engineer testified that the concrete sub announced at the meeting that he could not produce the concrete work for the GC s budget and proposed changes to the THE 47 th ANNUAL MEETING OF INVITED ATTORNEYS 121

12 design of column line one. This was partly due to the fact that this concrete contractor bid the project as a filigree project and the design was for a poured in place construction method. The most significant of those changes was a change from the up turned beam designed by the structural engineer (which not only provided structural integrity to column line one, but also served as a crash barrier) to a down turned filigree beam and a pre-cast barrier wall. The concrete subcontractor also proposed adding an additional column to column line one due to the shallow nature of the down turned beam and the span the filigree panel would have to extend. No minutes of the April 1, 2002 meeting were taken, but the meeting did result in a set of marked up shop drawings and a letter dated April 16, 2002 from the lead engineer to the Tropicana s construction department. From the date of that meeting forward, the structural engineer considered the filigree manufacturer to be the specialty designer of the filigree system along column line one. The lead engineer was emphatic that all design changes along column line one were a result of a decision by the GC and the concrete sub to save time and money and, as the engineer of record, his responsibility was to merely check the design calculations, but now the design was someone else s responsibility. The structural engineer reviewed the new beam design and the configuration of the columns along column line one. The depth of the beam had to be 16 inches deep and the column had to be 48 inches wide before the structural engineer was satisfied that the proposed system would work. The structural engineer visited the site on a number of occasions, but never inspected the steel rebar prior to concrete placement to determine if it was being installed in conformance with the approved shop drawings. The structural engineer had made a proposal to the GC to perform those services, but the lead engineer testified that the proposal was rejected as being too costly. Ultimately, the GC contracted with the steel inspector to perform that service. Professional Liability of the Design Group To make out a prima facie case for professional negligence in New Jersey, a plaintiff must first establish the appropriate standard of care. The applicable standard of care in New Jersey, which is contained in the attached jury charge, [see Attachment B] was adapted from the RESTATEMENT (SECOND) OF TORTS and reflects the common law standard in a majority of states. As explained in Sykes v. Propane Power Corp., 224 N.J Super. 686, (App. Div. 1988), [t]he law is well-settled that one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession in good standing in similar communities quoting Levine v. Wiss & Co., 97 N.J. 242, 246 (1984). To determine the professional s standard of care for his industry, a plaintiff ordinarily must submit expert testimony, because a jury should not be allowed to speculate, without expert testimony, in an area where laypersons have insufficient knowledge or expertise. Taylor v. DeLosso, 319 N.J.Super. 174, 179 (App. Div. 1999). That opinion must relate to generally accepted standards, not merely to standards personal to the witness. Id. at 180. In Taylor, for example, the court dismissed a professional negligence claim against an architect, finding 122 THE TROPICANA GARAGE COLLAPSE: THE INSIDER S STORY

13 that the opinion of the plaintiff s expert (that the architect had a duty to make a site inspection to confirm the accuracy of a land survey) was an unsupported conclusion which did not indicate a violation of an industry standard. Id. at 184. However, New Jersey courts will recognize per se violations of the standard of care and will dispose of the requirement of expert testimony, where the questioned conduct presents such an obvious breach of an equally obvious professional norm that the fact finder could resolve the dispute based on its own ordinary knowledge and experience and without resort to technical or esoteric information. Optica, Inc. v. Metro Public Adjustment, Inc., 2005 WL (D.N.J.). A majority of the cases dealing with this common knowledge exception relate to medical malpractice. For example, in Hubbard v. Reed, D.D.S., 168 N.J. 387 (2001) the Supreme Court of New Jersey held that an affidavit of merit from an expert was not required where a dentist pulled out a patient s wrong tooth. New Jersey courts have yet to apply this doctrine to cases involving the alleged malpractice of an architect or engineer. Once the appropriate standard of care has been established a prima facie showing of professional malpractice requires a plaintiff to prove the following: (1) that the design professional had a duty to the plaintiff, (2) that the design professional s conduct fell below the industry standard of care, and (3) that the deviation from the standard of care was the proximate cause of the plaintiff s injuries. Mobile Dredging & Pumping Co., v. Gloucester, 2005 WL (D.N.J.) (applying New Jersey law to claim involving an engineer s malpractice). The Mobile Dredging court also observed that [t]ypically, the professional standard of care must be decided during trial through expert witnesses, Id. at 6, thereby underscoring New Jersey s strong policy of requiring expert testimony to establish standard of care. The Structural Engineer s Professional Liability for Code Violations It was alleged in the Tropicana litigation that the structural engineer underdesigned the size and configuration of the beams and columns along column line one, as well as the slab/column connection. Moreover, it was alleged that the structural engineer s design failed to meet the appropriate code requirement. The process by which the structural engineering firm reviewed the shop drawings submitted and staffed the project also became fodder for the deposition cross-examination of witnesses. Although New Jersey has not specifically addressed the issue, several states have found that a per se breach of the standard of care occurs in instances where the plans or specifications prepared by a design professional that breach a statute, ordinance or building code. See Mylnarski v Saint Rita s Congregation, 31 Wis.2d 54 (1966) (violating a state statute); Robsol, Inc. v Garris, 358 So.2d 865 (Fla. App. 1978) (violating building codes); Bayne v Todd Shipyards Corp., 88 Wash.2d 917 (1977) (statute or ordinance); Martin v. Sizemore, 78 S.W.3d 249 (Tenn. Ct. App. 2001) (violating building codes). Despite the existence of case law in foreign jurisdictions, the New Jersey rule requiring experts to establish the standard of care remains firmly rooted. Therefore, the plaintiffs would be well advised to provide expert testimony opining that those code violations breached THE 47 th ANNUAL MEETING OF INVITED ATTORNEYS 123

14 the requisite standard of care, unless the court could find that the building code violation was so obvious and blatant that the expert testimony is not necessary to explain it. Architect s Liability for the Structural Engineer s Negligent Design It has been argued that an architect who hires an engineer as a consultant should not be held liable unless the architect himself was negligent. By selecting a reliable engineering firm to perform structural design services, the argument continues, the architect has exercised reasonable care, and thus, cannot be negligent as a matter of law. No New Jersey cases expressly stand for this proposition. But this precise argument has been raised in other jurisdictions and has failed. The case of Johnson v. Salem Title Co., 425 P.2d 519 (1967) is illustrative. In Johnson, a pedestrian was injured when a masonry wall fell on him during high winds. The injured pedestrian sued the owner, the architect, the general contractor, and the masonry sub-contractor. The jury exonerated all parties except the architect which was held solely liable. The Court reasoned that the architect, who was paid for assuming over-all responsibility for designing the building, had a nondelegable duty to meet building code design criteria, including structural engineering requirements. Although the consultant engineer employed by the architect actually performed the negligent work, which did not comply with the building code, and which caused wall to collapse in a windstorm, the architect was liable to the pedestrian who was injured by the falling wall. (Id. at ) The Court noted: Any engineering work incorporated in the plans became a part of the architect s design. Since the defendant assumed the benefits and burdens of designing the building, he assumed the responsibility of meeting the building-code design provisions, including the structural engineering requirements. His duty to meet the minimum safety standards of the building code was, therefore, nondelegable. (Id. at 522) In the instant case, this argument would be virtually impossible to make, given the express terms of the Agreement for Architectural Services. Article described the scope of the architect s services to include Structural Engineering. Additionally, Article provided that The Architect shall be fully responsible for the timely and proper performance of Services by its Consultants and their respective sub-consultants of any tier to the same extent as if all such Services were performed by the Architect s personnel. Architect s Duty to Guard Article of the Agreement for Architectural Services obligated the architect to guard the Owner against defects and deficiencies in the Work and assure the Owner of the quality of workmanship and faithful adherence of Contractor to Contract Documents and established schedule. Article requires the architect to make periodic inspections in accordance with the Agreement and shall endeavor to guard against Contractor s failure to carry out the Work in accordance with the Construction Contract... Some parties maintained that the inspection provisions of Articles and coupled with the above cited provisions required the architect to perform inspections of 124 THE TROPICANA GARAGE COLLAPSE: THE INSIDER S STORY

15 steel rebar or at the very least to insure that those inspections were properly performed. Accordingly, the interpretations of these clauses and the extent of the architect s duty to guard and assure the Owner of the quality of workmanship, particularly in the design-build concept became hot topics for debate among counsel. The case of C.L. Maddox Inc. v. Benham Group, Inc., 88 F3d 592 (8th Cir. 1996) provides guidance with respect to the extent of the architect s obligation. The facts in the Maddox case are as follows. Maddox entered into a design/build contract with the owner, EEI for the remodeling of an electrical power plant in Illinois. Maddox subcontracted with Benham to perform engineering work as part of its obligations under a design/build contract (the subcontract ). Article of the subcontract required Benham to keep Maddox informed of the progress and quality of the Work, and (Benham) shall endeavor to guard (Maddox) against its defects and deficiencies in Work of (Maddox). At trial, Maddox introduced evidence of Benham s design deficiencies and breaches of contract. Maddox alleged damages in the amount of $5.1 million, but acknowledged that approximately $1.2 million of those damages were due to errors by Maddox or the owner, EEI. Maddox contended in its closing argument that it was due the full amount of its damages from Benham based upon the terms of Paragraph of the subcontract which required Benham to guard Maddox against its own deficiencies. The jury agreed with Maddox and returned a verdict in favor of Maddox against Benham for $5 million in damages. On appeal, the court considered whether Article of the subcontract placed a duty on Benham to guard Maddox against Maddox s own deficiencies. In deciding that issue, the Court concluded that the construction of a written contract is a question of law, not fact and thus reviewed the construction of the subcontract de novo. The Court held that if Article was the only provision in the subcontract dealing with a duty to guard, the court might agree with Maddox s interpretation. However, the court reasoned that Article must be read in conjunction with Article which provides that (Benham) shall have no control or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures...for the acts and omissions of (Maddox). Given the language of Article 2.1.7, the court found that it was difficult to interpret Article as shifting to Benham the risk that Maddox would not properly perform its obligations under its contract with EEI. When read in conjunction with Article 2.1.7, the court reasoned that Benham was not responsible for the acts or omission of Maddox and had no duty under the Contract to act as insurance against Maddox s own carelessness. The appellate court found that Paragraph placed a duty on Benham to visit the work site and make recommendations to Benham. What this paragraph does not do is place on Benham the further duty to guarantee that Benham will not make any errors. Accordingly, the Eighth Circuit reversed the jury s award of $1.2 million in damages against Benham. Articles and of the Agreement for Architectural Services can be compared to the duty to guard language contained in the Benham subcontract. Article requires the Architect to make periodic inspections THE 47 th ANNUAL MEETING OF INVITED ATTORNEYS 125

16 and to guard against the Contractor s failure to carry out the Work in accordance with the Construction Contract and Contract Documents. Additionally, Article requires the architect to guard the Owner against defects and deficiencies in the Work and assure the Owner of the quality of workmanship and faithful adherence of Contractor to Contract Documents Moreover, the exculpatory language contained in Article which provides that the Architect shall not be deemed to have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures.... is similar to the exculpatory language contained in Article of the Benham subcontract. Article also provides that the Architect shall not have control over or charge of acts or omissions of the Contractor, its subcontractors...or of any persons performing portions of the Work on behalf of the Contractor. Some differences exist in the language contained in the Benham subcontract and the Agreement for Architectural Services, the most important of which is that, pursuant to Article 2.8.4, the architect s obligation runs to the owner, Tropicana, while in Maddox, the engineer s obligation ran to the design builder, Maddox. In the Maddox case, it would be easier for a court to find that the engineer had no duty to guard the design builder with whom it had a contract, against its own negligence, particularly where the design builder was responsible for the construction means and methods. However, a court may find it easier to find that the architect retained a duty to guard the owner, Tropicana, which arguably is not proactively involved in the construction process. However, an argument could be made that once the Agreement for Architectural Services was assigned to the GC, all references to Owner within the four corners of the agreement should be changed to Contractor. The only problem with that interpretation is that Article clearly states that the architect was required to assure the Owner of the quality of workmanship and faithful adherence of Contractor to Contract Documents.... [emphasis added] Using that one provision as an example, the Agreement for Architectural Services contemplates a difference in the terms Owner and Contractor. In summary, the Maddox case could be used as a template for the Architect s argument that whatever obligations it may have had under Article 2.8.4, it had no duty to act as insurance against [the GC s] own carelessness. Additionally, the Maddox case is important because it highlights a very important issue in the Tropicana case. That is, the obligations of the duties of the parties as set forth in the various written contracts would be a question of law for the judge to determine. Whether the architect breached those duties would have been a question of fact for the jury to determine. Architect s Liability to Third Parties for Job-Site Safety The New Jersey courts penchant for expanding the scope of liability is evident in cases involving the design professional s role during the construction contract administration phase, particularly with respect to responsibility for job-site safety. The New Jersey Supreme Court, in Carvalho v. Toll Bros. & Developers, 143 N.J. 565 (1996), held that a design professional may owe a duty, despite the absence of any explicit contractual obligations concerning safety, 126 THE TROPICANA GARAGE COLLAPSE: THE INSIDER S STORY

17 when the professional has actual knowledge of a dangerous condition to which the job-site workmen are exposed. The Carvalho case involved a fatal accident at a construction site caused by unstable trench walls which collapsed on a worker during excavation. Id. at 569. Pursuant to its contract with the project owner, the engineer was required to have an inspector at the construction site every day to monitor the progress of the work. The engineer did not have any contractual obligation to supervise the safety procedures of construction. The ultimate issue in Carvalho was whether an engineer has a legal duty to exercise reasonable care for the safety of workers on a construction site when the engineer has a contractual responsibility for the progress of the work but not for safety conditions yet is aware of working conditions on the construction site that create a risk of serious injury to workers. Id. at 569. The Court found that the engineer owed a duty to exercise reasonable care to avoid the risk of harm that resulted in the worker s death. The Court imposed a duty of care on the engineer based on fundamental tort theories of foreseeability of harm and consideration of fairness and policy. Id. at 573. The Carvalho Court outlined a multi-dimensional inquiry which combined the objective question of foreseeability of harm with a more subjective public policy analysis. Id. at These public policy elements included the relationship of the parties, the engineer s responsibilities and nature of attendant risk, his opportunity and ability to exercise reasonable care or control, and his actual awareness of the risk. Id. Moreover, the Court considered the overlap of work-progress considerations and work-safety concerns. Matters of construction-site safety did bear indirectly on the engineer s contractual responsibility for supervising the progress of the work. Id. at 575. Ultimately, the court concluded that the engineer had the opportunity and was in a position to foresee and discover the risk of harm and to exercise reasonable care to avert any harm. Under these circumstances, we hold that [the engineer] had a duty of care to the decedent. Id. at 578. Using Carvalho as a template for a claim against the architect in the Tropicana litigation, it could be argued that Article which places the burden on the architect to assure the Owner of... faithful adherence of Contractor to Contract Documents and established schedule [emphasis added], triggers the overlap of work-progress considerations and work-safety concerns as articulated in Carvalho. However, the architect could rely upon the language contained in Article of the Architectural Services Agreement which provides that the Architect shall not be deemed to have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences, or procedures, or for safety precautions and programs in connection with the Work being performed at the Site unless due to Architect s negligence or intentional acts [emphasis added] to avoid the harsh application of the Carvalho decision. However, the protections contained in that clause would be negated by a finding of negligence in the part of the architect. The architect could also candidly state that it was not aware of any working conditions on the construction site that create(d) a risk of serious injury to workers. However, the architect was admittedly on the site every day and the Agreement for Architectural Services obligated him to make periodic THE 47 th ANNUAL MEETING OF INVITED ATTORNEYS 127

18 inspections and to keep the Owner informed of the progress and quality of the work and to guard the Owner against defects and deficiencies in the Work. Those obligations alone could open the door for a finding of liability based upon the Carvalho rationale. It should be noted that in 1999, in the wake of the Carvalho case, the New Jersey Legislature passed N.J.S.A. 2A:29B-1, intending to preclude any further expansion of engineers liability regarding construction site safety. 3 The statute specifically sets forth circumstances under which an engineer may be deemed liable for construction site injury resulting from breach or disregard of construction safety standards or practices and provides engineers with a slightly greater degree of immunity in certain situations than permitted by Carvalho. The statute does not apply, however, if the engineer demonstrates willful misconduct or gross negligence. Also, it important to note that the statute, by its terms, applies only to engineers. INSURANCE Professional Liability Insurance Professional liability or errors and omissions (E&O) insurance provides coverage to defend and indemnify the design professional against claims alleging acts, errors, or omissions in the performance of professional services. The covered errors and omissions are not limited to defects in plans and specifications, but coverage usually extends broadly to encompass most of the professional services rendered by design professionals, including contract administration services. These polices have a deductible which usually applies separately to each claim made during the policy period. The policy limit of liability typically includes defense costs, meaning that the limit is reduced or eroded and can be exhausted by legal fees and other defense costs, such as expert witness fees and other costs of litigation. E&O policies usually contain a contractual liability exclusion which will not cover liabilities assumed by contract unless that liability would exist absent to contractual undertaking. Article of the Agreement for Architectural Services required the architect to obtain professional liability insurance in the amount of not less than One Million Dollars ($1,000,000) which will include the coverage for attorney s fees and investigation. Such policy shall cover claims arising out of errors or omissions during the performance of professional services and shall be on a claim-made basis. That provision also required the architect s consultants to provide the same professional liability insurance coverage. In fact, the architect obtained a professional liability policy in the amount of $2 million and the local architect and structural engineer obtained policies with the same policy limits. Even though the design group had $6 million insurance coverage on the day of the collapse, due to the eroding nature of the policies, little coverage remained as the case approached the June, 2007 trial date. One of the members of the design group had expended the full amount of its policy in legal fees and consultant/expert witness fees by the spring of Of the remaining two members of the design group, one had only a few hundred thousand dollars 128 THE TROPICANA GARAGE COLLAPSE: THE INSIDER S STORY

19 remaining in coverage and the other had an amount close to $1 million as trial approached. The eroding nature of professional liability insurance policies creates difficult decisions for the insured and the insurer in complex multi-party litigation such as the Tropicana case. The simple issue becomes, Should we spend the policy coverage on defense costs or save it for trial or settlement? Generally, the insurance carrier considers the policy coverage limit to be an asset of the insured and will accede to the insured s decision on this issue. In the Tropicana case, it was clear to each of the design professionals that unless the litigation was settled expeditiously, virtually all of the insurance coverage would be expended on legal and expert witness fees during the protracted discovery period and in trial preparation. Accordingly, each of the design professionals employed different strategies to deal with this dilemma. Some of the design professionals approached the plaintiffs early on in the litigation and offered the full policy limit in exchange for a complete release and a hold harmless from and against any of the cross-claims and third-party claims which had been asserted against them in the case. That offer was politely rejected by the plaintiffs since, among other reasons, discovery was in its infancy and plaintiffs had not yet sorted out their theories of liability. At least one of the design professionals decided to split defense costs with the carrier in an effort to spread out the cost and preserve some of the insurance coverage for trial or settlement. In order to preserve coverage, the architect and the local architect agreed to retain the same expert witness since the claims against them were virtually identical. Ultimately, the eroding nature of the design group s professional liability policies and the amount of coverage remaining in the Spring of 2007, played a significant role in the settlement negotiations. Owner Controlled Insurance Program The owner obtained an Owner Controlled Insurance Program (OCIP) for the project which provided coverage for the GC and all of its subcontractors. The owner paid all premiums associated with the OCIP policy and, in return, obtained the benefit of all insurance cost savings by the GC and its subcontractors. The benefit to the owner, of course, was that it would realize a savings on the overall cost of the project if the GC and its subcontractors did not have to pay for insurance separately. The owner believed that it would gain an economy of scale by insuring the entire project. The OCIP policy itself was fairly standard and the risk of building a hotel with an ancillary parking garage and retail, dining, and entertainment complex seemed minimal at the time that the policy was obtained. However, after the collapse, it became obvious that the sufficiency of the OCIP coverage for the project was woefully inadequate. The Design-Build Agreement and the project manual contained the following provisions regarding the owner s insurance program. Section XI. A, of the Design-Build Agreement required the GC and all of its subcontractors to participate in the OCIP: Owner has instituted an Owner Controlled Insurance Program for this THE 47 th ANNUAL MEETING OF INVITED ATTORNEYS 129

20 Project "Tropicana OCIP Summary" dated 12/10/01 included in Exhibit "E" and incorporated by reference herein and upon which the Contractor's Guaranteed Maximum Price is based. Contractor agrees that it shall comply and cooperate with the requirements thereof and Owner's requirements in the administration thereof including, within this obligation, ensuring the compliance by Subcontractors of the Owner's OCIP. Section XI. B. of the Design-Build Agreement obligated the owner to obtain Builder's Risk Insurance: 1. Owner shall furnish the Builder's Risk Insurance for this Project in accordance with the OCIP. Owner will provide certificates of insurance evidencing that Owner has obtained and maintains "all risk" builder's risk insurance covering direct damage for the full insurable value of all labor and materials related to the construction of the Facility and the FF&E, prior to and during erection, until successful completion and acceptance. The policy will insure Owner, the Contractor, Architect and subcontractors as their interests may appear and shall provide for reimbursement, in the event of claim for loss, of the cost of repairing, restoring or replacing, reconditioning, or re-erecting the property lost or damaged with materials of similar kind and quality, including, but not limited to, the cost of materials, labor, supervision, engineering, expediting expenses, transportation, insurance premiums and taxes. Contractor and the applicable Subcontractors shall be responsible for a $5,000 per occurrence deductible on any loss covered under this policy. The project manual provided the following summary of the OCIP in Volume I: The Tropicana...OCIP provides general liability...coverage for contractors and subcontractors while performing work on Tropicana... property. Generally, work performed inside the "gate" of the construction project will be included in the OCIP. The on-site work specified in your contract qualifies for the wrap-up, thus eliminating the need for you to purchase general liability...coverage for work at this site. However, you must continue to purchase general liability...for work performed outside the "gate" of the Tropicana...property. The OCIP policy was divided into a primary policy of $2 million with an excess level of $25 million. For a construction project with an estimated budget of between $ million, hindsight might suggest a larger policy. This became an issue during the litigation when pleadings were amended to assert claims against the broker based upon policy coverage amounts. The subcontractors were particularly affected by the restrictive policy limits. While a small contractor may carry only a $1 million dollar policy for a typical project, on this project the total of $27 million in coverage was essentially intended to cover all of the contractors, thereby potentially leaving this small contractor with less insurance available to him on this project than on others, where it was self-insured. The fact that the owner assured the GC and its subcontractors of the appropriateness of the insurance made the claims by the subcontractors even more substantive. Given the typical other insurance clauses of the insurance many of the parties, including the GC and some of the subcontractors, were involved in, coverage actions against stand alone carriers in order to tap as many sources of recovery as possible. During the litigation of the subrogation claims, the terms of the OCIP policy 130 THE TROPICANA GARAGE COLLAPSE: THE INSIDER S STORY

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