Auto-Owners Insurance Company owed no duty to defend or to indemnify its insured, Ralph Gage Contracting, Inc. in the underlying lawsuit filed by the Kjellanders

United States Court of Appeals, Eleventh Circuit.


AUTO-OWNERS INSURANCE COMPANY, Plaintiff - Appellee, v. RALPH GAGE CONTRACTING INC., et al., Defendants, RICHARD KJELLANDER, KRESLEY KJELLANDER, Defendants - Appellants.
No. 16-15442
Decided: April 17, 2017 Before MARCUS, FAY, and EDMONDSON, Circuit Judges.

In this declaratory judgment action, Richard and Kresley Kjellander appeal the district court's grant of summary judgment in favor of Auto-Owners Insurance Company (“Auto-Owners”). In granting summary judgment, the district court concluded that Auto-Owners owed no duty to defend or to indemnify its insured, Ralph Gage Contracting, Inc. (“Gage”), in the underlying lawsuit filed by the Kjellanders. No reversible error has been shown; we affirm.

In May 2013, the Kjellanders entered a contract to purchase a home, contingent on a satisfactory home inspection. The Kjellanders hired Gage, a licensed home inspector, to perform the inspection. Based on Gage's inspection report -- which identified no major defects -- the Kjellanders proceeded with the purchase of the home. Shortly after closing on the property, however, the Kjellanders discovered several property defects: defects which were not readily observable, but which materially affected the value of the property. These defects included water and mold damage and a faulty HVAC system.

The Kjellanders filed the underlying suit against Gage in Florida state court. They alleged that Gage performed negligently by failing to discover the defects that existed at the time of the home inspection. The Kjellanders said that, if they had known about the defective conditions, they would have exercised their option to cancel the purchase contract instead of closing on the sale of the property. The Kjellanders sought damages of over $1.7 million for repair costs, diminution in value, and for loss of use.

At the time of the inspection, Gage was covered under a Commercial General Liability insurance policy issued by Auto-Owners (“Policy”). The Kjellanders demanded payment under the Policy. Auto-Owners denied the claim, but provided a defense under a reservation of rights. Auto-Owners then filed this declaratory judgment action, seeking a declaration that it owed no duty to defend or to indemnify Gage in the underlying suit. Auto-Owners and the Kjellanders filed cross-motions for summary judgment; the district court granted summary judgment in favor of Auto-Owners.

We review de novo a district court's grant of summary judgment, applying the same legal standards as the district court. Whatley v. CAN Ins. Cos., 189 F.3d 1310, 1313 (11th Cir. 1999). Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and compels judgment as a matter of law. Holloman v. Mail-Well Corp., 443 F.3d 832, 836-37 (11th Cir. 2006).

We are bound by the substantive law of Florida in deciding this diversity case. See Erie R.R. Co. v. Tompkins, 58 S. Ct. 817 (1938). Under Florida law, an insurer owes a duty to defend its insured “when the complaint alleges facts that fairly and potentially bring the suit within policy coverage.” Jones v. Fla. Ins. Guar. Ass'n, Inc., 908 So. 2d 435, 442-43 (Fla. 2005). “Any doubts regarding the duty to defend must be resolved in favor of the insured.” Id. at 443. If the alleged facts and legal theories asserted in the complaint fall outside a policy's coverage, no duty to defend arises. See, e.g., Chicago Title Ins. Co. v. CV Reit, Inc., 588 So. 2d 1075, 1075-76 (Fla. Dist. Ct. App. 1991). Where there exists no duty to defend, an insurer has no duty to indemnify. Wilshire Ins. Co. v. Poinciana Grocer, Inc., 151 So. 3d 55, 57 (Fla. Dist. Ct. App. 2014).

The interpretation of a provision in an insurance contract is a question of law subject to de novo review. Hegel v. First Liberty Ins. Corp., 778 F.3d 1214, 1219 (11th Cir. 2015). When an insurance policy's language is “clear and unambiguous,” it is construed according to its plain language. Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 33-34 (Fla. 2000). If the policy language is ambiguous, however, the policy is “interpreted liberally in favor of the insured and strictly against the drafter who prepared the policy.” Id. at 34. “[I]n construing insurance policies, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.” Id. The insured bears the burden of proving that a claim is covered by the insurance policy, and the insurer bears the burden to prove that an exclusion applies. LaFarge Corp. v. Travelers Indem. Co., 118 F.3d 1511, 1516 (11th Cir. 1997).

Under the terms of the Policy, Auto-Owners agreed to pay “sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” In pertinent part,1 the Policy provided coverage for “property damage” only if it was “caused by an ‘occurrence.’ ” The Policy defines “property damage” this way:

a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or

b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the “occurrence” that caused it.

An “occurrence” is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” In a case like this one -- where the term “accident” is undefined by the Policy -- the Florida Supreme Court has said that “accident” means “not only ‘accidental events,’ but also damages or injuries that are neither expected nor intended from the viewpoint of the insured.” See State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So. 2d 1072, 1072 (Fla. 1998).

The plain language of the Policy requires unambiguously a causal link between the alleged “property damage” and an “occurrence.” Here, the only asserted “occurrence” is Gage's alleged negligent inspection. Thus, to show that their claim is within the Policy's coverage, the Kjellanders must demonstrate that Gage's negligent inspection caused “property damage” within the meaning of the Policy.

That the defects to the property pre-existed Gage's inspection is undisputed. And the Kjellanders do not allege that Gage's negligent inspection in itself caused physical injury to the property. Instead, all physical damage to the property -- including water and mold damage and the faulty HVAC equipment -- resulted from some prior event or series of events.2

The Kjellanders assert, instead, that their loss of use of the property constituted “property damage” under the Policy's second definition. About causation, the Kjellanders contend that, but for Gage's negligent inspection, they would not have purchased the home and would have suffered no loss of use of the property.

Even if we accept that Gage's inspection induced the Kjellanders to purchase the home and, thus, resulted in the Kjellanders' financial losses, that argument fails to establish coverage under the Policy. The alleged “property damage” itself -- the loss of use -- was caused by the pre-existing property defects, not by Gage's failure to discover those defects. Indeed, the property defects would have inevitably led to the loss of use of the property whether Gage had conducted an inspection or not. That it was the Kjellanders -- and not some other homeowner -- that ultimately experienced that loss of use does nothing to prove the requisite causal connection between Gage's negligence and the “property damage” for purposes of establishing coverage under the Policy.

Because the Kjellanders have failed to establish a causal connection between an occurrence -- Gage's negligence -- and the alleged property damage, they have failed to satisfy their burden of demonstrating coverage under the Policy. Thus, the district court concluded correctly -- as a matter of Florida law -- that Auto-Owners owed Gage no duty to defend or to indemnify in the underlying state court action.3

AFFIRMED.

FOOTNOTES

1.  The Policy requires that the property damage be caused by an “occurrence” that took place in the “coverage territory,” that the property damage occurred during the policy period, and that the insured lacked knowledge of the damage before the policy period. The issues of coverage territory, policy period, and the insured's prior knowledge are not in dispute.

2.  Nothing evidences -- and the Kjellanders do not contend -- that these prior events occurred during the pertinent policy period. Thus, these prior events themselves can serve as no basis for coverage under the Policy.

3.  Notwithstanding their failure to establish causation, the Kjellanders also contend that an exclusionary clause -- added after the pertinent events in this case and which excluded expressly coverage for property damage resulting from inspections -- evidences that coverage in fact existed under the original policy for damages arising from Gage's home inspection. We reject this argument. Florida law makes clear that “exclusionary clauses cannot be relied upon to create coverage.” See CTC Dev. Corp., 720 So. 2d at 1075. More important, however, under Florida law we construe the Policy according to its plain meaning and interpret the Policy as a whole. Anderson, 756 So. 2d at 33-34. Because the Policy at issue in this appeal contains no inspection endorsement, we will not consider the language of the later-added endorsement in construing the Policy.We also reject the Kjellanders' public-policy-based argument that the Policy must be construed to provide coverage for a negligent home inspection, given Florida Statute § 468.8322 -- which requires home inspectors to maintain insurance coverage. That Gage failed to obtain the appropriate insurance coverage as required by Florida law does not render the terms of the Policy invalid as contrary to public policy or Florida statute.

Environmental Liability Claims are Rising

There is increasing potential for “larger liability claims to become more expensive, complex and international, demonstrating the pervasive and long-term nature of liability losses,” suggests a new global claims review released Thursday by Allianz Global Corporate & Specialty (AGCS).

Industrial, environmental, product liability and financial lines claims in excess of US$1 billion – based on a 2015 Aon study that identified 86 corporate liability losses of that amount – “are more commonplace and are no longer confined to just the U.S. and Europe,” notes Global Claims Review: Liability in Focus – Loss trends and emerging risks for businesses.

The Aon report notes some 57 of the 86 losses were in excess of US$2 billion and 13 were more than $10 billion, “mostly from pollution incidents and regulatory actions,” the review states.

“While we have not necessarily seen an increase in the frequency of large liability claims, those that are filed are typically now more complex and with a higher spend than in the past,” Larry Crotser, head of AGCS chief claims office, North America, points out in the report.

“This can be seen in the cost of product liability claims, which have been rising, while we now also see a far bigger impact from environmental liability claims,” Crotser notes.

“The emissions testing issues in the automotive industry are an example of just how complex liability losses can become, giving rise to multi-jurisdictional regulatory investigations and litigation,” the review suggests. 
It notes that last October, Volkswagen agreed to a US$15 billion settlement with a group of U.S. federal and state regulators covering some 475,000 vehicle owners in the U.S. And this past December, the company “agreed to a further US$1 billion settlement to fix or buy back another 80,000 diesel vehicles sold in the U.S.,” the report adds.

“While very large liability losses can impact individual companies, they also can trigger systemic risks that can affect many companies within a given sector,” the review cautions, adding that large environmental liability claims, such as pollution, are increasing, particularly from the mining and construction sectors.

“Such claims can be complex, costly and take a long time to settle. They can be particularly challenging in emerging markets, given cultural differences, language and legal systems that may be different to U.S. and European courts,” the report explains.

Add to that that global class actions by consumers and investors are expected to become more significant, moving from a primarily U.S. affair to more international.

“The Americas region, driven by the U.S., continues to be the largest liability market in terms of number of claims generated, accounting for over half of all claims analyzed,” the report states.

The liability claims analyzed in the review have an approximate value in excess of 8.85 billion euros or US$9.3 billion, the report notes.

While claims payments can vary widely in scale – reflecting the widespread nature of the risk landscape – major liability losses (amounting to greater than 1 million euros), such as aviation, shipping or terrorism incidents, account for fewer than 1% of claims by number. That said, these claims represent 74% of the total value of claims analyzed.

“Collectively, the top three causes of loss account for over 60% of the value of all liability losses analyzed, while the top 10 causes of loss for global businesses account for over 80% of all liability losses,” AGCS reports.

The move toward becoming more complex, expensive and international demonstrates a real shift.

Although the Top 10 causes of liability loss by value from 2011 to 2016 are well-established, the frequency of some claims is declining. The list below is based on analysis of more than 100,000 claims from 100-plus countries over five years.



Consider that the impact of collision/crash and slips/falls/falling objects are the most frequent liability claims for insurers, accounting for 48% of all claims by number.

“However, the frequency of these claims has been declining in many major casualty markets, a reflection of improvements in risk management and better safety regulation, as well as a shift away from heavy industry,” the report explains.

That said, there are some common losses that perhaps show signs of extending their reach in future. Human error, for example, ranks as the third top cause of liability loss (19%), but accounts for just 1% of all claims received by insurers.

“While this loss category focuses on the impact of everyday employee errors in the workplace, it also includes the effect of much larger events where human error has been a factor, such as in aviation or shipping accidents,” the report explains.



Then there is the potential impact of future influencers like new technology in the form of autonomous driving, 3D printing and the sharing economy.

“Broadly speaking, the frequency of claims is expected to decline, although this will be accompanied by new threats, such as increasing cyber and product liabilities and recall risks,” the report points out.

“Business models in the digital economy are more complex and without borders, making liability harder to apportion and claims more complex to settle. Automation is likely to lead to increased product liability for machinery and component manufacturers and software providers in particular,” it states.

Related: Driverless cars to “revolutionize” motor insurance as liability shifts towards manufacturers: Fitch

With regard to new manufacturing techniques like 3D printing, this “could play a positive role in addressing rising business interruption exposures, but could also make it harder to trace products through the supply chain,” the report notes.

The new environment will require appropriate expertise, AGCS expects.

“With liability claims becoming more complex and technical, investing in claims expertise and knowledge is just as important for liability lines as it is for property and specialty lines,” the report advises.

“As businesses grow ever more sophisticated and connected, insurers need to ensure that their claims handling processes stay up-to-date,” it emphasizes.

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Source: https://reactionsnet.com, April 17, 2017

Environmental liability claims above $1bn are becoming more commonplace but coverage for the peril is still lagging.

According to Allianz Global Corporate & Specialty (AGCS), environmental damage can now cost insurers an average of €2.3m per claim.

According to Matt O’Malley, president of North America environmental at XL Catlin, the insurance penetration rate for environmental cover in the US, which is the largest environmental insurance market, is roughly 10%.

“Penetration for middle markets is much lower compared to Fortune 1000 companies, so there is definitely a growth opportunity for insurers there,” he said.

The shift in environmental claims was recently highlighted by a wide-reaching scandal in Europe and beyond, in which nearly every diesel-powered vehicle on the continent emitted more pollutants in real world driving scenarios than had been indicated during testing.

Whether through emission cheating devices or the creative interpretation of data results, such a scandal highlights how complex liability losses can become. Volkswagen’s involvement in the scandal ended up bringing numerous other automakers into the fold, including General Motors, Fiat Chrysler, Renault and Mitsubishi.

Losses to Volkswagen alone have been estimated at $21bn, according to Reuters.

In the US, electric company Duke Energy recently sued 30 of its former insurance companies including Allianz, Allstate, and Berkshire Hathaway for roughly $1bn in clean-up fees after it was discovered that coal ash which the company had disposed of over a period of decades was seeping into nearby groundwater.

According to O’Malley, mould has become increasingly problematic – particularly so in the hospitality sector – and led to some unexpected claims as high as seven figures.

Mid-stream energy, or the transportation of oil and other energy sources to their destination, has also become an issue on the US, as any pipe breach could cost thousands in a matter of minutes due to the sheer volume of oil or gas being pumped through an ageing system.

While O’Malley has not seen a rise in the total number of claims or claims inflation in the US as of yet, the individual limits being purchased by client are increasing.

“One broker has managed to get a tower between $350m and $400m together,” he said, a sizeable increase on the standard limits sought of circa $200m.

Environmental claims in Asia are expected to increase as the coverage becomes more widely purchased, AGCS has predicted.

Chinese authorities granted non-governmental organizations the ability to launch public interest litigation over violations of environmental law for the first time in 2014.

In Africa, mining operations have led to considerable issues with contamination, as governments step up efforts to combat pollution from ongoing operations.

One case currently ongoing in South Africa could set a legal precedent for all mining companies in the country after a trio of mining directors were arrested for leaving a polluted site in their wake.

They could face possible fines of more than $7m.

As governments gradually take steps to hold firms who pollute accountable, and the general public becomes increasingly concerned about environmental issues, insurers could have a potential business opportunity in a broader range of regions.

According to AGCS, environmental damage had the second highest average liability losses from 2011 to 2016, behind only to vandalism and terrorism, excluding financial lines.

Still, environmental damage only accounted for 10% of the value of all claims in the Americas, while not accounting for much in any other region, highlighting the relative novelty of the risk in emerging and established markets alike.

As far as individual lines of business, most industries carry some contamination risk.

Cargo trains can cause substantial damage if they derail, but if they do so while carrying hazardous materials near waterways, then the contamination risk is immense.

Such cargo trains routinely travel alongside the Hudson River in New York, where a single accident could lead to a large-scale environmental disaster.

In that space, rail insurers are usually not even insured enough for the immediate aftermath of a large-scale disaster, much less the clean-up costs, and are not required by law to carry insurance at all, although most do.

The amount of oil shipped by rail has also increased more than 40 times, according to the Insurance Information Institute, as the amount of oil from shale deposits has overwhelmed the pipeline delivery system.

Likewise, power plants, cargo ships, car manufacturers, and even retailers all have some form of contamination exposure.

Developer McKafka sues architect I.D.E.A., alleging construction delays and defects at the Crimson in Miami’s Edgewater neighborhood

Developer McKafka sues architect I.D.E.A., alleging construction delays and defects at the Crimson in Miami’s Edgewater neighborhood
Posted on April 18, 2017 by Sheryl Barr

Source: https://therealdeal.com, April 17, 2017
By: Francisco Alvarado

An Aventura-based architecture firm allegedly left McKafka Development Group hanging, delaying construction on its 90-unit high-rise called the Crimson in Miami’s Edgewater neighborhood, according to a lawsuit.

McKafka, through its limited liability company Alpine Estates, accuses International Design Engineering and Architecture, or I.D.E.A. for short, of breaching its contract and negligence, in the lawsuit filed in Miami-Dade Circuit Court last month.

Stephane L’ecuyer, I.D.E.A.’s principal, did not return two phone messages seeking comment. McKafka principal Stephan Gietl also did not respond to The Real Deal, but his lawyer Bruce King said, “We had several discussions to get a resolution and have been unable to do so.” He declined further comment.

According to the lawsuit, McKafka hired I.D.E.A. on Feb. 8, 2013 as the architect of record and Facchina Construction of Florida as the general contractor for the Crimson. However, the architecture firm performed poorly, the lawsuit alleges. The Crimson, at 601 Northeast 27th Street, remains unfinished today.

“I.D.E.A. failed to timely coordinate with or respond to Facchina, prepared incomplete or inconsistent drawings and specifications, and failed to perform in a manner consistent with the design schedule,” the lawsuit states.

McKafka alleges that I.D.E.A. also failed to timely respond to requests for information, change order requests, or provide staff to ensure continuity of service. In addition, according to the suit, I.D.E.A. improperly designed the garage ramps that led to substantial structural changes. The company also improperly designed the temperature control system, resulting in high humidity in the condo units, the lawsuit alleges.

Other significant revisions at the Crimson included the relocation of piles and beams and the redesigning of the height of the building’s stairs and the size of an emergency generator room, McKafka alleges. As a result of the repairs and revisions, the project was delayed and Facchina charged the developer for the delays, as well as additional construction costs, according to the suit.

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Crimson construction begins in Edgewater
Developer targeting young professionals, investors as condo buyers

January 23, 2014 09:45AM
By Eva Cantillo





Miami Mayor Tomas Regalado, Commissioner Marc Sarnoff and mckafka principals Stephan Gietl and Fernando Levy Hara at The Crimson groundbreaking ceremony (credit: Eva Cantillo) and a Crimson rendering

One of numerous developers building a condo tower in Miami’s Edgewater neighborhood, mckafka Development Group is targeting young professional buyers seeking a “different lifestyle” for its Crimson project.

The Real Deal attended Wednesday’s groundbreaking ceremony for The Crimson, a luxury waterfront development at 601 Northeast 27th Street. Mckafka’s Stephan Gietl and Fernando Levy Hara hosted the event. Guests included Miami Mayor Tomas Regalado, city commissioners Marc Sarnoff and Keon Hardemon and several representatives from ISG World, which is handling sales at the project.

The Crimson is designed as a high-tech condo building that caters to young professionals, which in turn could generate interest from investors. The building only includes 90 units, while surrounding projects have between 150 and 300 condos.

“It’s a different lifestyle you’re buying into,” Gietl told The Real Deal. He described the project as “intelligent luxury,” with unit designs that are “very detailed, focused and high-quality.”

Designed with European elements, The Crimson emphasizes both style and functionality, according to Gietl. Residents can choose from one, two or three-bedroom layouts, as well as six penthouses and townhome designs. Other project amenities include a cyber café, electric car charging stations and a zen room.

Mckafka has received LEED Gold certification for The Crimson, Hara told The Real Deal. It is the first Edgewater development to receive that designation.

The company incorporated features it hopes would benefit the public, including a waterfront promenade and fountain, according to Hara.

“Edgewater is now the hot spot in Miami,” Hara said.

The Edgewater neighborhood stretches from Northeast 17th to 37th streets. There are currently 10 condo towers currently proposed for the area, including Related’s Paraiso Bay, Melo Group’s Bay House and Eastview Development’s Biscayne Beach.

“Edgewater will be the next Wynwood or Midtown,” Regalado said during the ceremony.

Mckafka acquired the future Crimson site through a foreclosure auction. Inspiration for the name came from the colors associated with Harvard University, where Gietl and Hara first met.

The Crimson’s groundbreaking was one of three held on Wednesday, underscoring Miami’s current state of rapid growth. Developers of the Bond at Brickell and SLS Brickell also kicked off construction.

Mckafka expects The Crimson to be completed by the second quarter of 2015.

PADEP Urges Homeowners to Check for Mine Subsidence Risk. Over 1 million homes could be at risk

PADEP Urges Homeowners to Check for Mine Subsidence Risk

Over 1 million homes could be at risk

Pittsburgh, PA – The Pennsylvania Department of Environmental Protection (DEP) urges homeowners to check updated mine maps to determine if their home or other buildings are at risk of mine subsidence. Over 1 million homes in Pennsylvania sit atop abandoned mines.

Mine subsidence occurs when the ground above an old or abandoned mine cavity collapses. A subsidence event can occur at any time and cause sudden, significant damage—often exceeding $100,000 or total loss of the structure.

Mine subsidence is not covered by a standard homeowner’s insurance policy. DEP administers low-cost mine subsidence insurance (MSI) coverage through the Commonwealth of Pennsylvania. The average policy of $160,000 costs about $7 a month, and senior citizens are eligible for discounted rates.

“If you’ve checked before and think your property is not at risk, now is the time to check again,” said John Stefanko, deputy secretary of active and abandoned mine operations. “We’ve revamped the maps on the Mine Subsidence Insurance website (www.pamsi.org) for a more interactive and precise view.”

Radio public service announcements and ads on social media and other websites will be encouraging homeowners to make sure they have proper coverage, and how to sign up for the insurance.

Using geographic information systems (GIS) online, DEP combines location data with mining data to show where specific properties are in relation to old and abandoned mines. DEP’s MSI program uses the data to identify coverage areas.

Processing thousands of paper maps into a digital format and uploading the data into the GIS system takes time. DEP has completed the process for tens of thousands of maps with thousands more to be entered. The website (www.pamsi.org) regularly updates as historical maps and risk areas are discovered.

Much of the underground mining in Pennsylvania occurred over a century ago—long before DEP existed - and many areas that were originally mined long ago have been remined. Consequently, the department may have hundreds of maps and a dozen different series for just one area.

“DEP is continuously improving our maps and data for underground mining. That’s why we recommend property owners need to check back periodically,” said Stefanko. “Our goal is to have the best underground mine mapping easily accessible to anyone who wants to view it.”

Homeowners should visit www.pamsi.org or call 1-800-922-1678 to check if their home is over an abandoned mine and for more information on the Mine Subsidence Insurance Program.

Photos of structural damage resulting from mine subsidence are available for use at: http://www.dep.state.pa.us/MSIHomeowners/damage.html. 

Website: www.pamsi.org

Good View Roofing & Building Supply Corporation fined $62,320 for multiple serious accident-related safety violations following an investigation of a fatal forklift accident in San Francisco.

News Release No.: 2017-27                                                 Date: April 17, 2017 Cal/OSHA Cites Building Supply Company for Fatal Forklift Accident San Francisco—Cal/OSHA today cited Good View Roofing & Building Supply Corporation $62,320 for multiple serious accident-related safety violations following an investigation of a fatal forklift accident in San Francisco. On November 21, 2016, a 60-year-old forklift operator was transferring building supplies from the company’s warehouse to a customer’s vehicle. When the forklift descended a sloped ramp, a bag of mortar mix fell off of the load and blocked the front right wheel. The operator reversed the forklift to free the bag of mortar and while doing so, turned the steering wheel so that the back wheel went over the edge of the ramp, tipping the five-ton forklift over. The worker attempted to jump out of the cab and was fatally crushed by the forklift.  “This incident could have been prevented had the employer effectively evaluated the workplace for hazards, which would have identified the unguarded edge of the ramp that exposed the forklift to tipping,” said Cal/OSHA Chief Juliann Sum. “The worker should have been properly trained to stay seated with the seatbelt fastened in the event of a tip over.”  The six violations cited in Cal/OSHA’s investigation included three classified as serious accident-related, one serious, one regulatory and one general. The serious accident-related violations were cited for the company’s failure to ensure:  the proper use of a forklift seatbelt,  the forklift operator is certified to operate the vehicle safely, and that industrial ramps have at least an 8-inch curb or equivalent installed along the open edges to prevent the wheels of industrial trucks from running off the ramp. The serious violation was cited for the employer’s failure to inspect and identify hazards in the workplace, provide written safety instruction on industrial trucks in a language readily understandable by all of the workers, and for failure to ensure that all affected workers comply with the forklift safety requirements at the worksite. A serious violation is cited when there is a realistic possibility that death or serious harm could result from the actual hazardous condition. Forklift safety requirements are summarized on page 65 of Cal/OSHA’s Pocket Guide for the Construction Industry. Cal/OSHA helps protect workers from safety and health hazards on the job in almost every workplace in California. Cal/OSHA’s Consultation Services Branch provides free and voluntary assistance to employers to improve their safety and health programs. Employers should call (800) 963-9424 for assistance from Cal/OSHA Consultation Services. Cal/OSHA has also published a wealth of helpful guides for employers and workers. Employees with work-related questions or complaints may contact DIR’s Call Center in English or Spanish at 844-LABOR-DIR (844-522-6734). The California Workers’ Information line at 866-924-9757 provides recorded information in English and Spanish on a variety of work-related topics. Complaints can also be filed confidentially with Cal/OSHA district offices. Members of the press may contact Peter Melton or Frank Polizzi at (510) 286-1161, and are encouraged to subscribe to get email alerts on DIR’s press releases or other departmental updates. # # #         The California Department of Industrial Relations, established in 1927, protects and improves the health, safety, and economic well-being of over 18 million wage earners, and helps their employers comply with state labor laws. DIR is housed within the Labor & Workforce Development Agency. For general inquiries, contact DIR’s Communications Call Center at 844-LABOR-DIR (844-522-6734) for help in locating the appropriate division or program in our department.

Construction worker Kathleen Louise Lee with Sletten Construction died after being hit by a pickup truck that was being driven by another construction worker in Montana

LIVINGSTON, MONTANA

The woman who died Monday in an accident on an Interstate 90 construction site near Livingston has been identified as Kathleen Louise Lee.

Lee, 52 years old, was from Troy in the northwest corner of Montana.

She died after being hit by a pickup truck that was being driven by another construction worker.

The two employees both worked for Sletten Construction.

Sletten Construction released the following statement on Tuesday:

“Sletten Construction is deeply saddened by the death our employee, Kathleen Lee. The deceased was a laborer employee with our Bridge Division who in the past year had worked on several different projects for the Company. We extend our hearts and deepest sympathies to her family, friends, and all those affected by this unfortunate tragedy. The circumstances surrounding this tragic event are currently under investigation by the Company. Our company CEO, Erik Sletten, is currently at the project site meeting with employees and staff in light of this tragic event."

It happened at about 1:30 p.m. on Monday in the closed-off construction area.

Clay Herbst of the Park County Sheriff's Office said, "At this time it looks like what happened is just a terrible accident."

Herbst said, "Both of them were working, it was not an outside car driving into the scene, it was one of the work vehicles. He was backing the vehicle up, and by all accounts quite slowly, somehow she ended up underneath the vehicle."

Lee died at the scene.

The Sheriff's Office is conducting the investigation, not the Montana Highway Patrol, because that part of the highway was closed at the time, meaning that it is considered an industrial accident.

Construction at the site has been temporarily halted as the investigation continues.

The name of the driver has not been released.

(APRIL 17, 2017) A construction worker was reportedly run over by a vehicle and died in a closed portion of a construction zone on Monday afternoon.

Authorities have not yet released the name of the woman who died.

It happened at approximately 1:30 pm on Monday.

The Park County Sheriff’s Office responded to a report of person being run over at mile marker 333 on Interstate 90.

Park County Rural Fire, Livingston City Fire, Montana Highway Patrol, and the Park County Sheriff’s Office responded to the scene.

The Park County Sheriff’s Office is currently investigating the deadly accident.

They have requested the assistance of the Montana Highway Patrol and their "total station" crash re-creation equipment.

Company Overview

Sletten Construction Company is an Employee-Owned business that began in 1928 in Montana. Our construction projects range from hospitals, airports, detention centers, prisons, K-12 schools, universities, bridges and water and wastewater facilities.

Construction worker David Sprague, 59, was electrocuted to death when the crane he was operating touched a high tension power line in Searsburg, VT

SEARSBURG, Vt. (NEWS10) – Vermont State Police say a construction worker was killed in a construction accident on Putnam Road in Searsburg on Tuesday.

David Sprague, 59, of Windham, Maine, was electrocuted when police say the crane he was operating touched a high tension power line.

He was pronounced dead at the scene.

An autopsy is scheduled to determine the manner and cause of death.

Green Mountain Power responded immediately and quickly rendered the scene safe.

The Vermont State Police were also assisted on scene by Wilmington Fire Department, Bennington Fire Department, Deerfield Valley Rescue as well as Bennington Rescue.

Electric Shock Drowning : Shelly Darling and Elizabeth Whipple may have been electrocuted to death while sunbathing in Lake Tuscaloosa in Alabama

TUSCALOOSA, Ala. (AP) – Police say two women found dead in a lake in Alabama may have been electrocuted.

Authorities held a news conference Monday to discuss the deaths of 34-year-old Shelly Darling and 41-year-old Elizabeth Whipple. They were found dead early Saturday in Lake Tuscaloosa.

Homicide Capt. Kip Hart says an investigator was shocked during an initial search at the scene, so authorities know there was electricity going through at least part of a dock where the women had gone to sunbathe.

But Hart says officers are waiting on a full report from a medical examiner to determine exactly what happened.

The two were found dead after relatives reported them missing. Family found the women’s belongings on the dock, but the women were missing.

Authorities say foul play isn’t suspected.



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By Stephanie Taylor Staff Writer

Authorities are investigating the possibility that two women suffered electrical shocks before their bodies were found in Lake Tuscaloosa on Friday.

One of the police officers involved in the search for Shelly Darling and Liz Whipple was shocked by a current on the dock where the women had been sunbathing Friday, said Tuscaloosa County Metro Homicide Unit assistant commander Capt. Kip Hart. The officer wasn’t injured, but he may have discovered what caused the women to drown.

“At this time, we still do not have a clear understanding of what happened,” Hart said Monday morning. Investigators were back at the dock Monday to examine whether electricity played a part, he said.

Darling, 34, and Whipple, 41, went to the lake on Friday, he said. Darling’s husband, assistant athletics director for the University of Alabama, contacted police when his wife didn’t return home by dinnertime.

Officers searched overnight and located the women’s bodies during the early morning hours Saturday.

Both women worked for legal clinics at the University of Alabama School of Law. Whipple was interim director for the school’s domestic violence clinic and Darling worked with the elder law clinic.

“These two young ladies were very involved in the community, and obviously touched a lot of people’s lives with their jobs,” Hart said. “I feel for their families right now and hope we’re able to find some answers as to why this happened.”

A Tuscaloosa orthodontist died in August 2015 after he was shocked. Dr. Eric Hughes, 37, had gone swimming in the lake after cutting his grass one afternoon. His friends found him in about four feet of water near his pontoon boat. Investigators believe that he was shocked before he drowned.

The Electric Shock Drowning Prevention Association discourages swimming around boats, docks and marinas that use AC electrical power for boats, electrical outlets, lighting, boat lifts or other purposes. The organization’s position is that swimming around those areas should be prohibited, with “no swimming” signs posted and facility monitoring.


ESD happens when a typically low-level AC current passes through the body with enough force to cause skeletal and muscular paralysis. Victims are unable to help themselves, and eventually drown.

Electric shock drowning can occur in any location where electricity is provided near water, but the majority of drownings have happened in public and private marinas and docks, according to the ESD Prevention Association. Children are often victims, according to the association.

The ESDA recommends that people have their boats and facilities inspected by certified electricians. The U.S. Consumer Product Safety Commission and American Red Cross also warn that ESD can occur around pools, hot tubs and spas.

Hart said that people should routinely check their boat houses, piers or docks with electricity.

“Make sure it’s inspected and up to code so we don’t have this happen again,” he said.
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What is electric shock drowning? Family of teen killed in Alabama lake warns about shock danger
 
By Ashley Remkus | aremkus@al.com 

April 18, 2017 at 2:03 PM




Nearly a year after a 15-year-old Alabama girl was killed by electric shock drowning, two women died in Lake Tuscaloosa this past weekend.

Shelly Darling, 34, and Elizabeth Whipple, 41 were found dead in the lake early Saturday morning after they were reported missing by family members. While authorities suspect electric shock may have caused Darling and Whipple to drown, an official cause of death won't be named until the Tuscaloosa County Metro Homicide Unit receives an initial autopsy report from a state forensic lab. Capt. Kip Hart said he hopes to release an official cause of death later today.






Electrocution possibly caused deaths in Lake Tuscaloosa

Investigators "are not 100 percent sure" electricity caused the deaths.

About a year before Darling and Whipple died, Carmen Johnson, a 15-year-old Priceville High School cheerleader drowned after being electrocuted at her family's boat dock on Smith Lake in Winston County on April 16, 2016. Since then, Carmen's parents, Casey and Jimmy Johnson, have made it their mission to educate the public about electric shock drowning. The family lives in Morgan County but enjoys spending free time at the lake house.
Carmen Johnson was killed by electric shock drowning at her family's lake home in Winston County on Smith Lake in 2016. Since then, her family has worked to educate the public about electric shock drowning.Facebook

"We don't want anyone else to go through what we've experienced," Casey Johnson told AL.com. "We could just not talk about it. But, we know Carmen would want us to talk about this and save another life."

The Johnsons and friends were at the family's lake home in Winston County when Carmen and her friend Reagan Gargis dove into the water on April 16, 2016. Seeing the ladder wasn't down for the girls to climb out of the water, Jimmy Johnson placed it in the lake.

Soon the father heard the girls cry for help and jumped in the lake hoping to save them. His son Zach also jumped in to help but they, too, were being shocked by an electric current that was transferring into the water through the metal ladder.

Jimmy Johnson, who works in electronic repairs, realized they were being shocked and managed to shout for his wife to cut the power to the dock. But, Carmen Johnson didn't survive.


"If my husband hadn't went into the water, we wouldn't have known what was going on," Casey Johnson said. Because electric shock drowning typically doesn't leave visible proof on victims' bodies, it's unlikely anyone would have known about the electrocution if others hadn't been in the water and felt the shock. The electrocution can paralyze swimmers, making it difficult for them to get out of the water.

The current that shocked Carmen Johnson was caused by water seeping into a light switch box at the family's dock, according to her mother. When the metal ladder was put in the water, the electrical current from the switch traveled through the dock, down the ladder and into the water.

"I think when Reagan touched the ladder and Carmen grabbed Reagan's legs trying to pull herself up, she got the full force of the current," Casey Johnson said.

The story of Carmen's death made national news, including a segment on the TODAY Show. Her parents suggest these tips for ensuring safety while swimming near boat docks:
Check wiring often -- even a couple of times each year. Something as simple as a round of bad weather can cause damage.
Make sure there's a ground fault breaker at the dock
Anyone who feels tingles or shocks while swimming, should move away from the dock, not toward it.
Know where the power cutoff is and make sure others outside the water know, too
Plastic or wooden ladders are preferable, rather than metal or aluminum ones

"It can be any moment, anywhere that something happens," Casey Johnson said. "We have heard from several people about how they lost family members to electric shock drowning."

Jimmy and Zach Johnson and Gargis survived the incident and haven't experienced any problems since, Casey Johnson said.

The number of people who drown as a result of electrocution is difficult to track because death reports seldom name electrocution as a factor in drowning fatalities, according to the Centers for Disease Control and Prevention. More than 3,000 people typically drown each year in the United States, the CDC reports. It is unclear how many of those drownings are caused by electric shock.

Authorities suspect electric shock played a role in the deaths of Darling and Whipple because an investigator was shocked during the search Saturday. Hart said other members of the search crew reported seeing a spark from the shock. The investigator was not injured.

Family members found the Darling and Whipple's belongings on the dock and called police to report them missing.

Whipple was the interim director of the domestic violence clinic at the University of Alabama School of Law.

Darling, a native of Vestavia Hills, was a clinic staff attorney at the University of Alabama School of Law.

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Autopsy shows 2 lawyers found dead in Lake Tuscaloosa were electrocuted

Shelly Darling and Elizabeth Whipple were found dead Saturday, April 15, 2017, in Lake Tuscaloosa. ( )
updated April 19, 2017 at 11:31 AM




Two women who died in Lake Tuscaloosa last weekend were electrocuted, authorities announced Wednesday morning.

The Friday deaths of Shelly Darling, 34, and Elizabeth Whipple, 41, have been ruled accidental, Tuscaloosa County Metro Homicide Unit Capt. Kip Hart said. The final autopsy report will not be available until all tests are completed, he said.

Darling and Whipple were found dead in Lake Tuscaloosa early Saturday morning after they were reported missing by family members. Hart said a Tuscaloosa investigator was shocked during the initial search at the scene on Saturday but was not injured. "We know there was electricity going through at least part of the pier," he said at a Monday press conference. "We're waiting on full report from medical examiner to determine exactly what happened."

Electrocution has been suspected as the cause of death. Authorities said they know a current was running through the dock, but are still waiting on a report from the city inspector.



Electrocution ruled as cause of death in Lake Tuscaloosa incident

Whipple was the interim director of the domestic violence clinic at the University of Alabama School of Law. Darling, a native of Vestavia Hills, was a clinic staff attorney at the University of Alabama School of Law.

The Tuscaloosa County Metro Homicide Unit was called to the 15000 block of West Winds Drive in Northport on Lake Tuscaloosa at around 12:30 a.m. to the report of a possible drowning. Hart said Darling's family members called police when she didn't return home for dinner.

Darling's husband told police he last saw his wife at 8 a.m. Friday when he left to play golf. He told police that his wife and Whipple were going to the family lake house to sunbathe that morning.

Family found the women's belongings on the dock, but the women were missing. That's when family members called Tuscaloosa police. A dive team and lake patrol searched the lake. The bodies of women were found in the lake at around 4:30 a.m.

Darling graduated Summa Cum Laude from The University of Alabama with a bachelor's degree in both communications and marketing. While in college, she was a member of Alpha Chi Omega sorority, according to her obituary.

She and her husband, Chris, lived briefly in Washington D.C. where she obtained her law degree from George Washington University. "Shelly will be remembered for her quick wit, creative spirit, and tender, loving heart for all of God's creatures,'' her obituary reads. "She. Was. Awesome."

Darling's funeral will be held Thursday at 1 p.m. at Christ Episcopal Church in Tuscaloosa.

Efforts to obtain funeral information for Whipple weren't immediately successful. Tuscaloosa authorities plan to release more information about the deaths later this morning.

Construction worker Christopher J. Verstraete with Miller's Total Comfort, Inc. died after he suffered an incised wound to the neck

JOLIET, ILL – The Occupational Safety and Health Administration has opened an inspection of a Joliet work site where a Miller Total Comfort employee was killed.

Christopher J. Verstraete, 33, of Lake in the Hills, died Friday after a workplace incident and preliminary autopsy reports revealed he suffered an incised wound to the neck. He was sent to Presence Saint Joseph Medical Center where he was pronounced dead.

Verstraete was a construction worker for the St. Charles-based company and was involved in a “workplace mishap” in the 1100 block of Van Dyke Road, according to the Will County Coroner's Office.

Miller Total Comfort has no prior history with OSHA, according to U.S. Department of Labor spokeswoman Rhonda Burke.

Miller Total Comfort did not return a call seeking comment Monday.

Joliet police also are investigating. The final cause and manner of Verstraete’s death is pending police, OSHA, autopsy and toxicological reports.