STRUCTURE by Cokinos | Young is featured in the November issue of Austin/San Antonio Construction News. Founded in 1998, Construction News provides the local Austin and San Antonio construction industry with a publication that is entirely focused on construction personnel, companies, and projects covering the eight-county metropolitan region.
To view the November issue, click here.
Cokinos | Young is thrilled to announce the addition of Peter Wells IV, an established and accomplished trial lawyer who has joined our team as a Principal.
Peter’s vast array of experience in commercial litigation, including in complex securities and financial services, insurance, oil and gas, construction, maritime, trade secret, contract, business tort, employment, collection, professional liability, and personal injury matters speaks to his diversity and leadership in the profession.
“We are thrilled to have Peter join our litigation group here in Houston” said Cokinos | Young Partner John Warren adding, “I’ve known Peter personally and professionally for many years. He brings over 15 years of diversified knowledge and experience that will be a great addition to our firm.”
Congratulations to Gregory Cokinos for being named on to the Top 100 Super Lawyers® list and to the twelve Cokinos | Young attorneys for being recognized by Super Lawyers®.
Gregory M. Cokinos is named on the Top 100 Super Lawyers® list for both Texas and Houston for his work in Construction Litigation. Twelve lawyers spanning all of our offices have been named 2020 Super Lawyers by Thomson Reuters. This distinction is held by less than five percent of Texas lawyers and selections are made on a state-by-state basis. Independent research consisting of an evaluation of 12 varying indicators of professional achievement combined with peer nominations and evaluations are employed to determine this accolade.
The full list of Super Lawyers will be published in:
– Texas Super Lawyers Magazine, in October 2020
– Texas Monthly, in October 2020
– Gregory Cokinos will be featured in The Top 100 and Top 100 Houston lists
Our Super Lawyers include:
Gregory M. Cokinos – Houston
Construction Litigation
Top 100 Super Lawyers
Top 100 Super Lawyers Houston
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Marc A. Young – Austin
Construction Litigation
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Patrick J. Wielinski – Dallas
Insurance Coverage
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Stephanie L. O’Rourke – San Antonio
Construction Litigation
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Craig E. Power – Houston
Bankruptcy: Business
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John L. Grayson – Houston
Construction Litigation
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Roger D. Townsend – Houston
Appellate
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James R. Ewbank II – Austin
Business Litigation
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Russell W. Smith – Houston
Construction Litigation
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Robert J. Naudin – Houston
Construction Litigation
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Gabriel S. Head – San Antonio
Construction Litigation
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Dana Livingston – Austin
Appellate
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The Federation of Defense and Corporate Counsel just released their Fall 2020 online edition of FDCC Insights. This is a scholarly journal comprised of relevant and cutting-edge articles directly impacting defense and corporate counsel and industry professionals. The Fall 2020 issue included two C | Y attorneys:
Creativity in Litigation Strategy By John L. GraysonNot long ago, John Grayson represented a consortium of over 40 banks joined together to finance construction of a 32-story beachfront high-rise condominium project on the Texas Gulf Coast. After the building was topped-out and, according to the pay applications, was approximately 75% complete, the project was found to suffer severe structural problems stemming from abnormal differential settlement of the building’s core which had sunk 19 inches straight down. Major structural columns and beams had begun to crack, spall and crumble.
Typically in cases like this, threatening demand letters are exchanged and, eventually, a party files suit to collect on unpaid payment requests, foreclose on liens, alleges negligence, breach of contract or some other tort claim. While none of that is necessarily inappropriate, the typical course of action may not be the most efficient way to obtain relief for your client. We must be careful not to fall into the trap of thinking about, and handling, each case just like the one before. The point of this note is to encourage you to step back and creatively think of how to get your client where it needs to.
Mission Impossible? – When Coronavirus Threatens Performance By Shelly MastersIn just a few short months, much of the nation’s construction shifted from the critical path to a veritable mission impossible. The COVID-19 pandemic is impacting construction projects of all shapes and sizes in historically unprecedented and unanticipated ways. Public and private owners are postponing or canceling construction starts due to economic uncertainty and decreases in funding for public projects that rely on tax revenues.
Construction workforces already woefully deficient have been paralyzed by stay-at-home shutdown orders and quarantines of ill or exposed persons. Projects are slowed by new, unforeseen and cumbersome new safety protocols. Supply chains have been disrupted on a global scale. No construction project is immune from these widespread business interruptions. Contractors must now accept the mission – seeking to excuse contractual nonperformance either through force majeure provisions or common law defenses – a task that is not as impossible as it may seem.
The Trial and Appellate team of Jim Ewbank, Stephanie Cook, Tony Golz, and Dana Livingston scored a major victory for the Benevolent and Protective Order of the Elks of the United States of America, Inc., an established national organization, seeking to prevent member-factions from appropriating the Elks’ lodge property. In local lodges coast-to-coast, certain members have tried to claim “ownership” rights of lodge property. In Austin, the local lodge is located on prime real estate valued at over $4 million, with very desirable proximity to downtown Austin. Disgruntled former Austin lodge members left the local lodge, with the intent of taking the $4 million in real estate and over $250,000 in the bank accounts. The Elks sued the new member entity and the Austin trial court awarded the real and personal property to the Elks, including attorneys’ fees. This week, the14th Court of Appeals affirmed the decision, granting the Elks’ the land, cash, and attorneys’ fees. With this win, the Elks is “armed” with a Texas decision that factions cannot take long-held property for their own benefit. Great client victory with nationwide precedence!
James B. Ewbank II
Stephanie H. Cook
Anthony T. Golz
Dana Livingston
Russell Smith received Houston Business Journal’s 40 Under 40 Class of 2020 award. This award celebrates young professionals who have significantly contributed to their companies, their industries, and their communities. Recipients are chosen by an independent panel of judges selected by HBJ’s editorial team and candidates are evaluated based on professional accomplishments, community involvement, philanthropic efforts, and other exemplary qualities. Recipients of this award have proven themselves as leaders, and their gumption and tenacity are a model for generations to come.
Ryan Harrison, a Principal in our Austin office, is one of the recipients of the G. Duffield Smith Outstanding Publication Award. This award honors the authors of the most outstanding defense-related article published in For The Defense or In-House Defense Quarterly in 2019. Ryan’s articles “Winning with Experts Part 1 – How to Pick the Perfect Expert: Identifying, Vetting, and Selecting Experts” published in the For The Defense April 2019 issue and “Winning with Experts Part 2 – How to Deal with the Designated Expert: Retaining and Working with Experts” published in the For The Defense May 2019 issue, have achieved this highest standard. Ryan is receiving this award along with, Kelsey Osborne, who assisted with the articles. Congratulations Ryan!
Congratulations to Patrick J. Wielinski for being named “Lawyer of the Year” and to the eighteen Cokinos | Young attorneys for being recognized by Best Lawyers.
Fourteen Attorneys Honored as “Best Lawyers”
Four Attorneys Named in the Inaugural “Ones to Watch” List
Patrick J. Wielinski was recognized as the 2021 “Lawyer” of the Year” in Dallas/Fort Worth for his work in Insurance Law in the 2021 Edition of Texas’ Best Lawyers®. This recognition is given to one lawyer each year in each practice area and community. Best Lawyers is the oldest and most respected lawyer ranking service in the world. For almost 40 years, Best Lawyers has assisted those in need of legal services to identify the lawyers best qualified to represent them in distant jurisdictions or unfamiliar specialties. Best Lawyers lists are published in leading local, regional, and national publications across the globe.
Also, congratulations to the 14 Cokinos | Young lawyers listed in the 2021 Edition of Texas’ Best Lawyers®. Our 2021 Best Lawyers® include:
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Patrick J. Wielinski
Insurance Law
Litigation-Construction
Since 2008
2021 “Lawyer of the Year” for Insurance Law in DFW[/one_third]
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Gregory M. Cokinos
Commercial Litigation
Construction Law
Litigation-Construction
Since 2005[/one_third]
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J. Parker Fauntleroy
Personal Injury Litigation-Defendants
Since 2015[/one_third]
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John Grayson
Construction Law
Litigation-Construction
Personal Injury Litigation-Defendants[/one_third_last]
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John C. Warren
Construction Law
Litigation-Construction
Since 2019[/one_third]
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W. Patrick Garner
Construction Law
Litigation-Construction
Since 2020[/one_third]
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Charles Getman
Construction Law
Since 2019[/one_third_last]
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Roger D. Townsend
Appellate Practice
Since 2006[/one_third]
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Stephanie L. O’Rourke
Construction Law
Litigation-Construction
Since 2018[/one_third]
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Stanley W. Curry
Construction Law[/one_third]
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Jay K. Farwell
Commercial Litigation
Construction Law[/one_third_last]
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Stephanie Cook
Construction Law
Litigation-Construction[/one_third]
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Shelly D. Masters
Construction Law
Litigation-Construction
Since 2020[/one_third]
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Dana Livingston
Appellate Practice
Since 2008[/one_third_last]
Congratulations to the 4 Cokinos | Young lawyers listed in their inaugural edition of Best Lawyers: One to Watch.
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Christopher C. Wan[/one_third]
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Ryan Cunningham[/one_third]
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Kristi B. Hubbard[/one_third_last]
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James S. Richards[/one_third]
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Anyone following the news surrounding COVID-19 knows that the construction industry has been mentioned often, both because of its essential nature as well as the difficulties contractors and their employees face in executing work while observing required and recommended safety practices. Extensive discussions took place at the federal, state and local level regarding what procedures companies must follow to protect their employees and the public from the spread of the novel coronavirus. Many businesses have been in pandemic operations for months now, and much less discussed is what complaints are being made regarding the handling of coronavirus in the field. In short, how has the construction industry been handling its COVID-19 obligations, as evidenced by Occupational Safety & Health Administration data on complaints by industry sector?
Common Complaints Regarding COVID-19
According to one labor watchdog, Strikewave, the largest number of COVID-19-related complaints nationally, by far, are in health care, manufacturing and retail, respectively. When categorized by industry sector, construction is eighth on the list of COVID-19-related complaints to OSHA, both open and closed. Given the media coverage of the construction industry, that’s a positive sign, especially with construction operating as an essential business since the start of the pandemic.
That said, what types of complaints are being fielded in the construction sector in Texas? The most common are a failure to provide adequate handwashing stations or sanitizer, a failure to regularly clean and sanitize shared surfaces and areas such as bathrooms and a failure to establish and follow proper procedures for social distancing. Notably, each of the major metropolitan areas in Texas have issued orders regarding how to address these exact types of issues (e.g., Houston, Dallas, Austin, San Antonio). As complaints continue to roll into OSHA, inspectors are highly unlikely to accept excuses from businesses incurring these types of violations.
By contrast, businesses that have adhered to state and local orders should be commended, but they still need to be vigilant regarding the latest changes in the law. In addition to constantly evolving local orders, businesses that want to be aware of developments in best practices, as recommended by the federal government, can stay up to date by visiting the following sites:
Observing Your General Duty of Care
While the OSHA/CDC-developed booklet on COVID-19 guidance isn’t mandatory, part of an employer’s general duty of care, as mandated by OSHA, is to provide employees with a workplace free from recognized hazards likely to cause serious physical harm. Violations of an employer’s general duty of care are subject to enforcement actions and civil penalties. Deaths caused by willful violations of applicable regulations can also lead to criminal liability.
Although common understanding of the specifics of the coronavirus is constantly being updated, the threat of “serious physical harm” from COVID-19 has been established in OSHA’s eyes. Basic protections against the virus described in the OSHA/CDC guidance are a starting point for making sure that an employer is meeting its general duty of care. These include the oft-repeated messages to wear face masks, maintain at least six feet of social distance as appropriate, clean and disinfect common areas and shared surfaces and facilitate routine handwashing and sanitizing. In addition, some aspects of the OSHA-recommended guidance may be mandatory under separate state or local orders, as discussed above.
It is critically important not only to review and implement recommended guidance, but to prepare and update a written COVID-19 response plan that documents workplace protocols for prevention, triage and reporting of COVID-19. Doing so will help employers meet their OSHA obligations, and it will also help them understand what areas of the plan need improvement so that the company can be ready for unique issues that may arise when an employee contracts the virus.
Reporting COVID-19
Per OSHA requirements, covered employers must record a confirmed COVID-19 diagnosis that is work-related and meets general OSHA recording criteria. A condition is work-related if “an event or exposure in the work environment either caused or contributed to the resulting condition.” An illness involves OSHA general recording criteria if it results in days away from work or medical treatment beyond first aid, among many factors. A confirmed COVID-19 diagnosis in the workplace falls under OSHA general recording criteria because it requires days away from work. A determination of whether a case is work-related may be more problematic, but an employer is responsible for reporting a confirmed COVID-19 case if there is evidence that the spread may be work-related, such as a cluster of cases among workers in close proximity to each other, and that evidence was reasonably available to the employer. OSHA recently revised its FAQs to provide less public guidance on reporting than it previously had, leaving observers wondering if changes are on the way and serving as a reminder to be informed and aware of the latest updates.
Other common complaints made to OSHA since the start of the pandemic are the presence of coworkers with suspected COVID-19 symptoms or that an employee who was known to have contracted COVID-19 has returned to work. These types of complaints raise a separate issue. Employers have specific obligations regarding timetables for a worker’s return, and separate obligations to inform coworkers who have been in close proximity to someone with a positive diagnosis (without revealing the identity of the employee with COVID-19). A comprehensive response plan for coronavirus would not only address these issues, but would also provide for training of company employees to be aware of their expected adherence to safety obligations, how the company is handling diagnoses and the return to the workplace after recovery, and how employees will be informed of possible exposure.
With COVID-19 not going anywhere for the foreseeable future, administrative enforcement and litigation regarding workplace exposure are only expected to rise. Protecting your company and your employees goes hand-in-hand. As always, if you have specific questions related to your business’s handling of the coronavirus – whether developing written, preventative workplace guidance, dealing with documented exposure of employees or addressing litigation related to workplace exposure – it’s a good idea to reach out to an experienced lawyer for more assistance.
Patrick A. Caballero
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