Contractor Sentenced to Three Years in Prison Following Employee Death

December 17, 2019

On November 3, 2017, Gerardo Juarez began his first day of work for James Coon Construction. The next day Juarez fell from a roof he was repairing, suffering injuries which later proved fatal. Following the accident, James Coon, owner of Coon Construction, pled guilty to involuntary manslaughter and workers’ compensation fraud and was sentenced to three years in prison.

Coon Construction was hired to repair a roof at a three-story apartment complex in Akron, Ohio. New-hire Juarez was placed on the crew tasked with making the repairs. After two years of criminal litigation following the accident, it was discovered Coon did not provide Juarez with safety equipment adequate for work performed at such height, which is a felony. Evidence suggested that his fall could have been prevented had he been wearing adequate fall protection. Coon also failed to provide workers’ compensation coverage, another felony.

Criminal prosecution for failure to provide a safe environment for employees is an increasing trend. Federal law requires employers to instruct each employee in the recognition and avoidance of unsafe conditions and the systems applicable to his or her work environment to control any hazards or other exposure to illness or injury.  Failure to follow applicable safety laws and provide workers’ compensation insurance as required by law can expose employers to possible criminal action.

Reporting Fraudulent Information to the Workers’ Compensation Board Results in Criminal Charges

December 12, 2019

Lying to the workers’ compensation authorities in order to reduce premiums can result in criminal charges. On September 5, 2019, Manhattan D.A. and other New York state investigators announced the indictment of unlicensed labor broker Salvador Almonte and insurance broker Steven Asvasadourian on multiple fraud charges after they were caught in a scheme which included lying to the New York State Insurance Fund about the status and work of construction employees. Almonte and his accomplice underreported the size of Almonte’s companies and lied to insurance carriers about the type of work being performed to evade more than $1 million dollars in insurance premiums. In doing so, the pair left more than one hundred construction workers underinsured. In one instance, Almonte claimed that workers he sent to perform dangerous tasks on high-rise construction projects were cleaners, thereby drastically lowering the premium rates he paid.  Investigators found that more than 12 of Almonte’s workers have been injured in the past four years, one fatally, and Almonte refused to acknowledge to the New York Workers’ Compensation Board that he was their employer.

While this case illustrates extreme examples of fraud in the workers’ compensation system, the exposure to potential criminal liability for fraudulently reporting information to the workers’ compensation board is a legitimate, serious consequence of such actions.

Insurance claims can be denied completely unless the owner or contractor can show how much damage resulted from causes covered under the policy

October 17, 2018

An appeals court recently agreed with an insurance company that coverage was properly denied because its policyholder did not present enough evidence showing how much damage occurred during the period covered by its insurance policy. This opinion could have broader implications for project owners and contractors, who may need to make insurance claims for damage resulting from both covered and excluded causes.

In the case, a hotel owner made a claim under its 2012-2013 insurance policy for property damage to its roof caused by hailstorms. There had been multiple hailstorms before and during the 2012-2013 insurance policy period. The insurance carrier obtained a judgment declaring that no coverage existed, which was affirmed on appeal.

In Texas, an insurance carrier is only required to pay for losses covered by the policy. The policyholder bears the burden to prove that its claims are covered by the policy. If property damage was caused by both covered and excluded perils, then the policyholder must present evidence sufficient to allow the court to reasonably allocate the damage.

Here, the hotel owner claimed that some of the hail damage was caused by storms which occurred during the 2012-2013 insurance policy period, but the evidence showed that some or all of the damage could have been caused by storms before the policy period started. The owner’s expert admitted that there was no way to tell which storms caused or contributed to the damage, or how much damage was caused by storms during the policy period. Under these circumstances, the court sided with the insurance company and allowed it to deny the claim completely.

The issues raised in this case can arise on construction projects. Project owners or contractors may make insurance claims for property damage which occurred over an extended period of time or which may have resulted from multiple causes. This situation can be further complicated when multiple insurance policies are involved.

For these reasons, when preparing insurance claims, owners and contractors should take care to gather evidence which would permit a reasonable determination of what damage was (or was not) caused or worsened by the perils covered under the applicable insurance policy.

Certain Underwriters at Lloyd’s of London v. Lowen Valley View, LLC, 892 F.3d 167  (5th Cir. 2018).