Posts By: Chris Wielinski

Contractual Written Notice Requirements, Substantial Performance, and Practical Advice in the Wake of a Recent Texas Supreme Court Decision

Houston Principal Laura Napoli-Janitens recently wrote the following article for the April edition of Construction News magazine. Laura reviews a few items that can affect contractors in the wake of a recent Texas Supreme Court Decision.

Texas justly prides itself on being a freedom-of-contract state. Yet despite respected and long-standing jurisprudence on that point, James Construction Group, LLC had to spend nearly 8 years defending what should have been, a remarkably simple concept—that written notice requirements in a construction contract do, in fact, require that notices be sent in writing. As the James Construction Group, LLC v. Westlake Chemicals Corporation, 650 S.W. 3d 392, 396 (Tex. 2022), reh’g denied (Sept. 2, 2022) case has recently come to a final conclusion, a brief note on its background and practical application of its holdings seems timely.

In James the Texas Supreme Court overturned the lower court’s key holdings and resolved an important and unanswered question regarding written notice: how Texas’s substantial compliance doctrine intersects freedom of contract principles generally, and written notice requirements specifically. After 8 years of litigation regarding the written notice provision in the Westlake-James contract, the Texas Supreme Court finally held that “When a contract mandates written notice, a writing is a necessary part of complying with that condition, substantially or otherwise. A contrary holding would allow parties to elude the bargain they freely made and would open the door to a host of factual disputes about whether proper contractual notice was given – the very kinds of disputes that the writing requirement is intended to foreclose.”

For a bit a background on how we finally arrived at this definitive stance from the Texas Supreme Court, you must understand that in simplest terms, James v. Westlake is a breach of contract case. It arose out of a construction Contract between an owner, Westlake Chemical Corporation (“Westlake Chemical”), and one of the owner’s general contractors, James Construction Group, LLC (“James”).

In simplified terms, Westlake Chemical claimed that James breached certain contract provisions requiring James to safely perform its work, that James was terminated for cause, and therefore Westlake Chemical was entitled to damages for costs associated with a replacement contractor to complete James’s scope of work. Westlake Chemical’s position avoided the Contract’s notice provisions, which required 3 written notices in order to terminate a contractor for cause, and thus made written notice an express condition precedent to Westlake Chemical’s recovery of the damages it sought. Notably, Westlake Chemical did not provide the required written notice(s) and thus, at least according to James, failed to comply, substantially or otherwise, with the contract’s written notice provisions. In fact, prior to being sued, James believed that it had been terminated for convenience, not cause. After a jury verdict, which both parties appealed, and intermediate appellate court largely agreed with Westlake’s position that oral notice at a meeting could substantially comply with the written notice requirements of the contract.

Upon its review of the case, the Texas Supreme Court announced a substantial compliance standard, but with an extremely important and outcome-determinative qualification: “Substantial compliance is the appropriate standard when evaluating whether a party complied with a contractual notice condition. However, we also hold that substantial compliance with a condition precedent requiring written notice may not be achieved without a writing in some form. Here, Westlake provided no writing at all with respect to at least two of Section 21.3’s required written notices and thus failed to substantially comply with the provision’s conditions as a matter of law.”

In arriving at its ultimate holding, the James Court acknowledged that the prior jurisprudence may cause confusion to contracting parties attempting to provide contractually compliant notice. Thus the Court placed an unequivocal caveat upon the application of the substantial compliance doctrine to written notice provisions: a party’s provision of oral notice does not comply, substantially or otherwise, with a requirement of written notice.

Of particular note, the Texas Supreme Court largely adopted the view that providing a contractor actual notice is insufficient in the face of a contractual requirement that notice be provided in writing.

The two primary takeaways from James v. Westlake are (1) the doctrine of substantial compliance still applies to conditions precedent such that minor deviations from a contractual notice provision that do not severely impair the underlying purpose and cause no prejudice will not deprive a party of the benefit of its bargain; but (2) mere oral or actual notice cannot satisfy a contractual provision requiring written notice.

In practical terms, this goes deeper than the simple notion that we started with—that a contractual written notice requirement means a writing is required. The Texas Supreme Court’s exploration of facts is instructive. Its analysis included a deep dive into the specific facts surrounding Westlake’s purported notices and focused on the specific language used in the alleged written notices and what that language could have or should have conveyed to James.

Thus the Court made clear that effective written notices should be very specific, contain detail of incidents or events preceding the written notices, and rely heavily on contractual language. In conclusion, I offer some quick practice points for both owners and contractors in light of the James decision:

  • Check your contracts for written notice requirements, and understand them, these include: Notice to Proceed; Notice of Force Majeure; Notice of Increases to Project Time or Project Cost; Notice of Claims; Notice of Disputes; Notice of Termination
  • When drafting any notices, use triggering words from specific contract provisions
  • Be specific in your notices: Specify the contract provision to which notice relates; Specify cure periods and timelines where applicable; Detail event(s) giving rise to notice where applicable; Document failure to adequately respond to first notice (i.e., failure to cure or dissatisfaction with party’s remediation effort); Document termination in writing, specifying the justification or reason for termination (convenience, cause, etc.)
  • Even if written notice is not required under the contract, best practice (especially regarding termination) is to provide notice in writing
  • If notice is given in a meeting, in the field, or on a job site, document it afterwards (at the very least in an email your counterparty)
  • Be aware that where the contract is silent, the courts will not read in a written notice requirement.

Laura Napoli-Janitens is a principal in the Houston office of Cokinos | Young. Her practice focuses on counseling clients through all phases of dispute resolution involving complex commercial and construction disputes. She has experience representing businesses in a diverse range of commercial matters in state, federal, and appellate courts, including litigation involving real estate disputes, industrial construction, pipelines, water supply distribution systems, municipal utility districts, developer disputes, and tort defense.


About Cokinos | Young

Cokinos | Young has led Texas construction and real estate law for over three decades. And today, our 100+ dedicated professionals operate coast to coast and proudly handle all aspects of construction law for owner/developers, project managers, general contractors, design professionals, subcontractors, sureties, and lenders. We provide both dispute resolution and transactional services to clients through all phases of commercial, industrial, pipeline, offshore, civil, and residential construction. Our reputation was built on relentless commitment to client service and the industries we serve, and that remains our primary driver. Dedicated. Resilient. Expertise. That’s Cokinos | Young. Learn more at cokinoslaw.com.

The Future is Now: Application of AI-Controlled Water Management System

Dallas Attorney Jared Norton recently wrote the following article for the March edition of Construction News magazine. Jared discusses the application of AI-Controlled Water Management System.

Construction projects are anything but benign: inherent dangers in the physical construction, safety risks to the enormous labor pool, and seemingly ever-increasing financial burdens and obstacles to continuously overcome in advance of fast-approaching deadlines should be more than enough for anyone to stress over. Naturally, insurance companies across the board, especially in this post-2020 COVID-affected economy, are more than comfortable charging hefty premiums and deductibles to their insurers for the “privilege” of coverage should something go awry during or post-construction.

One such problem is water damage; a good portion (30%) of all Builders Risk claims[1] come from moisture intrusion or water-related damage. However, recent developments in technologies, powered by the ostensibly all-encompassing “AI,” along with partnerships with insurance companies, promises to reduce strain on contractors, developers, owners, etc. as well as mitigate impact to those same insurance companies.

The Nightmare Hypothetical[2]

Saturday 1:34 am: The leak is deep inside a wall of your new 20-story commercial structure. It starts slowly. Just a few drips from a joint in a copper supply line.

Saturday 2:40 am: The dripping continues for about an hour. Then the copper press fitting fails, sending thousands of gallons of water an hour spraying inside the walls and at this point leaking outside the walls. Located near a major highway, the on-site security guards are unable to detect the sound of the water.

Monday 7:52 am: Hidden from view, the flow continues unabated until Monday morning when crews arrive to continue fitting out the lower level and discover massive amounts of water has submerged sheetrock, rolls of carpet, multiple generators and other equipment. Water, finding the lowest point as it does, also flooded four elevator pits and four escalator pits.

Monday 8:02 am: The water main is finally shut off. But millions of dollars of damage has already been done. And if the project has good insurance coverage, the contractor is still on the hook for sub-deductible losses. And in the case of water damage, there can be many such losses that add up to a lot of money.

AI, IoT, WINT & HSB

Enter WINT Water Intelligence, a “water management system that detects and stops leaks at the source using Artificial Intelligence”[3] via the utilization of IoT (Internet of Things) sensors, in conjunction with HSB / Munich Re.

WINT serves to “equip contractors, developers, owners and facility management teams with a cutting-edge solution for managing water throughout the lifecycle of a building, from construction to operation.” IoT sensors are placed in areas where certain construction is underway that will anticipate waterflow or is otherwise plausibly at risk for water damage.

The sensors monitor the environment in at least two ways: (1) if connected to a water source or “checkpoint,” observe and monitor the flow of water in accordance with its coded parameters; (2) if connected to a non-water source, observe and monitor for whether water/moisture is detected at all. Those devices connected to water sources can communicate among each other via Wi-Fi, Ethernet connections, or even cellular networks (dependent upon the stage of construction and whether electrical infrastructure has been installed) as well as central hub(s) on- or off-site. If a water leak, or if a recording above a pre-specified threshold, is detected, commands previously designated in the central hub(s) can automatically shut off the source of water local to the affected area. Separately, if a device that is monitoring an area where water/moisture is not normally expected detects an anomaly, an alert can be signaled to the human elements on call for further investigation and confirmation.

HSB has taken the unique step of providing a “water damage warranty,” covering up to $250,000 for water damage on a construction site under the condition that the WINT system failed to prevent or otherwise mitigate the water-related issue. This is a relatively nascent act from an insurance company that is likely to be seen by others as “AI-adjacent” systems like WINT are adopted for other areas/phases of construction projects.

The possibilities for systems like this to aid contractors, owners, and design professionals is certainly welcome in a time where “an ounce of prevention is worth a pound of cure” rings loudly in the face of elevated premiums and deductibles. By integrating AI-driven solutions and developing partnerships with forward-thinking insurers like HSB, stakeholders can safeguard their investments, streamline operations, and ultimately enhance project outcomes for the benefit of all involved parties. Thorough analysis from legal counsel ensures contractual agreements align with the deployment and performance of these systems and, ideally, offer comprehensive protection and peace of mind to all involved parties. Investing in prevention today safeguards against the costly repercussions of tomorrow, charting a course towards resilience and success in the ever-developing construction industry.


[1] “Damage from water accounts for roughly 30% of Builders Risk claims.” https://axaxl.com/fast-fast-forward/articles/dont-go-with-the-flow_water-is-the-new-fire-in-construction-risk.

[2] Id.

[3] “WINT and HSB Help You Reduce Your Deductibles”.

Jared Norton is an Attorney in the Dallas office of Cokinos | Young. His practice primarily focuses on construction, insurance coverage, and commercial litigation. Prior to joining Cokinos | Young, Mr. Norton solely represented design and engineering professionals against malpractice, construction defect, breach of contract, and indemnity claims. Mr. Norton is experienced in all aspects of litigation in state courts from initial answer or petition, discovery, and case strategy to preparing and arguing motions, conducting depositions, and trial or arbitration preparation.


About Cokinos | Young

Cokinos | Young has led Texas construction and real estate law for over three decades. And today, our 100+ dedicated professionals operate coast to coast and proudly handle all aspects of construction law for owner/developers, project managers, general contractors, design professionals, subcontractors, sureties, and lenders. We provide both dispute resolution and transactional services to clients through all phases of commercial, industrial, pipeline, offshore, civil, and residential construction. Our reputation was built on relentless commitment to client service and the industries we serve, and that remains our primary driver. Dedicated. Resilient. Expertise. That’s Cokinos | Young. Learn more at cokinoslaw.com.

10 Cokinos | Young Attorneys Named 2024 Texas Rising Stars by Super Lawyers®

Cokinos | Young is pleased to announce that ten of its attorneys have been recognized on the 2024 Texas Rising Stars list of exceptional young attorneys. Rising Stars is a ranking service based on a statewide survey, peer nominations, and independent research of Thomson Reuters. Less than 2.5 percent of Texas attorneys are chosen for this prestigious distinction. To be eligible, lawyers must be 40 years old or younger, or in practice for 10 years or less. View the full digital edition here.

About Cokinos | Young

Cokinos | Young has led Texas construction and real estate law for over three decades. And today, our 100+ dedicated professionals operate coast to coast and proudly handle all aspects of construction law for owner/developers, project managers, general contractors, design professionals, subcontractors, sureties, and lenders. We provide both dispute resolution and transactional services to clients through all phases of commercial, industrial, pipeline, offshore, civil, and residential construction. Our reputation was built on relentless commitment to client service and the industries we serve, and that remains our primary driver. Dedicated. Resilient. Expertise. That’s Cokinos | Young. Learn more at cokinoslaw.com.

Gregory A. Holloway Admitted to American College of Trial Lawyers

FOR IMMEDIATE RELEASE

GREGORY A. HOLLOWAY ADMITTED TO AMERICAN COLLEGE OF TRIAL LAWYERS

Houston, Texas, March 13, 2024 – Gregory A. Holloway has become a Fellow of the American College of Trial Lawyers, one of the premier legal associations in North America.

The induction ceremony at which Gregory A. Holloway became a Fellow took place recently before an audience of approximately 625 during the recent Spring Meeting of the College in Phoenix, Arizona.

Founded in 1950, the College is composed of the best of the trial bar from the United States, Canada, and Puerto Rico. Fellowship in the College is extended by invitation only and only after careful investigation, to those experienced trial lawyers of diverse backgrounds, who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility, and collegiality. Lawyers must have a minimum of fifteen years of trial experience before they can be considered for Fellowship.

Membership in the College cannot exceed one percent of the total lawyer population of any state or province. There are currently approximately 5,800 members in the United States, Canada, and Puerto Rico, including active Fellows, Emeritus Fellows, Judicial Fellows (those who ascended to the bench after their induction), and Honorary Fellows. The College maintains and seeks to improve the standards of trial practice, professionalism, ethics, and the administration of justice through education and public statements on independence of the judiciary, trial by jury, respect for the rule of law, access to justice, and fair and just representation of all parties to legal proceedings. The College is thus able to speak with a balanced voice on important issues affecting the legal profession and the administration of justice.

Gregory A. Holloway is a partner in the firm of Cokinos | Young. The newly inducted Fellow is an alumna (alumnus) of South Texas College of Law.

Cokinos | Young Promotes Six Attorneys to Principal and Two to Senior Counsel

Cokinos | Young is pleased to announce eight attorneys have been promoted in 2024. Chris Burwell, Bianca Cedrone, Laura Napoli-Janitens, Katie Nash, Mitchell Powell, and Josh Woods have been promoted to Principal, and Cody Graham and Kevin Moczygemba have been promoted to Senior Counsel, in recognition of their commitment to their clients and the Firm, hard work, and dedication to providing best-in-class service.

“It is an honor to welcome our 2024 Principal and Senior Counsel class,” said founding partner Gregory Cokinos. “We are extremely proud of each of them for demonstrating an unwavering commitment to our clients and being leaders of the firm.”

“All eight attorneys are true leaders and have exemplified the core values of our C|Y family, ” said founding partner Marc Young. “We look forward to their continued contributions to the firm for years to come.”

Congratulations to all on reaching this significant career milestone!

Christopher Burwell is a principal at the San Antonio office of Cokinos | Young. Since 2009, Christopher has represented general contractors and subcontractors with respect to commercial private and public works, both at the state and federal level. Christopher’s practice particularly focuses on drafting, filing and defending construction claims against public entities as well as private commercial entities, and preparation of mechanic’s and materialmen’s liens on a public and private commercial project level. Christopher continually advises and educates clients as well as assists in filing and prosecuting claims against private and public payment and performance bonds at the state and federal level. Finally, a good portion of Christopher’s work focuses on review, comment and interpretation of public and private commercial contracts, pre- and post- procurement and commencement. Christopher has been board certified in Texas Construction law since 2016 and has held office for the Construction Law Section of the San Antonio Bar Association. As a son of a public school teacher and farmer, Christopher uses his experience and small town upbringing to provide a hardening, resilient, analytical, yet common sense approach to his practice and his clients’ everyday legal issues.

Bianca Cedrone focuses on defending personal injury claims including, catastrophic injury and wrongful death claims. She has extensive experience in defending: trucking and commercial motor vehicle accidents, product liability, premises liability, construction site injuries, construction defects, automobile accidents, and Texas Non-Subscriber claims. Bianca believes in taking an efficient approach to litigating cases, being responsive to clients, and putting forth an aggressive defense in a cost-efficient manner.

Cody Graham is a trial lawyer and senior counsel in the San Antonio office of Cokinos | Young.  Cody has extensive experience in defending against construction defect claims, trucking accident suits, workplace injury claims, and general business disputes.  Prior to joining Cokinos | Young, Cody focused his practice on the pursuit of subrogation claims on residential and commercial property losses involving millions of dollars in dispute.  In his subrogation practice, Cody was lead counsel on a multitude of suits asserting faulty construction, installation errors, and products defect liability.  Cody has tried over a dozen cases in state court and through arbitration, including first-chair jury trial experience.  In addition, Cody has appellate experience including the submission of briefings up to the Texas Supreme Court.

Kevin Moczygemba helps clients in commercial litigation and in the defense of serious personal injury cases.  He has extensive experience handling matters involving breach of contract, construction defect, fraud, and other business torts, mechanics liens, and personal injury. Kevin also has significant experience working with government contracts.  After law school, he served as a Presidential Management Fellow with the U.S. Air Force Space and Missile System Center where he gained invaluable insights into the government’s contracting process. Kevin also served as an Assistant Attorney General with the Texas Attorney General’s Office where he brought cases against government contractors for fraud, kickbacks, and other regulatory violations.

Laura Napoli-Janitens is a principal in the Houston office of Cokinos | Young. Her practice focuses on counseling clients through all phases of dispute resolution involving complex commercial and construction disputes. She has experience representing businesses in a diverse range of commercial matters in state, federal, and appellate courts, including litigation involving real estate disputes, industrial construction, pipelines, water supply distribution systems, municipal utility districts, developer disputes, and tort defense.

Katie Nash is a principal in the Houston office of Cokinos | Young, where she is a member of the Corporate & Real Estate Transactions practice group. Katie’s practice primarily focuses on corporate governance, private equity matters, mergers and acquisitions, and the general representation of clients regarding businesses of all types, where she advises on all aspects of the corporate life cycle from formation to growth, reorganization, restructuring, and finally to winding up. Katie also represents clients in commercial and residential real estate transactions, debt and equity financing, employment issues, complex business contract negotiations, and related transactional matters.

Mitchell Powell is a principal in the Houston office of Cokinos | Young. Mitchell’s practice focuses primarily on complex commercial litigation matters and catastrophic claims for a wide range of clients in the construction, oil and gas, electrical, utility, manufacturing, and trucking industries. He develops close working relationships with clients and acquires an in-depth understanding of their businesses in order to best protect their interests through implementation of effective legal strategies.

Joshua Woods is a litigation attorney in the Houston office of Cokinos | Young, focusing primarily on complex commercial and industrial construction disputes. Joshua has handled construction disputes involving petrochemical plants, pipelines and compressor stations, multi-family residential construction, high-rise apartments and condominiums, large-scale network infrastructure, utility locating services, and healthcare facilities. Joshua also has substantial experience and expertise at managing clients’ electronic discovery needs as part of the litigation process.

About Cokinos | Young

Cokinos | Young has led Texas construction and real estate law for over three decades. And today, our 100+ dedicated professionals operate coast to coast and proudly handle all aspects of construction law for owner/developers, project managers, general contractors, design professionals, subcontractors, sureties, and lenders. We provide both dispute resolution and transactional services to clients through all phases of commercial, industrial, pipeline, offshore, civil, and residential construction. Our reputation was built on relentless commitment to client service and the industries we serve, and that remains our primary driver. Dedicated. Resilient. Expertise. That’s Cokinos | Young. Learn more at cokinoslaw.com.

Patrick Wielinski Recognized as a Dallas Construction Law Legend

At its annual Holiday Party, the Dallas Bar Association Construction Law Section honored Dallas Principal, Patrick Wielinski, as a Dallas Construction Law Legend. Pat was honored along with Hollye Fisk, Founder of Fisk Attorneys. The Legends award is not an annual award; rather the Construction Law Section awards it only where merited based on a lawyer’s lifetime of contributions to the Construction Bar. Pat’s contributions throughout his distinguished career certainly fit the bill.

Pat saw a need and has dedicated his career to going to bat to obtain insurance coverage for owners and contractors for the serious risks associated with construction. He has been comfortable being known as a coverage lawyer, but he deep down is a construction lawyer that also knows a little bit about insurance.

As part of the recognition, the DBA Construction Law Section will be making a donation in his honor to the North Texas Food Bank.

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Patrick J. Wielinski

About Cokinos | Young

Cokinos | Young has led Texas construction and real estate law for over three decades. And today, our 100+ dedicated professionals operate coast to coast and proudly handle all aspects of construction law for owner/developers, project managers, general contractors, design professionals, subcontractors, sureties, and lenders. We provide both dispute resolution and transactional services to clients through all phases of commercial, industrial, pipeline, offshore, civil, and residential construction. Our reputation was built on relentless commitment to client service and the industries we serve, and that remains our primary driver. Dedicated. Resilient. Expertise. That’s Cokinos | Young. Learn more at cokinoslaw.com.

Patrick Wielinski Helps Contractors Achieve Major Breakthrough as to CGL Coverage for Construction Defects under Illinois Law

The Illinois Supreme Court issued its opinion in Acuity v. M/I Homes of Chicago, LLC, Docket No. 129087 on November 30, 2023. The case involved commercial genera liability (CGL) coverage for construction defects resulting in water damage to a townhome project. In that context, the Supreme Court responded to the request of the intermediate appellate court to clarify the law as to the existence of property damage or occurrence under a CGL policy in Illinois. That request was supported by an amici curiae brief sponsored by AGC of America, National Association of Home Builders, American Subcontractors Association and local Illinois chapters. The brief was primarily authored and filed by Cokinos | Young Dallas Principal, Patrick J. Wielinski, joined by Clifford Shapiro of Chicago. The Supreme Court answered the call and embarked on a clarification that was extremely favorable to the construction industry.

For over twenty years, courts in Illinois had interpreted the definitions of “property damage” and “occurrence” in the standard CGL policy to deny coverage for property damage arising out of defective construction as to the entire construction project itself. Those courts found coverage only in the unlikely event of damage to other real property, and perhaps to personal property of project owners. In reality this amounted to little, if any, coverage for Illinois insureds and Illinois has lagged behind numerous other jurisdictions in upholding coverage for unexpected and unintended property damage arising out of faulty workmanship by the insured. The Supreme Court of Illinois noted that such a narrow view of coverage is unsupported by the policy language, and it joined the majority of jurisdictions in holding that unexpected and unintended physical injury to tangible property arising out of defective work can amount to an occurrence of property damage under a CGL policy.

The court further opined that once an occurrence of property damage is found, resort must be had to the property damage exclusions within the policy to determine ultimate coverage, including exclusions relating to that particular part of property damage upon which work is being performed out of which the property damage arises; that particular part of real property that must be repaired or replace due to incorrect work by the insured; property damage to the insured’s work subsequent to completion (subject to an exception for work performed by the insured contractor’s subcontractors); or impaired property or property that has not been physically injured.  In doing so, the Court rejected the notion that property damage arising out of defective workmanship amounts to an uninsurable “business risk,” the cost of which is to be borne by the insured contractor itself. Aligning itself with the majority of jurisdictions, the Court concluded that uninsured business risks are to be sorted out through application of the property damage exclusions in the policy and not lip service to nebulous business risks. In that regard, the court remanded the case to the trial court to determine issues relating to applicability of those exclusions to the facts before it.

Overall, AGC, NAHB, and ASA members – and the construction industry everywhere – had a good day before the Illinois Supreme Court. Patrick has participated in the filing of such briefs for many years, and this latest success is the culmination of nearly twenty years of advocating before numerous state and federal courts throughout the United States through the filing of amicus curiae briefs on behalf of the construction industry.

Patrick J. Wielinski

About Cokinos | Young

Cokinos | Young has led Texas construction and real estate law for over three decades. And today, our 100+ dedicated professionals operate coast to coast and proudly handle all aspects of construction law for owner/developers, project managers, general contractors, design professionals, subcontractors, sureties, and lenders. We provide both dispute resolution and transactional services to clients through all phases of commercial, industrial, pipeline, offshore, civil, and residential construction. Our reputation was built on relentless commitment to client service and the industries we serve, and that remains our primary driver. Dedicated. Resilient. Expertise. That’sCokinos | Young. Learn more at cokinoslaw.com.

San Antonio Construction Attorney Stephanie O’Rourke Honored as Fellow of American College of Construction Lawyers

Principal of Cokinos | Young and esteemed construction attorney in San Antonio, Stephanie O’Rourke, has been accorded the prestigious position of Fellow within the American College of Construction Lawyers (ACCL). As a distinguished national entity in the domain of construction law, the ACCL extends Fellowship exclusively by invitation to legal professionals who have distinguished themselves in the practice or academic sphere of construction law and dispute resolution relating to the infrastructure sector. Selection as a Fellow signifies a career distinguished by ethical integrity, intellectual leadership, dedication to professionalism, and a spirit of collegiality, along with a dedication to contribute positively to the construction sector. The ACCL’s fellowship encompasses eminent lawyers from across the globe, including the United States, Canada, the UK, Australia, and France. Stephanie has the unique honor of being the first San Antonio-based construction attorney to be invited to join this elite international assembly.

“We are thrilled that Stephanie has been invited to join this prestigious organization,” said Principal and CEO Gregory Cokinos. “Her unwavering commitment to the construction industry, expertise, high ethical standards, professionalism, and collegiality will be invaluable to the College’s mission and noble efforts to improve and enhance the practice and understanding of construction law.”

As a vital part of the litigation team at the San Antonio office, construction attorney Stephanie O’Rourke brings her expertise to the forefront of the firm’s legal services. Her specialized practice is primarily dedicated to representing general contractors in San Antonio, steering them through the intricacies of construction contract negotiations, dispute resolutions, and multifaceted business litigations. Stephanie’s track record is adorned with a series of successful verdicts and settlements, cementing her reputation as a prominent construction attorney in San Antonio. Her legal prowess is acknowledged by several prestigious directories and institutions, such as Chambers USA and Best Lawyers in America, highlighting her as a preeminent figure in the construction law arena.

Stephanie will be formally inducted into the American College of Construction Lawyers during its February 2024 meeting in Carlsbad, California.

Stephanie L. O’Rourke

About Cokinos | Young

Cokinos | Young has led Texas construction and real estate law for over three decades. And today, our 100+ dedicated professionals operate coast to coast and proudly handle all aspects of construction law for owner/developers, project managers, general contractors, design professionals, subcontractors, sureties, and lenders. We provide both dispute resolution and transactional services to clients through all phases of commercial, industrial, pipeline, offshore, civil, and residential construction. Our reputation was built on relentless commitment to client service and the industries we serve, and that remains our primary driver. Dedicated. Resilient. Expertise. That’s Cokinos | Young. Learn more at cokinoslaw.com.

We are Doing Good, But We Can Do Better – The Importance of Safety in Construction

Houston Principal Patrick Garner recently wrote the following article for the November edition of Construction News magazine. Here, Patrick discusses the importance of safety in construction.

“There are three kinds of lies: Lies, Damned Lies, and Statistics” — This famous quote has been attributed to Mark Twain, but no one really knows where it originated.

Regarding construction safety information, the majority of information comes from the Bureau of Labor Statistics (BLS) and according to the BLS, there were 5,190 workplace fatalities in 2021. More than 1,000 of those fatalities were in the construction sector. Furthermore, more than one hundred sixty-nine thousand two hundred (169,200) non-fatal construction related injuries occurred in 2021. However, that is not the worst part.

What is worse — the statistics only represent those incidents reported and recorded. Approximately 65% of incidents are never reported, recorded, or documented as a construction injury. That is a lot of lost time, lost productivity, and lost opportunity.

The good news is… We are getting better. The numbers are actually trending downward.

Construction sites are dynamic environments where skilled workers labor to bring architectural visions to life. However, amidst the hustle and bustle, it’s essential to remember that safety should always be the top priority. The risks inherent in construction work can lead to severe injuries or even fatalities if proper precautions aren’t taken.

Protect Lives and Livelihoods

The most compelling reason to prioritize safety on a construction site is to protect the lives of workers. Construction is inherently dangerous, with hazards ranging from falls, machinery accidents, electrical shocks, to exposure to hazardous substances. As shown above, nearly 20% of all worker fatalities in the United States occur in the construction industry. This alarming statistic underscores the vital need for stringent safety protocols.

Beyond preserving lives, safety measures also safeguard the livelihoods of workers. A construction accident can result in debilitating injuries that lead to extended periods of recovery or even permanent disability. This can have devastating financial consequences for both the affected worker and their family. Additionally, accidents can result in costly lawsuits and fines for construction companies, potentially jeopardizing the viability of the project and the business itself.

Enhance Productivity and Efficiency

A safe work environment is also a more efficient one. When workers feel secure, they can focus on their tasks without the distraction of worrying about potential hazards. This fosters a culture of productivity and professionalism. Conversely, when safety is neglected, workers may be reluctant to fully engage with their tasks, leading to reduced output and lower-quality work.

Moreover, a safe work-site minimizes the likelihood of accidents and disruptions. A single accident can halt operations for hours or even days as investigations are conducted and damaged equipment is repaired or replaced. This downtime can lead to significant delays in project completion, incurring additional costs and potentially tarnishing the reputation of the construction company.

Comply with Legal and Regulatory Standards

Adhering to safety protocols is not just a matter of ethics; it’s a legal requirement. Regulatory bodies like OSHA in the United States and similar organizations worldwide impose stringent safety standards for construction sites. Failure to comply with these regulations can result in severe penalties, including fines and even criminal charges in cases of gross negligence.

In addition to governmental regulations, many clients and project owners now require contractors to meet specific safety criteria as part of their contracts. Non-compliance can lead to the termination of contracts, loss of business, and damage to a company’s reputation.

Foster a Culture of Responsibility

Prioritizing safety sends a powerful message to workers that their well-being is valued. This fosters a culture of responsibility and accountability. When employees see that their employer is committed to their safety, they are more likely to take personal responsibility for their actions and the well-being of their colleagues.

Furthermore, when safety is a core value of a construction company, it attracts and retains high-caliber workers. Skilled laborers are more likely to seek out employers who prioritize their safety and well-being, leading to a more skilled and capable workforce.

Implement Safety Measures

Ensuring safety on a construction site involves a multifaceted approach. Here are some key measures that can be implemented:

  1. Regular Training: Provide comprehensive training to all workers on safety protocols, hazard recognition, and proper use of equipment.
  2. Personal Protective Equipment (PPE): Ensure that all workers have access to and are wearing appropriate PPE, including helmets, safety glasses, gloves, and harnesses.
  3. Fall Protection: Install guardrails, safety nets, and harness systems to protect workers from falls, which are a leading cause of construction accidents.
  4. Machinery Safety: Regularly inspect and maintain all construction equipment, and provide thorough training on their safe operation.
  5. Emergency Response Plans: Establish clear protocols for responding to accidents or emergencies, and ensure that all workers are familiar with these procedures.
  6. Site Inspections: Conduct regular inspections to identify and address potential hazards before they lead to accidents.
  7. Communication: Encourage open communication between workers and supervisors regarding safety concerns or suggestions for improvement.

Safety on a construction site is not a luxury but an absolute necessity. It protects lives, preserves livelihoods, enhances productivity, ensures legal compliance, and fosters a culture of responsibility. By implementing rigorous safety measures, construction companies can create a work environment that not only delivers high-quality projects but also prioritizes the well-being of your most valuable asset: your workers.

Houston Principal Patrick Garner is a trial lawyer with more than 26-years of experience handling litigation, administrative proceedings, arbitrations, and appeals in both federal and state court. His experience is handling matters involving commercial and industrial construction, construction safety, wrongful death, personal injury defense, premises liability, employment litigation and administrative proceedings, and commercial litigation. Patrick has handled matters all over the United States. 

Patrick is AV rated, a member of State Bar Litigation, Construction, and Labor & Employment Law Sections, as well as the Houston Bar Association Litigation, Construction, and Labor & Employment Law Sections. Patrick is a member of various professional organizations including: the College of the State Bar of Texas, Texas Association of Defense Counsel, Associated Builders & Contractors, Associated General Contractors of America, and the Society of Construction Lawyers – North America. He is admitted to practice in all Texas state and federal courts, as well as the Fifth Circuit and United States Supreme Court.


About Cokinos | Young

Cokinos | Young has led Texas construction and real estate law for over three decades. And today, our 100+ dedicated professionals operate coast to coast and proudly handle all aspects of construction law for owner/developers, project managers, general contractors, design professionals, subcontractors, sureties, and lenders. We provide both dispute resolution and transactional services to clients through all phases of commercial, industrial, pipeline, offshore, civil, and residential construction. Our reputation was built on relentless commitment to client service and the industries we serve, and that remains our primary driver. Dedicated. Resilient. Expertise. That’sCokinos | Young. Learn more at cokinoslaw.com.

Cokinos Continues to Advocate as a Friend of the Court and the Construction Industry

Pat Wielinski and the Cokinos | Young Insurance Coverage Group have recently filed an amici curiae brief on behalf of Associated General Contractors of America, National Association of Home Builders, and three of their local Florida chapters in Case No. 23-12715-F, Liberty Surplus Insurance Corporation v. Kaufman Lynn, Inc. before the United States Court of Appeals for the Eleventh Circuit. The brief was filed in support of Kaufman Lynn Construction, a general contractor, and addressed a troublesome issue as to the interaction of a course of construction exclusion and the extended completed operations coverage frequently found in controlled insurance programs (wrap-ups). These programs insure all participants on large construction projects. In this case, the district court declined to find a completed and occupied phase in an office project to be “completed,” thus denying coverage for property damage to the insured participants that were insured under the wrap-up’s commercial general liability policy. The brief argued that standard notions of completion within the construction industry and the insurance policy itself rendered each phase “completed” upon occupancy and issuance of a certificate of substantial completion. If you have any questions, please feel free to contact Pat at pwielinski@cokinoslaw.com. A copy of the brief can be found below.



Patrick J. Wielinski

About Cokinos | Young

Cokinos | Young has led Texas construction and real estate law for over three decades. And today, our 100+ dedicated professionals operate coast to coast and proudly handle all aspects of construction law for owner/developers, project managers, general contractors, design professionals, subcontractors, sureties, and lenders. We provide both dispute resolution and transactional services to clients through all phases of commercial, industrial, pipeline, offshore, civil, and residential construction. Our reputation was built on relentless commitment to client service and the industries we serve, and that remains our primary driver. Dedicated. Resilient. Expertise. That’s Cokinos | Young. Learn more at cokinoslaw.com.

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