Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Chair)]: Yeah. Me and January 30 for turning back to h five eight nine and activating to a six year statute retellings for actions arising out of improvements in the property. And we will start with we have several witnesses, and I'm asking folks to stick to, like, ten to fifteen minutes because some folks have to leave at 02:30, quarter to three. So we'll start with Adam. Osha, thank you for for being here, Adam. On the All right.

[Adam Osha (Senior Client Executive, OneDigital Insurance)]: Everybody hear me? Am I off mute?

[Rep. Martin LaLonde (Chair)]: Yes, yes you are. And if you could just identify yourself and

[Richard Rubin (Attorney)]: Yes, I

[Adam Osha (Senior Client Executive, OneDigital Insurance)]: will. Proceed. My name is Adam Osha. I work with one digital insurance. I'm an insurance agent. I have been since 2004, primarily working with construction contractors in the state of Vermont. My title is I'm a senior client executive, and our agency employs about 150 people in the state. On the statute repose, I'll open with what I feel like are two of the largest issues with not having it that I've seen in my twenty plus year career. The first is what I would, for lack of a better term, called a forward or future cost. In the last ten years, let's say,

[Rep. Kenneth Goslant (Clerk)]: specific to

[Adam Osha (Senior Client Executive, OneDigital Insurance)]: construction, there's a trend to cater towards a design build method where the contractor is responsible for the entire project from pen to certificate of occupancy. And when there is no statute of repose, they're really unable to quantify any of the costs, the legacy costs of that project once it's completed. And so, when that happens, for example, on a Vermont Agency of Transportation design build bridge project, as the agency of transportation for Vermont has gone to projects of this method. The taxpayer is hurt in the way of which it reduces the amount of bidders that can bid the project. And when you have a reduced bidders list, and reduced competition, typically, as we know, that increases costs. The other point of it being those that don't refuse to bid because they cannot quantify what their legal liability is for not having a statute of repose. They don't it's almost like bidding an incomplete set of plans where if you don't know you're bidding on a seven year or six year or, you know, some sort of a wall, then you have no choice but to estimate to the best of your ability what you think your wall is. So I start with that one, because I think for a lot of discussions on the statutory pose, we think of the tail of the liability, but I want to make it clear that there are certain is a certainly is an everyday cost to the Vermont taxpayer and everybody involved in construction on the front end of it on the bid side of it when we don't have a clear cut off to where the legal liability stands on construction projects. Number two is when it comes to construction projects that have been completed for many years. As it stands right now with no statute repose, the most recent situation that I've run into as an insurance agent would be one that went back to 2008. I had a situation where one of my contractors built a sidewalk, someone slipped and fell on the sidewalk. And they came after my contractor after they found out they had built it and and said they had built it incorrectly. It didn't meet the ADA standard. Ultimately, this claim was there was no, you know, everything went away. But that's not uncommon to have with no statute to have allegations come at contractors from many, many years ago, just to have that allegation come at them because there is a well, here we go. There's no statute. So let's try to find money from anywhere that we can. And the cost to that, not only incurred by the insurance companies that are then passed on to policyholders, but the cost to the actual contractor themselves for having to dig up documents that may or may not exist from seventeen or eighteen years ago, goes very deep in disrupting any daily organization, know, any daily workflows and, and, and them simply trying to complete their, their, their their jobs on a daily basis. So the impact of not having a statute of repose when we're having to look back at claims that might be twenty or thirty years, or shall I say allegations that are twenty or thirty years to simply have to defend that. And then even when you win, there's costs involved in that, that are hard to, you know, it's hard to put a pen to paper of the of that cost. But simply having to go through that is is is turning resources to something that should you should not have to do. It's absorbing resources that we should not have to do. Those are number one and number two. I think we also need to be cognizant of the fact that when a contractor in the state of Vermont goes to sell their business, how do they quantify the sale of that tail of liability as it currently sits today? How do you negotiate a price to someone who you want to transition your company to whether it be your kids, employees in the company, that can create a real burden to try to transition Vermont companies inside the state of Vermont. We're trying to grow our business here in the state of Vermont. We don't need a hurdle like this to disrupt the transition of family owned businesses that can't figure this out because there's no tail of liability wall. So it's, it's a very far reaching situation without having this statute, which probably is why we're the only state paired with New York that doesn't have one. Why that's the case is very strange. The next one down on my list would be once a construction once a construction project is built, the owner has insurance policies on that structure or legalize they have a liability policy for if they were responsible for a section of sidewalk, as I said before, there's already insurance that's out there to pay the claim. There is no gap. My fifth one would be simply to try to look at something like a statute repose that would lower the cost to our businesses in the state of Vermont. We're plagued in this state with having to increase bit cost to businesses on an annual basis, whether it be property tax, whether it be insurance, whether it be whatever it is. And this is one piece of legislation that we could look at, that actually would decrease the costs for Vermont businesses, specifically construction. Because when you are able to draw a line on where the legal liability stops for a construction building, insurance companies now can start to relieve premiums because they're also rating for no tail. Or if you have to buy additional insurance because you want to close your doors on your business, and now you have to buy twenty years of a liability policy because you don't know if a claim from 1925 is going to come at you. So it's, it's a very simple solution to strike out four or five of those things that I brought out or however many there were. And not only that, we can also help Vermont businesses lower their insurance costs.

[Rep. Martin LaLonde (Chair)]: Thank you. Questions? Come.

[Rep. Thomas Oliver (Member)]: Historically, have you seen and what what would be the usual reduction in in rates? Do you have any kind of idea if we put in a six year repost versus somebody that, you know, just has to carry unlimited liability insurance?

[Adam Osha (Senior Client Executive, OneDigital Insurance)]: Yeah, that that would vary depending on, you know, across the board, you could have some some, you could have some companies that might see see a decrease in cost of an excess of 25% pretty quickly. You may see others that might see a decrease of 10 to 15%. It really depends on the size and scale of each of those contractors, and how their current rating is with their carrier. Across the board, there's no question that you're going to see a decrease in premiums and, and I would go out there and say 20% would be kind of a middle of the road off the top, you know, for for these contractors.

[Rep. Martin LaLonde (Chair)]: Do

[Rep. Thomas Oliver (Member)]: you think this would help keep more contractors in business in the state of Vermont?

[Adam Osha (Senior Client Executive, OneDigital Insurance)]: I really 100%, you know, 100%. There's no question that contractors I it would encourage contractors to stay in business in the state of Vermont, it would encourage new contractors to want to do business in the state of Vermont. And as I mentioned in my opening, number one is, if you have a project out to bid, that's a design build project, it may attract more than three bidders, maybe now it's going to attract six or seven or eight bidders. And that in itself is a big win.

[Rep. Kenneth Goslant (Clerk)]: Thank you. Yep.

[Rep. Martin LaLonde (Chair)]: Other questions? Yeah, Tom. Kind of answered one of my questions. Was gonna ask you about unlimited extended liability and impact business I guess. But what what's the oldest claim that you've seen and and how long when when there is a claim, how long does it usually take to to go through the, you know, the process and and at what cost?

[Adam Osha (Senior Client Executive, OneDigital Insurance)]: The the oldest claim that I've seen was about four or five years ago. It was from a building that was built in 1982. And and that building had seen about 10 other contractors through it since 1982. And that in itself, you can start to understand the pile of files. These claims typically take two to three years to run their course. Two to three years. So very expensive process.

[Rep. Martin LaLonde (Chair)]: Right. Right. And be say to be fair to to the contractor and to be fair to the client, what number would you put on this?

[Richard Rubin (Attorney)]: Would

[Adam Osha (Senior Client Executive, OneDigital Insurance)]: put five years. I would put five years. And the reason is because in my experience, if there's actually a construction defect claim or something that's wrong, it shows its face in five years. When you get beyond five years, you're starting to really get blurry on was it the maintenance of the building? Was it just wear and tear that was natural? Five years is that is when we see something that was built wrong come to light.

[Rep. Martin LaLonde (Chair)]: Yeah, and I don't know why we have six, but it makes me wonder if it's, you know, if that's the same basic reason that we have six in the bill now.

[Rep. Kenneth Goslant (Clerk)]: Yep.

[Alan Parent (Senior Director of Business Development, PC Construction)]: Thank you.

[Adam Osha (Senior Client Executive, OneDigital Insurance)]: You're welcome.

[Rep. Martin LaLonde (Chair)]: The other questions, Ken.

[Rep. Kenneth Goslant (Clerk)]: If I hear New York is a a state that doesn't have this either? Yes. Are they the only other state besides Vermont?

[Adam Osha (Senior Client Executive, OneDigital Insurance)]: That is correct.

[Rep. Kenneth Goslant (Clerk)]: So the other timeframes in the other states that do have this, are they at five, six?

[Adam Osha (Senior Client Executive, OneDigital Insurance)]: They vary. They vary. I'm a specialist confined to Vermont. So I know Vermont. I believe New Hampshire is either six or seven years. But, but you're in that timeframe. Most others I think you would find are in that six to seven year timeframe.

[Rep. Kenneth Goslant (Clerk)]: You you also said that that usually, if there's a problem or something like that, it'll it'll show up in

[Adam Osha (Senior Client Executive, OneDigital Insurance)]: five years. Yes.

[Rep. Martin LaLonde (Chair)]: Okay.

[Adam Osha (Senior Client Executive, OneDigital Insurance)]: Exactly. Thanks.

[Alan Parent (Senior Director of Business Development, PC Construction)]: You're welcome.

[Rep. Kenneth Goslant (Clerk)]: What about injuries? What what what about something like that? Like you've said, I I think on this on on the sidewalk. Right? Yeah. Which and just just before you answer that, isn't what a sidewalk is completed? Is it that inspected and passed before it's completed?

[Adam Osha (Senior Client Executive, OneDigital Insurance)]: Yes, it is. Yes, it is. And you also have to and you also have to take into consideration when you're on the sidewalk, are you utilizing the sidewalk in the way in which it was meant to be utilized?

[Rep. Martin LaLonde (Chair)]: How do you prove that?

[Adam Osha (Senior Client Executive, OneDigital Insurance)]: That's part of the that's part of the problem, right? If you're walking down the sidewalk, and you've got size fourteen shoes on, and you should be wearing size seven shoes on new slip and fall, Why are we now coming back and trying to determine that there's an ADA compliance issue with a sidewalk?

[Rep. Kenneth Goslant (Clerk)]: You know, I asked myself many questions around here why when I can't answer them. So thank you. You're welcome.

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: Thank you for the testimony, and I appreciate the recommendation of five years. I think that's one of the pieces that we're struggling with is the year amount. I'm curious at the same time, if we went with higher amount, say ten, twelve years, would you continue to support the bill?

[Adam Osha (Senior Client Executive, OneDigital Insurance)]: I'm looking at it from a logical perspective. I know that within five years construction defect claims or something built wrong is going to show its face. I feel like if we go to ten or twelve, at that point, essentially, it becomes a punitive situation where why would we have it at ten and twelve when we know that what we're looking to get after is within the five years, I would have a I would support something more than nothing, obviously. But I think if we're really trying to take a practical logical approach to this, we should be staying within when a construction defect or design, something wrong with a construction project is really going to show its ugly face. And, And we know it's within that first five years, I would support six. But we know it's right there.

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: Thank you. Hi, thanks for your testimony. Can you tell me how you know?

[Adam Osha (Senior Client Executive, OneDigital Insurance)]: I've been in the insurance business for twenty one years, and I'm speaking on what I've seen come at me in those twenty one years and, and in most situations, a legitimate error in construction. Those come within those five or six years. Like I mentioned, I've had allegations that go back to 1982. I had to slip in this slip on a sidewalk that went back to 2008. Those are allegations, they weren't actually anything wrong with the construction at all.

[Rep. Kenneth Goslant (Clerk)]: Thanks. You're welcome.

[Rep. Martin LaLonde (Chair)]: Any other questions? Nazi, thank you very much, Adam. Really appreciate the testimony. And we'll go to Rob Higgins next. If you could identify yourself for the record, Rob, and proceed. Thank you for being here.

[Rob Higgins (President, Neagley & Chase Construction)]: Thank you. So good afternoon. My name is Rob Higgins. I'm with Negley and Chase Construction. I've been with Negley and Chase for twenty six years, I guess. Currently, I'm president of the company. We employ 50 or so people. We work all over the state of Vermont. We work in many different segments, manufacturing, retail, healthcare, education, multi family housing, and beyond. Obviously, I'm here in support of this legislation to add statute of repose. This is kind of a new experience for me, so bear with me if I go astray, but I figured I'd try to give you a little bit of my thoughts, and then maybe we have some questions and some dialogue. You know, kind of echoing some of what Adam had to say, I know that there's constant, you know, efforts and and, you know, kind of beating the drum in our state to welcome businesses, to be business friendly, you know, to support businesses so that we have places for our young people to work and to stay in our state. And I think that legislation like this, you know, is exactly what we need to kind of support that mission, so I applaud you folks for looking at this and working on this. As contractors, we take on all kinds of risks, challenging projects where out in the elements, battling environment, we have a declining workforce, material and labor price escalations constantly, funding issues, permit issues, it just goes on and on, and then you add on this indefinite generational liability, it's just, it's too much. It adds stress, it deters business, it adds costs. Adding a statute of proposed is just a great way to support business and still maintaining a balance of consumer protection. That's not going away, so very important to consider. Again, as Adam said, I support the six years, five years, great six years. My experience is the same as his. Typically a defect rears its head in that time, and quite honestly, there are signs much earlier if something's going on. Beyond six years, it's pretty difficult to assign liability, and like Adam said, was maintenance done correctly? Was the property misused? Were there additions or modifications? It's hard to assign blame to litigate against a claim or an allegation for a property that's really not been in your control for anything beyond that five, six year period of time. Five, six years is a good balance, like I said, of consumer protection and fairness. That's my perspective, and maybe folks have some questions, I can answer them.

[Richard Rubin (Attorney)]: Great questions.

[Rep. Kenneth Goslant (Clerk)]: Isn't there a statute of limitations in this business?

[Rob Higgins (President, Neagley & Chase Construction)]: Pardon me? Statute of limitations?

[Rep. Kenneth Goslant (Clerk)]: Yeah. It doesn't sound like it is, but I mean, and if there isn't, I assume this would go to Adam. Why isn't there? I mean, is that up to us?

[Rep. Martin LaLonde (Chair)]: So I can just weigh in real quickly. So if the defect is discovered, then the statute of limitations runs from that. You may not know that there was a problem or there may not have been an injury. It's like at the time of the injury that a statute of limitations would start. So yeah, there is a statute of limitations. I think,

[Richard Rubin (Attorney)]: I don't know if it's

[Rep. Kenneth Goslant (Clerk)]: a three year or six years.

[Rep. Martin LaLonde (Chair)]: Three statute of limitations. But it's actually, and that date starts running from the time the defect was discovered or the injury, be it property injury or personal injury.

[Rep. Kenneth Goslant (Clerk)]: So that's why we're trying to bring this in line with the six year limit on it.

[Rep. Martin LaLonde (Chair)]: Well, that's a little bit different. It's essentially saying that in those six years, anything after those six years, you can't bring the case at all. Statute of limitations doesn't even apply. Because we figure there's been that much time, at least the simple theory behind the statute of the post, that, and what we're hearing from these witnesses, is it becomes more difficult for a defendant after that some period of time to actually fairly defend themselves. Because records may have been disappeared. There's a question of maintenance. There's all those things. So that makes sense? Yep. And we can have more people weigh in on that. But that's, yeah, there is a statute limitations, but it's a little different.

[Rep. Kenneth Goslant (Clerk)]: Thank you. Thank you.

[Rob Higgins (President, Neagley & Chase Construction)]: Yeah. And you're right. We had one allegation a bit ago about a building that had been occupied for sixteen years, and there was some rot detected, wood rot detected in an area of, like, a portico deck area, and this was a place where roof water from roofs above shed to this deck, there were drains in place on the deck designed to convey the water away, and there's some rock detected after sixteen years. So it's questionable, right? Did they put furniture over the drain? Did they clean the drains? Was the proper maintenance done? Who knows? That allegation comes forth. There's no documentation left anymore. The people that work at my company are no longer with us. The people at the design firm are no longer. There's no collective minds to pick here. It's very difficult, if not impossible, to assign blame, and it's costly to litigate.

[Rep. Thomas Oliver (Member)]: On the building in six years.

[Rep. Martin LaLonde (Chair)]: Right. So where is that?

[Rep. Thomas Oliver (Member)]: Yeah, that's June 2029.

[Rep. Martin LaLonde (Chair)]: Oh, our slavery Sorry. I don't know if you can just drop that. There you go. The court has found that law to be a violation of the thirteenth amendment because it's our land improvement and home improvement fraud law. We are dealing with that right now. But it was found because one the penalties is that you have to do the work to like remedy and that actually is servitude, and that violates the thirteenth Amendment. Not proud of the fact that I worked on a bill that violates the thirteenth Amendment, according to court. But I digress. Any other questions for Rob? Not seeing any, so we'll go to the person on the Zoom, so I'm gonna skip Alan, we'll come back to Alan, but we'll go to Chris next, if you could identify yourself for the record and proceed.

[Chris Huston (Vice President of Preconstruction, ReArch Company)]: Excellent, thank you all for having me. My name is Chris Huston. I'm Vice President of Preconstruction at ReArc Construction. I've been in the design and construction industry for thirty five years now. My perspective is somewhat unique as I'm also a licensed architect. At ReArc, I'm not practicing architecture, but this issue was near and dear to me when I was practicing architecture as well. So we are construction, we're a commercial construction management firm, we're located in South Burlington. We have additional offices both in Lebanon and Portsmouth, New Hampshire. Like Rob and his company, deal in all of the market sectors that fall under commercial construction. We've got about 85 employees and we've been in business since 2003. And we also have ReArc Properties, our sister company that focuses on development in Vermont and New Hampshire. And in that company we manage over a million square feet of space. As we're talking about these maintenance issues and how they relate to the statute of repose, it's a really interesting topic. I will note that I provided some written bullets prior to this morning, and I don't know, many of my points are already articulated by Adam and Rob. So I'll really run through these reasonably quickly to then allow more time for questions. I think one of the biggest things we find is that simple predictability and stability. As Rob mentioned, our industry, the construction world has become frankly more risky in the last five to ten years. It's become more challenging. As Rob mentioned, subcontractor pool is sort of tightening up and so on. Underlying all of that is construction. So many of our projects are very hopeful and we provide the cost estimates and we do the best that we can to mitigate costs and look for value savings only to find that the performance on many of the projects just simply don't work. And one of the things that we found since we bid work outside of Vermont, we looked at a housing project in Newburyport, Mass. Very nice quality project. It bid for approximately 25% less than what we build our multifamily housing projects for here in Vermont. And a bit of that certainly is the nature of the subcontractor market and so on. But this statute of repose absolutely creates a burden of cost, as Adam had mentioned from the top. So the predictability and stability is an issue, the economic benefits really creating a market that anything we can do to reduce the cost of construction is really a benefit, frankly, for all of us who design and build in the state of Vermont. It'll help encourage investment in our state, we believe firmly. We're working with a developer from New York City on a large housing project right in Burlington. And they are very surprised at how expensive it is and how difficult it is with all the permitting hurdles and all the layers that we have to deal with in front. They were surprised at just how challenging it is to work here. And they do work all over the country. Really, as Adam mentioned, the consistency with our neighboring jurisdictions, It's puzzling why we're only one of two states in the country that does not have any statutory repose. Judicial efficiency, obviously with fewer claims, it really will help with resources and so on. So in summary, implementing a statute of repose really could enhance Vermont's business climate and particularly in the construction industry. It really providing clearer parameters in regards to legal parameters, reducing financial burdens, and making us a more attractive environment for investment in construction projects. With that I'll open it to questions.

[Rep. Martin LaLonde (Chair)]: How

[Rep. Kenneth Goslant (Clerk)]: does this proposed bill that we have here, how does this compare to like New Hampshire?

[Chris Huston (Vice President of Preconstruction, ReArch Company)]: Yeah, New Hampshire, as Adam mentioned, I think that they are in the five to seven year timeframe.

[Rep. Kenneth Goslant (Clerk)]: And is this proposed bill, is it modeled basically the same set of statues as they do? I mean, we got pretty much similar climate.

[Chris Huston (Vice President of Preconstruction, ReArch Company)]: Right, similar climate. We Frankly, we share a lot of subcontractors, both our work in New Hampshire uses some Vermont based subcontractors do work in New Hampshire and vice versa. So I believe that they are similar, but I frankly don't have the detail to speak definitively to that question.

[Rep. Kenneth Goslant (Clerk)]: Okay, thank you.

[Rep. Martin LaLonde (Chair)]: Other questions? I think you're catching us on Friday afternoon and already have been getting, I mean, very good testimony to understand where you're coming from on this. So we'll then I guess move to Alan. And did you submit that? Did you email Chris at that? Who did you email your comments to? Because we make sure that we get them posted. It's posted online. It's already posted. We're all set. All right, we're all set. Thank you. Absolutely. Identify yourself for the record and proceed. Thank you for coming to town.

[Alan Parent (Senior Director of Business Development, PC Construction)]: Absolutely. Thank you for having me. I I brought carding gifts too. My name is Alan Parent. I'm from Georgia, Vermont, and I represent PC Construction Company in South Burlington. I'm the senior director of business development for PC Construction. So I like to tell people, and that's why I brought the gifts that I'm kind of like the CEO of BS at the company. Although what I have to say is definitely not BS. It keeps in line with everything you've kind of heard already. I'll try not to recover some of those. PC has been in business for sixty eight years. We are the largest contractor in the state. We have about 500 employees, just over 150 of those are stationed here in Vermont like I am. We're in a 100 employee owned company. So the things that affect us as a business affect us as owners as well. We have offices up and down the East Coast, primarily the East Coast. And we do contracts from $70,000 to over $700,000,000 So quite a range of business and types of markets we're in that you'll definitely get to learn more about as you read through our brochures. But 72% of the business that we do as a company is for repeat clients. So, and I'll come back to that at the end. It's an important fact, I think for us and kind of for the market in Vermont. I'm sure I can almost guarantee you the contractors that spoke before have a similar type of repeat clientele. So, and we're also, we also do work for the state of Vermont. We just won a project at the Vermont VTrans, the AOT District six parking garage. You're going to hear and you have heard some of the kind of overarching reasons why, you know, a statute of oppose is important. I'm not gonna kind of go over that. You know, I'll speak more about some of the real life issues that I kind of feel are important. And it was said before, maintenance is a big thing that is hard to, you know, catalog, quantify, what have you. Changes in the structure over the years, you know, maybe an engineering failure that, you know, is hard to identify after years. And certainly environmental issues, you know, whether, you know, Vermont zero degrees on the way here this morning. I do have a real life specific item though that I do want to talk about for us. I went back and talked to some people in our company about this bill and how it affects us. We had a claim recently in the last five years or so for a building that had been built twenty years previously. So the claim was that there was a sprinkler failure and there was a good deal of flooding in the building. And so we obviously, you know, do our due diligence and we were certain it was not our lack of, you know, construction practices. We had built the buildings of plans and specs, the building had been inspected by the owner. We, you know, we have rigorous QAQC program. So, but it was, you know, in that these claims specifically, there's a condominium building, so building full of condos, high end condos and a ski resort. All the, you know, people that were affected, the homeowners, they were paid through their policies. So they were made whole. What happens often in these cases is that insurance company will, you know, maybe not politically correct, say, look for deep pockets. And at this time, I suppose we were the best opportunity for them to recover on their outlying of, to make those units repaired. Know, they came after us through this law after twenty years and it was, it's very hard for us to, you know, kind of go back and prove something that may not really be provable. So, and that goes back to that year limit that, you know, you are kind of searching to understand. For me, the answer to that is, as a twenty five year employee of piece of construction, a lot of times it comes back to what people knew, going back to the resource of human beings that worked on the project, and then the plans and specs that we have on file, if they're still on file and so on, is really how you start to build your defense that you did indeed build this structure appropriately. So as a larger company, we we chose to settle this claim. Was a rather large claim. We chose to settle it, which, you know, is obviously disappointing for us instead of, you know, a prolonged, you know, fight in court at the time. Because if you think about it for us, we're in the business of building. Let's say you're in the business of running a gas station, your cashier is working, we would have had to take that cashier off the front line, put him into fighting the claim. Our people come to work each day to build, not to fight claims. It's not just the cost of potentially losing, it's the cost of lack of business that those people can be doing on a day in, day out basis. So regrettably, we had to, you know, just settle and move on from that. So getting back to the 72% of repeat clients, which, you know, like I said, I can guarantee you friends in the business have the same. It's a small state. You know, we gain our future work most often through our reputation. So, you know, there's I know of an instance where we went back to a building that had an issue with windows that, you know, we actually felt was probably not our an issue of our company was rather an issue about the detail of how that was designed, but we chose to help fix that out of our own pocket, coupled with the owner. Because we're in a small state, we do things to make things right. So to that end, that gets back to that 72% of our clients helping repeat and being a small state. For us, we have a big pool of business outside of the state, probably you know, around 75% of our businesses out of state. As a whole, we lump our costs, you know, kind of in a bucket, if you will, not just what we do in Vermont for our insurances and so on. So will this affect us financially? Certainly it can. Certainly our insurance, you know what, while it may not come down, you know, it does give us a level of assurance going forward when we do business. But, you know, I personally feel this isn't PC talking, this is myself that for me, this is much more appropriate bill that has effect on smaller businesses, you know, The company that's starting out of their garage, a plumber and electrician that doesn't understand that this can come back on them and a claim like ours could wipe out a small business overnight. Certainly not us, potentially, hopefully, there's nothing that big that could wipe us out, but it certainly could affect smaller businesses in the state very, very easily. So that's my testimony, take any questions.

[Rep. Kenneth Goslant (Clerk)]: Okay. I just want to back up. You said you settled on a sprinkler system, correct?

[Rep. Martin LaLonde (Chair)]: Yeah. Was this in Vermont? It was, yes.

[Rep. Kenneth Goslant (Clerk)]: Did you do the sprinkler system or was it subcontracted?

[Alan Parent (Senior Director of Business Development, PC Construction)]: We were the general contractor. It was subcontracted. Isn't a

[Rep. Kenneth Goslant (Clerk)]: sprinkler system design or or approved to be installed per state specs?

[Alan Parent (Senior Director of Business Development, PC Construction)]: Certainly, there was a set of plans and specs for that installation that we followed, designed for most likely by registered engineer, professional engineer. So

[Rep. Kenneth Goslant (Clerk)]: think I just went through this a little bit. Doesn't the state have to come in and you do a suppression test and you do all this stuff here and before that building is is put in use for lack of better words. Yeah. The state has to approve that, don't they?

[Alan Parent (Senior Director of Business Development, PC Construction)]: They certainly do representative, you know, typically there is a yeah, a pressure test and, and there's, you know, in the specifications, there's like QA QC process to start that up and ensure it's, you know, it's usefulness. So bottom line is, with all this stuff and going and settling

[Rep. Kenneth Goslant (Clerk)]: just to move on with it, bottom line is the end consumer is the one that's going to pay these prices, whether it's a rental unit, whether it's your cost of rent is going to go up, it's like what we're dealing with here with landlords and tenants. If you raise a price of what it costs a landlord to go and do business, the tenant's gonna pay more. I mean, that's the same in your business. Correct?

[Alan Parent (Senior Director of Business Development, PC Construction)]: We are a for profit company.

[Rep. Kenneth Goslant (Clerk)]: Yeah.

[Alan Parent (Senior Director of Business Development, PC Construction)]: You know, we we certainly cannot, you know, we we bundle the costs and we put them in our projects through a bid or, you know, a fee if if if if it is and, you know, I mean, we we are a for profit company for sure.

[Rep. Kenneth Goslant (Clerk)]: And all this stuff goes and adds up the cost cost that the end user more money.

[Alan Parent (Senior Director of Business Development, PC Construction)]: You have to make your profit the same business to pay your employees and all that. Absolutely representative. And, you know, the issue with not having this law is it's actually a a cost that's not really recoverable. So we don't have we can't place a on our estimated department for many years and we never said at bid time and let's throw on another thousand dollars for statute of repose, having that law in Vermont. There's no way to quantify this, not having this law. Quantify it for that instance by after twenty years, you know, those costs are gone. We have to recover that to pay the, you know, that claimant or that fee or whatever, you know, whether we settled, it had to come out of our profit for that year, basically, or our insurance pool. I'm not exactly sure. But that means that insurance pool went down and had to be reimbursed through the next several years.

[Rep. Kenneth Goslant (Clerk)]: Are are you okay with the proposal of six years in this bill?

[Alan Parent (Senior Director of Business Development, PC Construction)]: I certainly am. And, you know, personally speaking, you know, being part of some, you know, items that had been you know, I've been with the company twenty six years, so I've been part of some fixes that were past, you know, past a couple years. And it really comes down to, like I said, having people that were around during that construction coupled with the plans and specifications that we know of or as built. And the further that goes out, the harder it is to bring that back to life, if you will. It gets really hard to, you know, kind of, you know, go through that that process. So, you know, we would be happy with the slopping past, that six years, you know, if it was more, we'd probably be happy with that too. You know, if you think about your own house, you know, if you've lived in it for ten years, can you remember what you did to it in some, you know, paint, go down the basement, you try and find it, you know, it's like, oh, what was that color? Who the heck knows what that color was? You know, I'm not gonna able to patch that paint when I move that picture or whatever. So it's not totally dissimilar for us.

[Rep. Kenneth Goslant (Clerk)]: Okay, thank you.

[Rep. Martin LaLonde (Chair)]: I laugh because I'm painting my house. The way I look at the system now, it's kind of, way I look at it is it's an unlimited warranty on a project or building and unlimited lifetime warranty. And so what's going through my mind is I think I've seen PC on construction cranes. Maybe. Maybe. Okay. Okay. So I I I'm gonna assume you guys own some some pretty big expensive equipment that's probably the size or the cost of a pretty good sized building. We'll put

[Rep. Kenneth Goslant (Clerk)]: it that way at time. What what

[Rep. Martin LaLonde (Chair)]: is a warranty on a big expensive piece of equipment? It it probably varies depending on what it is and

[Rob Higgins (President, Neagley & Chase Construction)]: and that type of thing. But

[Alan Parent (Senior Director of Business Development, PC Construction)]: Yeah, it's a good question. Don't have the exact

[Rep. Martin LaLonde (Chair)]: Okay.

[Alan Parent (Senior Director of Business Development, PC Construction)]: Yeah, it probably also depends what you buy with it, You can buy long term policies, but on equipment, you know, it's they're they're probably a lot in the same situation we are about repeat clients. Let's say an excavator dealership local in South Burlington, we buy a piece of equipment, a hose breaks a couple months after we buy it. We say to them, Well, we think it was faulty, and they probably say, You know what? Just come on and get that part, we'll give it to you, right? Because we're sharing We're business clients with each other and they want to make us happy. At some point, they definitely could say, well, it's out of

[Rep. Martin LaLonde (Chair)]: a warranty if it's a year. Full transparency, asked the question kind of knowing the answer because I used to be a partner in a tree company, we used to buy cranes and buckets and trucks and chippers and that type of thing. And those warranties on really expensive equipment don't go past five years and they're limited at that.

[Alan Parent (Senior Director of Business Development, PC Construction)]: Yeah. Then And when something comes up, was it really under the warranty or not? You got approved? Well, lot of

[Rep. Martin LaLonde (Chair)]: times, if something simple broke, we could fix it. That's it, other than driving it down to Connecticut to Yeah. Out of state.

[Richard Rubin (Attorney)]: Other questions? So I think I have a question.

[Rep. Martin LaLonde (Chair)]: I don't know if I'm looking at actually the language of the bill. And I don't know if any of the witnesses can weigh in on this. And it's specifically in subsection C. I wanted to know if that subsection makes sense. In particular, talk about in the case of a phased project with more than one substantial completion date in a six year period of proponents, where actions involving systems designed to serve the entire project shall begin at the substantial completion of each phase. Is that how things work? Anybody follow that? Have you looked at the language and that actually makes sense?

[Alan Parent (Senior Director of Business Development, PC Construction)]: So the projects getting larger, we do a lot of larger projects that are phased very often. And, you know, a lot of times our warranty on equipment and and that portion of projects we we try and break up the phasing so we can start the warranty when the an owner takes beneficial use or occupancy of a certain section. So that's how we do it with with our warranty on the items that are within the building personally. That's how we try and do it. If an owner is taking beneficial use or occupancy, we try and start the clock at that point.

[Rep. Martin LaLonde (Chair)]: So when a project is phased, if you finish a phase, it's more or less signed off on.

[Rob Higgins (President, Neagley & Chase Construction)]: Correct.

[Rep. Martin LaLonde (Chair)]: And the stat and the the statute of repositions or period starts with that particular phase. When the whole project is done. And you're comfortable that that's what the language means. I see people nodding their head. So okay. There had been just a little confusion last week about that.

[Richard Rubin (Attorney)]: I just

[Rep. Martin LaLonde (Chair)]: wanted to know. Other questions? Yes, Angela and Ben Karen. I'm

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: going back to the insurance. If I could ask you another question, Adam. Sure.

[Rep. Kenneth Goslant (Clerk)]: Yeah.

[Rep. Angela Arsenault (Member)]: A couple of years ago, we dealt with Vermont's dram shop laws and liquor liability insurance. And the folks who were seeking liquor liability insurance and having a very hard time acquiring that insurance were quite sure that changing our law would really change that situation for them, that it would be much easier to get insurance and hopefully at lower rates. I don't know that that ever fully materialized the way that they were hoping. So I'm wondering, given your experience in the field, what makes you so confident that changing the law would pretty dramatically change the

[Adam Osha (Senior Client Executive, OneDigital Insurance)]: Yeah, it's a little different situation because most contractors, if not all carry excess liability policies. And so when you don't have a statute of repose in Vermont, how much excess liability do you carry? You probably will carry more than if you had a statute of repose in Vermont. So instead of a contractor carrying maybe a $20,000,000 excess policy or a $10,000,000 excess policy, they may decide if they have a statute repose, they need a $5,000,000 excess policy. So it's a little different, because it's not simply just a rate thing. It's simply it's it's also a totality of an insurance bucket thing. Because when it comes down to a general liability policy, that general liability policy has an annual aggregate limit. So if you're trying to figure out, all right, I gotta maybe I've got a claim this year, but do I have to factor in a claim from twenty years ago, like how do I buy this limit? You're gonna probably buy more limit than you need if you don't have a statute of repose out of the fear factor of what happens if three come in that same year and I start to upset my aggregate limit. So it's a little different than the liquor thing.

[Rep. Angela Arsenault (Member)]: Okay. And so that it's a it's a

[Adam Osha (Senior Client Executive, OneDigital Insurance)]: it's a double barrel approach.

[Rep. Angela Arsenault (Member)]: Yeah, it's a choice made by the companies. And that extra coverage could be as much as 20% more.

[Adam Osha (Senior Client Executive, OneDigital Insurance)]: Yeah, on top of that, exactly. And then and then when you look at the totality of it is, you know, in that same in that same breach, you have a business that they they want to they either want to transition their company or they want to close their doors, you've got the additional insurance costs of instead of carrying an additional liability policy for six years, do they now carry it for sixteen years? Right. So it's, it's much more far reaching than just one line of insurance, right? It's it's everything is impacted here.

[Rep. Angela Arsenault (Member)]: Thank you.

[Richard Rubin (Attorney)]: You're welcome.

[Rep. Martin LaLonde (Chair)]: Okay. What

[Richard Rubin (Attorney)]: the question means? Right. Yeah.

[Rep. Kenneth Goslant (Clerk)]: I showed up at this place. There was a a big housing complex that was built in Berlin that I attended that I think I think your firm did that. That's a commercial property that is I believe has something to do with Vermont housing, if I'm not mistaken. Every bit of that had to be approved by, by Vermont law. Correct?

[Rob Higgins (President, Neagley & Chase Construction)]: Yeah. Yeah. It's inspected throughout every phase of activity. Yeah. The the subgrades are inspected. The foundations are inspected. The framing is inspected, the electrical and mechanical rough ins are inspected before you sheet rock. Everything is, yeah, inspected thoroughly

[Richard Rubin (Attorney)]: by third party.

[Rep. Kenneth Goslant (Clerk)]: So even though everything is inspected by the state of Vermont, it can still come back and you guys assume?

[Rob Higgins (President, Neagley & Chase Construction)]: Correct.

[Rep. Kenneth Goslant (Clerk)]: Thank you.

[Rob Higgins (President, Neagley & Chase Construction)]: Yeah.

[Richard Rubin (Attorney)]: Hey, thank you very much, Alan. I appreciate it.

[Rep. Martin LaLonde (Chair)]: Thank you. Do you want to just keep plugging through our last witness, or do we need a break? I'm looking at you, Kevin.

[Rep. Kevin “Coach” Christie (Ranking Member)]: I like this. I'll sit. Alright,

[Rep. Martin LaLonde (Chair)]: Kristen, you can join us. Thank you for being here. Kristen, thank you for being here. Just identify yourself as

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: Good your afternoon, everyone. Hello. My name is Kristen Ross, and I am the immediate past president of the Vermont Association for Justice. I'm also an Upper Valley lawyer. I went to St. Michael's College in Vermont Law School and have been practicing law in Vermont and New Hampshire for over fifteen years. And so I'm coming here because New Hampshire does have a statute of repose, and folks have talked about it and have familiarity with it. And I thought it would be helpful because I have some actual example of how the statute of repose really works in New Hampshire and what it would look like if we had that same thing in Vermont. So I wanna give you an example. So the statute of repose in New Hampshire is eight years, to answer that question. It is very similar in language to what you guys have proposed in Vermont. I have a current case right now that involves the big YMCA, the new YMCA that was built in Keane, New Hampshire. It was built in 2011. Major construction company was in charge of the problem. Big architect from Boston was in charge of all the specs and the codes. It was a glass installer. Well, guess what? This building has a huge gymnasium, rock walls, daycares, climbing centers, and there's glass all over the building. And there's glass all around the gymnasium and that activity area. And according to all the specs and all the codes, it was supposed to be safety glass. Understandably, right? The glass installer installed plate glass. Regular, old, very, very scary plate glass. In a humongous, very expensive building, despite all of these well intentioned folks and all of these codes and all of these safety procedures, plate glass was installed instead of safety glass. In 2023, twelve years later, my little teenage kiddo was playing basketball with a group of friends, went for a ball, went right through the glass, suffered horrific injuries, almost bled to death, is permanently disfigured. The glass installer who puts plate instead of safety, the architect, the construction company, everybody who knew that building should have safety glass, and it wasn't there, all of them are off the hook. There is zero responsibility for any of them under the law, because guess what? It happened twelve years after the building was construction, constructed not within the eight. And that is just an example of how things can go wrong despite everybody's best intentions, and how people can be hurt really, really bad. And we heard a lot of testimony about these things come up in the first five or six years. That is just not my experience. We constantly see things happening after that, and I have some other examples to talk to you all about today, But I just wanted to start to give you that New Hampshire example so you could just have a sense of how this can work in the real world. Should I keep going? Did you have a question?

[Rep. Kenneth Goslant (Clerk)]: Yeah. Do. Sure. First of all, that's horrible to hear. Sorry about that. Just

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: Thank you.

[Rep. Kenneth Goslant (Clerk)]: Closed my mind. But the state had to inspect that.

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: I'm sure the state did inspect it. Absolutely. Despite inspections, these things happened because until that glass shattered and rather than shatter as safety glass shatters, it shattered like plate glass, which was shards. Yes. Until that happened, no one knew that they the glass installers had installed plate, not safety. So things slipped through, even the best inspections.

[Rep. Kenneth Goslant (Clerk)]: Gotcha. So even so that happened after

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: Sir.

[Rep. Kenneth Goslant (Clerk)]: After those years

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: Twelve years.

[Rep. Kenneth Goslant (Clerk)]: The estate's still not on on

[Rep. Martin LaLonde (Chair)]: the hook?

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: No, sir. And most importantly, and what is most shocking to me and to my clients, is that the glass installer isn't on the hook. I mean, this wasn't to cope, and it happened twelve years after. And that's what just these things do happen and real serious harms can occur. And it definitely doesn't always happen in five to six years. So why does Vermont not have a statute of repose? Right? That's a great question. And we heard about how Vermont and New York are the two states that don't the thing is, Vermont sort of rocks in that we have a lot of protections for our folks. And we have a constitution that says every Vermont citizen should have a remedy under the law. That's article four of our constitution. Let me read it to you. Every person within this state ought to find a certain remedy by having recourse to the laws for all injuries or wrongs which one may receive in person, property, or character. Every person ought to obtain right and justice freely and without being obliged to purchase it, completely and without any denial, promptly and without any delay. And what this is, folks, we can call it a statute of repose. This is an immunity bill. This is an immunity bill, and this is a sweeping immunity bill. And I want to talk to you about that, because what's happened, what you have to decide is if you pass this, you are going to just right off the bat, take away all of the rights and protections for an entire group of Vermont citizens, which is guaranteed to them by the Vermont constitution if they suffer injury to their person or their property after six years. And so Vermont has protections for its citizens. We have these strong constitutional protections. We haven't passed a statute of repose for these reasons. The Vermont Supreme Court in the University of Vermont versus a Grace case, which is from 1989. I want to read you this quote from the Vermont Supreme Court, because I think it helps understand this issue between the statute of limitations, the discovery rule and the statute of repose. Those are all legal terms, right? They work together. They mean different things. And I sort of just want to make sure we all understand what they mean. Under normal circumstances, under the law, if you suffer harm, you have three years from the date that you knew that that happened to you or you should have not to do something about it. The discovery rule is that you should have you you figured it out. Right? Because sometimes people something happens that people don't know. So do when you know or when you discover that something bad has happened and you have a legal claim, it's not that people have unlimited amount of time to go to court and trying to get a redress for their harm. They only have three years. Okay? And so what a statute of repose does, though, is it absolutely eliminates the typical statute of limitations, and it eliminates the discovery rule, because it says it doesn't matter that you didn't know. And this is why the Vermont Supreme Court rejected an argument, and I just want to read you this quote. One cannot maintain an action before one knows there is one. To say to one who has been wronged, you had a remedy. But before the wrong was ascertainable to you, the law stripped you of your remedy. This makes a mockery of the law in Vermont. And what the court is trying to explain is if the plaintiff doesn't know, then they never got the chance. You're just taking it away from them. And that's what a statute of repose is. And it's a balance. You have to right? And we heard we heard from the contractors. We understand. Like, these are real issues that they're trying to grapple with. So but you also have Vermonters who can be subject to serious harms, and you have to balance those interests. In a statute of repose, the statute of limitations in the discovery rule are examples of how the law balances those. They actually are protections for defendants because you only got three years after you know that you've been harmed. If you don't get on it, then a defendant isn't going to be subject to a lawsuit. And so we do have already some protections under the law for defendants. A statute of repose takes those away. So it's a pretty big deal to have a statute and certainly to have a statute as quick as six years.

[Rep. Martin LaLonde (Chair)]: Can please hold on? Oh, sure. I was just wondering, I think I know the answer, but why isn't there room for, like, with the injury you were talking about with the glass? Why can't there be a civil case problem?

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: Because in New Hampshire, the statute of repose says that if that injury didn't happen within eight years of the day that the building was built, there is no claim whatsoever. You are looking at passing a similar law in Vermont that says if it doesn't happen within six years that the day the building was built, there was no claim whatsoever. My kiddo went through the glass twelve years after the building was built. That's why. It's just there is no claim, period. It doesn't matter how bad the facts are. It doesn't matter how egregious the negligence was of the installers. There's just no claim, even though no one knew. No one knew until this happened in the law. Normally, your statute of limitations would apply. So once my kiddo went through the glass, I typically would have had three years to bring that claim. But in New Hampshire, and it would be in Vermont if you pass this, there's just no option whatsoever, which is why I call it a sweeping immunity bill. The other thing is I just want to remind folks, and I heard a couple of gentlemen give examples, unfortunately, of claims that they had to defend, and it sounded like they defended those successfully. And when I'm hearing that, I'm thinking, man, our system worked. Right? It stinks that you guys got a claim made against you, but the claim resolved as it was. And that's why we have a really great civil justice system in Vermont. And if the two parties can agree and work it out, which, by the way, like, 9% of the time, they do. Jury trials are really rare in the state of Vermont. If you gotta go to a jury, though, then you ask 12 Vermonters. What is fair? And I just wanna remind everybody, the person who is harmed, who's claiming harm, whether it's injury or whether it's just economic losses, they've got a $100,000 problem foundation, whatever it is, they have to prove it. The contractors, architects, plumbers, electricians, glass installers, they defend the claim, but they don't have to prove what they did was okay. It's on the person coming into court. We have to prove that what was done was negligent. And that's the other thing. We talked about warranties. And sir, you mentioned the warranty with your equipment. And I just want to be really careful about using the term warranty because that is not actually what we're talking about. So when it comes to civil liability, there's really like two groups of cases. There's strict liability and negligence. Strict liability means we're just gonna hold you responsible no matter what. It doesn't matter if you didn't do anything wrong. If something happens, you are strictly liable, like a warranty. If this thing breaks within the first five years, we're fixing it. We don't care. That's not what we're talking about, guys. We don't have strict liability for construction issues in Vermont. Contractors, architects, builders, they are not responsible simply because something goes wrong. A wall falls, it doesn't mean somebody's gonna have a claim made against them. A septic fails, it doesn't mean you're gonna have a claim made against you. We have to prove fault. We have to prove negligence. We have to prove that somebody screwed up. And we gotta get 12 jurors to unanimously agree that we proved that to them. And let me just tell you, that is not easy. As somebody who goes before jurors in Vermont, it is not easy. Jurors are smart. They are fair. Our Vermont citizens do an amazing job on our juries. They take their job really seriously. They listen to the judge. They listen to the evidence, and they do their best to render a fair verdict. And that system favors defendants already. It favors contractors. It favors architects. I gotta go in there and prove it, and I gotta get all 12 people to agree with me. So I just want folks to understand we do have already a lot of protections built in. Statute of limitations, discovery rule, unanimous jurors, concepts of negligence, not strict liability. And so I just don't want folks to have the misimpression that it's really easy to hold contractors and builders and architects responsible for things that happen. It isn't. We have to prove that it wasn't normal wear and tear, that it wasn't. And jurors, jurors aren't going to hold. Jurors in this state are not going to hold our contractors responsible for weather conditions, for latent defects. It's really like, that is not happening on the ground. You do not have folks coming out and having these runaway jurors slapping contractors with liability when it's not deserved. So I just wanna let folks know we have the jury system if the parties can't agree, and there's a lot of protections built into that system. The other thing Before you go on. Oh, sure.

[Unidentified Committee Member]: So I'm wondering, I mean, it's interesting because I'm thinking about stores that have term policies and there are all stores that are used to have the policy like chocolate churn. Exactly. And they changed it because so many people were abusing it. So I'm wondering, your real life example sounds awful. And I started thinking, what about these other 48 states? How many of these incidents are there? And it sounds like there's such a thing as a hybrid statute of proposed. And I'm wondering if our committee were to pass this, is there some sort of measure that would of be a hybrid for these bizarre, unusual situations so that we're not opening up the floodgates or continuing as it is, which may be what we decide to do. Sure. I think

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: I would welcome and really love the opportunity to, I guess, dig in into the details and sort of brainstorm with who's working on the bill to to give examples. Sure. I can think of some things that we could do. I guess from the get go, I think there's maybe a misunderstanding of how easy it is to actually bring these claims. I also want to talk to you about some of the pending litigation guys that's happening in Vermont right now, right now, that if you pass this, it would strip Vermonters of their rights. And we have multiple court battles going on, especially over Monsantos in BCs. And I can talk to you about that. So sure. Sure. There are some hybrid systems. What I see typically in the hybrid systems is a notice requirement. That tends to be a way so you can bring the claim later as long as you had given the company notice. There's some different variations. There's a lot longer statute of reposes, right, than six or eight years that recognize, okay, maybe it does take a little bit longer for construction things to come up. So sure, there's probably some things that you could do to make the law better. I mean, as it is right now, it's pretty scary to me as somebody who represents injured Vermonters. The language of the bill right now feels very dramatic. So I'm

[Unidentified Committee Member]: curious too. Like, these 48 states, are they trying to undo that? Here's

[Rob Higgins (President, Neagley & Chase Construction)]: what

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: I would say. Once you grant immunity to a huge group of people with large financial interests, you don't get it back. Once you take rights away, you don't get them back. And right now, Vermonters have rights, and this bill would take those away. And so I'm not aware. I I know that there's a lot of folks that are unhappy with statute of reposes, just like me in New Hampshire, but you need the legislature to go back on what they did. And that's hard. Once you put one of these in place, it's really hard.

[Unidentified Committee Member]: Should there have been some checklist of why double checking to see that they thought No, great. That's a

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: really good question. It's a really great question. And I think the problem with these cases, which is difficult for everybody, including the people who has to prove it in court and the contractors, is a lot of these defects are latent, which means they aren't obvious. It's hard to see them, and sometimes it takes a long time. And so unless somebody had cracked one of those windows to see how it shattered, it took something really bad like this happening for folks to know. So I don't have a great answer for you, I guess. One of the other things I was hoping to just kind of talk about is we've heard from a lot of witnesses today from large construction companies. Right? I mean, these are really great, really successful companies with lots of employees, and they've got, I think you said, the QA, QC, and all these checklists. The reality is a lot of construction happens in Vermont from, like, Uncle Bob out of the back of the truck. You know what I mean? And plumbers and single plumbers, single electricians, small roofing crews. So while it's great that we have some really large construction companies in Vermont that we expect to do all of the safety checks that we are hoping and expecting them to do, especially on big projects. The reality is there's a lot of builders and people doing work on homes that aren't going to be at this level, that aren't going to have three levels of checks and balances and somebody may construct a code. So it's really great that we heard from these big construction companies. But in reality, there is incredibly limited oversight on residential single family owned construction in the state of Vermont. There are no, no statewide building inspections or safety codes on single family homes in the state of Vermont. So your inspections, sir, that you keep asking about, which are amazing. Right? And that's great. These are on big projects. These are on state buildings. You have Joe Schmel building his own house. You have incredibly minimal to nonexistent oversight. There's no requirement for home inspections. Some con contractors doing a certain amount of work have to have licenses just like or registration, and there's licenses for plumbing and electrician. But the reality is we have a huge group of folks doing unregulated construction in the state, and that's how it works. But there's a lot of risk that comes along with that. A lot of risk. And what this bill is about is it's shifting the risk to the builder, to

[Rep. Thomas Oliver (Member)]: the

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: professional, from the builder or the professional that was paid and had the expertise and was hired to do the work onto either the homeowner, the school, the hospital, the university, whatever it was, where there's a problem. And so I just wanna flag for folks, like, this isn't gonna be your typical everyday most folks aren't hiring them to build their single family home or to put in a new septic or to update their heating system. Anyone really can be a builder. And the thing about this law is it incredibly broad. I mean, we we think, right, about contractors and architects, and that's who we're thinking we're gonna protect, but this applies to anybody who has their hand in construction. You're talking roofers, electricians, plumbers, HVAC technicians, septic installers, masons, tile installers, welders, painters, drywallers. Also, something I'm very concerned about, and what I wanna talk to you about is this also applies to the manufacturers of the products that we're using in construction. And that, I don't know if you folks really appreciate that you are letting them off the hook if there are dangerous products that have been used in construction. Not just your builders, but your manufacturers of dangerous products. And this and the promise is we're not just talking about single family homes. We're talking schools, hospitals, condos, bridges, recreational facilities. I say this because I want to give you all some examples so you don't just think that I have my New Hampshire example or I'm making these things up. There are ongoing cases in Vermont right now where you would take away these people's rights. There's one of our members just resolved a case. It involved a handicap ramp, which even though they do require inspection, I have had multiple cases involving handicap ramps that are not built to code. The reality is sometimes ramps don't get built to code. We have a member who just resolved a case with a very vulnerable woman who was hurt very badly on a ramp that was not built to code. That claim would be barred by the statute of repulse. I have another member who's working on a litigation case up in Northern Vermont with a failed foundation, a negligently installed foundation. 12 years old, they're already at over $100,000 in damages. The Piper Ridge Condo Association litigation, I don't know if anybody remembers this. This is an example in Vermont about how things take more than five or six years. So this was back in 2006. It involved an 89 unit condominium development that was developed over a stump duck, meaning they had installed this very large and very expensive development over ground that was not stable and not safe because it had been used to dump stumps. Well, it took ten years. It took ten years for the stumps in that hole to disintegrate to the point where it then affected all of the foundations in the condominium unit. We had one of our members litigate that case. Over $3,000,000 was owed to the condo company, condo association, because of those damages. This bill would have eliminated that claim. Right now, and my colleague Richard is going talk to you about this in a little bit more detail, but some of you might know about the litigation involving Burlington High School. There are multiple cases right now involving Burlington High School. Burlington High School was built in 1964 and PVCs were used in the construction. PVCs were used in construction at that time. We now know PVCs are terrible. There are chemicals and paint, caulking, ceiling tiles, lights, whatever. They're still present. We have teachers and staff and students who have become sick and who have claims pending against Monsantos. Monsantos has put 550,000,000 into an account because they know they have these liabilities all over the country, including in Vermont. There are funds for this. I mean, we've got teachers who have cognitive problems, physical problems, who have miscarried. I mean, we have real harm, and this is being litigated right now. This would strip all of those people of those rights. And what about the Burlington School District? They have major problems that need to be fixed. And so I say that because this is real, and these things really do come up, and they do come up years down the road, unfortunately.

[Rep. Martin LaLonde (Chair)]: Can I ask you a quick question on this one? Yes. Yes. Yes. So aren't the other statutes of repose in the other states preventing those cases in the other states? It's a great question. Yes. Why are they putting aside $500,000,000 of controlling Vermont and York, New York, while there's New York?

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: I don't know the exact how the fund got funded to begin with. So I don't know exactly where that 500 and something million dollars comes from. All I know is that what I can tell you is that this exact issue went to the court in Massachusetts, because in Massachusetts, they have a statute of repose, which is very similar to what you guys are looking at passing in Vermont. And one of these cases involving Monsantos and issues went before the Massachusetts court, and the Massachusetts court says statute or post kills the case. So if you were to pass this statute in Vermont, you would take away the right of Vermonters to get compensation from Monsantos for dangerous products used in construction. And those cases are ongoing. We have cases ongoing now, and then we have cases that can be brought in the future. So

[Rep. Martin LaLonde (Chair)]: Should that be a product by a building's case? Does that cover our statute of code?

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: Absolutely, it does. And that's what the Massachusetts court says, and that is my concern. When I say this is a broad sweeping immunity bill, I can't understate how broad it is. Products liability cases sound in both negligence and strict liability. So to directly answer your question, yes. And that's the concern. And that's a concern from our members. And I have members who are litigating these Monsanto's cases right now. And so that's why I wanna bring this to your attention and make sure that you're aware of those effects. Before you go, Kai. Sure. Sorry. He's acting for This a is really helpful, and I think it provides an additional perspective of it. But I feel like a piece that we're looking at is the years, you know, for it. Sure. Assuming that we're gonna move forward. When was the Burlington High School built? Richard might have to give you more details on this. It was built in the sixties. The problem is that the federal government didn't ban the use of PVCs until like '79. So it was built with prob It was built with materials that were legal at the time, and they're not anymore. And the problem is, is that It leeches into the air, into the dust, into the material. So even with renovation, there are still PBCs in Burlington schools that are still exposing folks right now.

[Rep. Martin LaLonde (Chair)]: Tom.

[Rep. Thomas Oliver (Member)]: So I build my own house. This is just a first,

[Unidentified Committee Member]: and I'm

[Rep. Thomas Oliver (Member)]: trying to figure that out.

[Richard Rubin (Attorney)]: Sure.

[Rep. Thomas Oliver (Member)]: If I build my own house myself, I do all the work myself. Something happens to me, I've gone. Somebody else buys my house. They have nobody to pursue other than homeowners or somebody gets hurt at my home. What's gonna happen? At what point and so I I I'm going to the the YMCA. That it? So so at some point, you know, we build it. The YMCA is owned by a board or something or controlled, and there is, you know, a certain building guarantee with what they constructed and then you have your repose and then after the repose at what point does it become yours? You know what I mean? Your responsibility. I find it hard to believe you'd be running a business without being able to compensate somebody for injury within that business where it's possible.

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: That's a good question. And that's sort of and I wanna answer this by sort of having everybody take a little bit of a step back and think about this from a 10,000 foot level. We do not live in a society where if something bad happens or if somebody buys a home and there's problems with it, that automatically there's legal liability. That automatically, because you had built the home, you're subject to liability. The reality is you have to have a duty. That's the very first element of the law. So what we're typically talking about is situations where a homeowner hires a builder or a plumber or an electrician to do work. You pay them to do work. They have a duty to do that work in a reasonably safe way. They don't, right? Something fails, not just because of wear and tear, but something fails because somebody did something wrong. Then, depending on the circumstances, there can be a legal case if the plaintiff can prove it. The idea that homeowners are going to be responsible for defects in their own home that they built and that they have sold to somebody else isn't real. And so that's not these aren't claims that are happening. People aren't suing former homeowners because of do you know what I'm talking about? So I just wanna like, these aren't really the claims that are being brought.

[Rep. Thomas Oliver (Member)]: So if we have a code or a building standard on something, then why wouldn't I be out liable

[Richard Rubin (Attorney)]: if I folded somebody else?

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: Well, this is tough because you're asking me a hypothetical that I really want to answer, but there's like a lot of nuanced and legal analysis into this. The reality is when you purchase a home, when you sell a home, typically go to the normal process of this is the home, this is everything, you disclose any known defects in the home, you have home inspections and the sale goes through and the both parties agree, I understand this is the home that I'm buying and

[Unidentified Committee Member]: it has these

[Rep. Martin LaLonde (Chair)]: I don't

[Rob Higgins (President, Neagley & Chase Construction)]: have to do an inspection.

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: What we're talking about is when somebody is injured because somebody else owed them a duty and then screwed up. That's really what we're talking about. So I don't know if that's a great answer

[Richard Rubin (Attorney)]: to your question, sorry.

[Rep. Thomas Oliver (Member)]: I just find it really hard to believe after twelve years in a building with that much glass, nobody's ever broken a vein of it. That's one thing. I really find that hard to believe if it's in a YMCA, an athletic field thing. Guess it's quite plausible.

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: What can tell you in my YMCA case is we haven't tested every piece of glass in that entire building, but we know the building around the gymnasium where my kiddo went through was not safety. So it could certainly be the case that other parts of the building are totally fine. But these things do happen, and my point is they happen after six years.

[Unidentified Committee Member]: How can

[Richard Rubin (Attorney)]: there be a case?

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: In New Hampshire?

[Rep. Martin LaLonde (Chair)]: Yeah. If if if pass the amount of time. I think you could do a civil case. You said no because, you know, all the stipulation, but there's a

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: There's no there's no case in New Hampshire against any of the people involved in the building, in the in the construction of the YMCA.

[Rep. Martin LaLonde (Chair)]: Right. And when I asked about the civil part, that wasn't toward the builders. It was to I meant it toward anybody, really, toward the owners or anybody. And the way I understood what you said is you you can't bring any cases at all, but you have a case.

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: Yeah. No. And I wanna be really precise, and this is this is tough because every single case, right, the facts of every case are really unique, and we, as lawyers, go through and we figure out which parties have responsibility, where are their causes of action. In in New Hampshire

[Rep. Martin LaLonde (Chair)]: So you still alluded to that you can't Sure.

[Rep. Kenneth Goslant (Clerk)]: No. Any case?

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: No. No. I I can. I

[Rep. Martin LaLonde (Chair)]: can. Yes. But you didn't allude to that.

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: I didn't mean what let me let me clarify because I don't wanna be I don't wanna give you the wrong impression. I can bring a case in New Hampshire against the YMCA because of some of the particular facts Yes. Because of some of the particular facts with my case against the YMCA. The case that I don't have in New Hampshire is against anybody involved in the building, meaning the YFCA holds back.

[Rep. Martin LaLonde (Chair)]: Specifically, can you bring a civil case? And you said no.

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: No. You you can against anybody involved in

[Rep. Martin LaLonde (Chair)]: I know. I know. I I just said civil case.

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: I apologize. I think I misunderstood your question. I only meant to say that I couldn't bring a civil case against any of the builders or anybody involved construction. And that and those were the people that screwed up. So if I gave you the mis wrong impression, sir, I'm sorry. I didn't mean to do that.

[Richard Rubin (Attorney)]: Okay.

[Rep. Kenneth Goslant (Clerk)]: What's again, first of all, I feel horrible about about your child going through the glass. But what's saying that that glass panel that that this happened with wasn't a replacement panel, and the rest of the glass is fine.

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: In my case, there there was those panels hadn't been replaced since the original construction. We know that. So I just happen to know in the facts of my case that it's not a replacement panel, but in a different case, it could be a different issue.

[Rep. Kenneth Goslant (Clerk)]: So then I wanna back up to home inspections that representative Oliver brought up. Aren't home inspectors also they have to be state approved. Right? Whatever state you're in?

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: I don't know off the top of my head, and maybe Richard doesn't can answer. I don't know off the top of my head if home inspectors have to be state approved in either state, so I don't wanna give you a wrong answer one way or another. I'm not sure.

[Rep. Kenneth Goslant (Clerk)]: Okay. And then just one more. Why is it you why is it that forty forty eight other states have this law, and Vermont, New York don't.

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: I wish I could give you an answer to that question.

[Rep. Kenneth Goslant (Clerk)]: I was hoping you could.

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: No. What I would say is that the legislature has battled this issue in in many other states. I can tell you the statute of repose was passed in New Hampshire well before my kiddo went through the glass. If it hadn't been, I would have been at the hearing in New Hampshire testifying against the bill just like I am today. That statue's been in existence for a while. I think each legislature tries to balance the needs of both parties. We understand that there are real issues that these folks are facing. I do think some of the insurance issues is muddled. Richard's gonna speak more about that. The idea that we can predict the changes in insurance. The other thing I want to say is it isn't any cheaper to get insurance or to build a house in New Hampshire than it is Vermont. And there's a statute of repose in New Hampshire. It just isn't.

[Richard Rubin (Attorney)]: What was that?

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: This is not any cheaper to build a house or to get insurance in New Hampshire than it is in Vermont.

[Rep. Kenneth Goslant (Clerk)]: Well, I think I disagree with you there.

[Unidentified Committee Member]: Okay.

[Rep. Thomas Oliver (Member)]: So Okay. Quite a lot.

[Rep. Martin LaLonde (Chair)]: We're good. We're do a time check on this about five minutes. Not sure. We need to get to the.

[Unidentified Committee Member]: Yeah, just a quick question. So I think we're balancing these different And I think the state of Vermont has other ways. We have med mal, and we have a very reduced statute of limitations for ski resorts. So there's places where we step in and say we have an interest here. I think we've heard that there is definitely ways that we could have a real interest in trying to encourage business, that kind of thing. So trying to balance it and then looking that there are a billion different ways to skin this grape with how other states do it. So I'm curious to your thoughts on a carve out for personal injury or wrongful death, and if you just kept one for other claims.

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: Sure. I'm always concerned about folks' economic losses, especially homeowners bearing the burdens as large economic costs. So I don't want to pretend like that's not a factor, but is the injury a huge concern for me and my primary concern? Yes, it is. And if there was a carve out for that, would that make me feel much better? Yes, it would.

[Unidentified Committee Member]: And it looks like Arizona has Sure, exactly. Okay. And then my only question, actually, was Kenny's. Do you have a sense for the legislative history in Vermont for this particular?

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: Only briefly, and I know Adam, this did come before this committee in 2015. There was an effort

[Richard Rubin (Attorney)]: I think it may

[Rep. Martin LaLonde (Chair)]: I don't know if we kept testimony, but I think there was a bill. We did it. Did it.

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: I know there was a big discussion about it in 2015, so eleven years ago, and it did not pass.

[Rep. Martin LaLonde (Chair)]: We passed the statute of proposed on considering the statute of which we could reconsider statute of the laws. Sorry. Yes. All

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: right. I think I probably answered everybody's questions. Is there Richard or Adam, is there anything you can Okay. Thank you very much.

[Rep. Martin LaLonde (Chair)]: Thank you

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: very much. You're welcome. Thank you.

[Richard Rubin (Attorney)]: Alright. We'll turn to Richard Rubin.

[Rep. Martin LaLonde (Chair)]: Right? Yeah. Okay. Remember the thought like, everybody's about done. Some

[Rep. Kenneth Goslant (Clerk)]: people didn't have to About the have

[Richard Rubin (Attorney)]: I understand that. I'm about guns.

[Rep. Martin LaLonde (Chair)]: Yeah. Some people have carpools, and and I apologize for that. But

[Richard Rubin (Attorney)]: I like my name is Richard Ruben. I'm a lawyer. I live in Plainfield. I've been representing. We do a lot of criminal defense. I've never sued a building contractor. Probably never will. I do medical malpractice cases. I need I need to take a bigger view here. We have a system one of the reasons we don't have a law of repose in the state is we have one of the best systems in the country, along with New York, to protect Vermonters and our institutions from being cut off from with fair and honest litigation, in this case, latent defects caused by negligence. So maybe that's why there's no statute of proposed. We don't need a statute of proposed. It's not necessary. I didn't hear any really strong argument. I'll talk about it briefly in a minute that it would save any real cause. I've got some information I'll leave with you that and they didn't really quantify any insurance savings. Where's the savings gonna happen? Who's gonna get the money from the savings? Liability insurance costs roughly half of 1% of a job's total cost. Half of 1%. When you take a $5,000,000 project, it's like $50.40, $3,050,000 dollars for liability insurance, including the tail insurance. If you save some money because the tail is shortened, they maybe save 20% of that. So we're talking about $5.10, $1,520,000 dollars savings in a $5,000,000 job. That savings is not going to anybody but the company. The pricing of insurance in commercial liability insurance is incredibly complex, really difficult to quantify. In New York and Vermont, people buy this insurance. The insurance companies already price in claims beyond six years because claims beyond six years are made, and they have to defend them. They beat them back, but they have to defend them. I didn't hear a strong argument that significant savings are going to accrue to contractors that will benefit anybody but the contractor. There are other issues with contractors in the state which are confusing, that cause delays, permitting, and all the rest, but this isn't one of them. What we have, you know, is a system where it's not just the kid who went through the plate glass. It's school districts, municipalities, the state of Vermont. Everybody who builds a building, builds a bridge, builds a sewer system. You know, map here to redid its sewer system. It was remarkably inconvenient. If seven years from now, someone discovers that the pipes were too small in diameter, they were negligent, So the city has to dig it all up and do it again. When the company who designed that system and built it should be responsible because they were negligent, that won't happen. So the citizens of Montpelier will pay for the reconstruction of the sewer system. If a roof fails seven years after it's built on Twin Fields High School, which we built many years ago, because they didn't build it right or the joists, the rafters were too narrow or too far apart. Who's paying for that? Who's paying for that? I'm paying for it. I live in that town. It's a common problem that the citizens of this state, including the people who pay taxes to the state itself. So let's say they build a new prison. Let's say we build new office building. In Barrie, we built a new office building, and it's being filled up by agency of transportation workers. If there's a problem with that building that was negligently caused, that's discovered after six years, it's a latent problem, in the state of Vermont, and its citizens will pay for that. You don't want a statute that says, do construction if they were negligent is off the hook. What we're doing here is shifting the risk from the citizens, the state, the school districts, the municipalities, negligent creation of defects that are blatant, that are hidden. Who pays for that? The wrongdoer should pay for it. And you know why? Because they have insurance. That's the way the system works. Insurance spreads the risk amongst everybody. Sure. It's built into the cost of insuring of of the building, but it spreads the risk to all of us. When you drive your car down the road, you have to have insurance, and that's and it costs everybody pays for it. The cost of owning a car is increased by the insurance. But what happens is when you have an accident because you're negligent, insurance pays for it. Medicaid doesn't pay for it. Medicare doesn't pay for it. Blue Cross doesn't pay for it. Your mother doesn't pay for it, hopefully the insurance pays for it. And it's the same system that we've been operating, I don't know, for one hundred and fifty years. Somehow we've managed to get along in this state without a statue that we're closed for forever. And you know, it's gone wrong just fine, just fine. And I haven't heard anything other than the confusion and the difficulty of doing construction in Vermont for all of the reasons that were stated it would justify creating an immunity statute or a bar to real claims, real claims based on negligence that are hidden and that pop up five or ten years later. I'll give you two examples. As a fan, I'm too old, but may you know, maybe that gentleman over there, his name, I forget, but you may remember Rod the Luther. And there was a case in

[Rep. Kenneth Goslant (Clerk)]: Did say Johnsbury?

[Rob Higgins (President, Neagley & Chase Construction)]: Yeah. Never heard

[Rep. Martin LaLonde (Chair)]: of him.

[Richard Rubin (Attorney)]: Maybe you remember Stenlian. But, anyway, there was a case where roofs in I think it was in Oxbow and in Johnsbury and maybe even Chelsea failed because the building materials that were installed in the roof were inadequate. It cost a a lot of schools really were hit really badly by that event because the building materials were no good, and they were installed in the roofs. It took, like, three years, five years to take that recovery, but there was a recovery. Ultimately, GAF, which is one of the largest moving materials builder in in America, paid. If this statute applied, no claim because the statute has been broadly construed in Massachusetts. No claim. There's no reason why we need a statute of repose to deal with, I don't know, some of the real issues that are raised here. I'm not saying that the concerns that were raised by the instruction guys are not reasonable, but they don't trump or they don't pardon that expression, but they don't trump the the other considerations that make our liability system work. As, you know, first as was said earlier, there are plenty of protections for defendants, jury trials, unanimous juries. Most lawyers don't bring frivolous claims. They happen, for sure. Sometimes you sue a deep pocket, for sure. But you need to step back from those kind of examples that are annoying or bothersome, and look at the overall structure of the personal liability system that exists in the state and how it works and and the balances that are already built into it and the statute of limitations that already exist in it. And there really is, I see, no reason to make a change. I've heard nothing. No one's gonna come into this state and open up a construction company because after a hundred and fifty years, we have this five year, seven year statute of repose. It's not gonna happen. In New York, which is, like, fifty times bigger than we are, they build buildings. They have business. They they operate their business. They provide remedies for people who are injured due to negligent construction. Life goes on. I mean, the guys are running the construction company, they're making a good living, or they're not. But when they're not, it has nothing to do with the statute of repose. Nothing. I mean, it's just, you know, every now and then, someone comes in to the judiciary committee and says, you know, I should have a statute of repose. And occasionally, they get one. The doctor's got a seven year statute of repose. If we gave a statute of are statutes of repose, but never have we thought about giving a statute of repose to every electrician, septic system installer, plumber, architect, designer, everybody. You know, we when we give them, they're narrow, they're tailored, they give them to the doctors. You know, we don't give them to every hospital, you know, every every, you know, every nursing home. So I urge you not to do this. I wanna say, lastly, there are real claims in Burlington in federal court today, hopefully set for trial in July for judge sections. These are claims that the installation of p these the building of Burlington High School was full of PCBs, and many teachers are sick. Now it doesn't matter to

[Rep. Martin LaLonde (Chair)]: me Question real quick. Yeah. If it's in federal court, is that not state law? Yeah. Is it state law?

[Richard Rubin (Attorney)]: Oh, yeah. State law will apply to that. Because of diversity jurisdiction? Absolutely. Okay. Alright. Thanks.

[Rep. Martin LaLonde (Chair)]: Absolutely. So statute of of repose should apply there?

[Richard Rubin (Attorney)]: If there were a statute of repose here, it would borrow that claim. I can't tell you whether they'll win. You know? I don't know whether they'll win. I know there are injuries. I know the schools have got all that crap in them. I know there are other schools that are litigating this trying to get recovery because no one else is paying for it. Moussainto is is responsible or not. The point is, it doesn't seem right to enact a statute in this legislature which would directly cut off claims of public municipal school districts against Monsanto. And if you wanna know why I know that that would cut that off, because there's a case in Massachusetts directly on point with with almost identical word for word statute in Massachusetts, a similar claim against Monsanto and other other chemical makers. And the judge said, because these products are incorporated in the building materials that go into the building, this statute of repose bars any such claims.

[Rep. Martin LaLonde (Chair)]: It's like, okay.

[Richard Rubin (Attorney)]: That's a different question as whether you can bring the claim. You should be able to bring the claim, should be able to litigate it. And if they win it, they win it. And Monsanto and its insurance companies will pay it. Okay. God help me. I don't wanna win that claim because it's it'll take ten years to win that claim if they can win it. So I think Ken has a question. Go ahead.

[Rep. Kenneth Goslant (Clerk)]: So you bring up Monsanto. I think DuPont was also another big one out there that I think has changed their name. But Burlington High School, did

[Rep. Martin LaLonde (Chair)]: you say that only residents of Burlington are paying for that high school?

[Richard Rubin (Attorney)]: No. What I said was the claim is well, I don't know what I said. But the claim the claim is being brought by teachers who worked at that school during the for many years who are now asserting that they've been made sick by the existence of the PCBs. I do believe that there are other schools that are I mean, I don't know where the city of Burlington or the Burlington school district brought a claim because they had to relocate their school and put it in the mall for three years, but there are schools that are bringing claims based on structural costs. They're

[Rep. Kenneth Goslant (Clerk)]: I was just under the impression that we're all paying for for that as taxpayers of of Vermont. I was just clarifying that. But so let me ask you this question. We're one of two states that don't have this. Why, in your opinion, does the 48 other states have

[Alan Parent (Senior Director of Business Development, PC Construction)]: this law?

[Unidentified Committee Member]: Well, you know what?

[Rep. Martin LaLonde (Chair)]: It's hard to answer.

[Richard Rubin (Attorney)]: I'd like to say because we're better than them and because we understand or this legislature understands that this statute of overtalist provides some comfort to construction companies. It doesn't really save them a whole lot of money at all. I've got a handout I'll leave with you. And because large construction companies and large corporations can come into rural state legislatures and say, like these guys said, persuasively, give us this statute. It'll help the climate the business climate, and it'll make people wanna come in here and do business here. So people say, okay. But what doesn't get considered, maybe it has been considered in New York, is that what you're doing is you're kind of undoing the balance that has existed for a hundred and fifty years that is really working quite well, and there's no need to change it. And when you change it, you're basically giving people immunity when they're wrongdoers. That's my concern. And they can cover the risk by insurance. I don't know. I can't answer your question, but that's kind of

[Rep. Kenneth Goslant (Clerk)]: So you don't think we have we have a a real problem in this state with aging suffering infrastructure that, god knows, I'm never gonna see even begun to be fixed in my lifetime? Probably my kids' lifetime or

[Rep. Martin LaLonde (Chair)]: anything like that. I mean,

[Rep. Kenneth Goslant (Clerk)]: we got some problems here. Somehow or another, people are not coming into the state and wanting to do work and moving here and all this stuff. And you don't think this is part of the problem?

[Richard Rubin (Attorney)]: No. I think that there are a lot of problems as as we all know, housing, wages, weather, lack of labor force. I mean, the governor has talked about all of these quite correctly that there's still all these problems. He's never mentioned the statute of repose as a fix, but the because it isn't. I mean, it you know, if something happens to the latent problem in Plattsburgh, there's gonna be recovery. You know, if a bridge falls down in Plattsburgh because it used the wrong steel, there'll be a recovery against the company that built the bridge. If it falls down in Saint Albans, ain't gonna be any recovery, and the citizens of Saint Albans will pay for it. And rather than the construction companies. No need to do that. They have insurance. I mean, that's that insurance solves their problem, at least the financial problem. That's why they have insurance, and it may cost them a little more. They may save a little. They haven't really proved that. They haven't given you any numbers that and even if they save half of 1% of the construction cost, There's other factors that are driving construction costs, including the cost of money, the cost of labor, the cost of materials that are way way way more significant than a slight decrease in their tail coverage. It's like you know?

[Rep. Kenneth Goslant (Clerk)]: I just wanna use another example that just cropped up in my head with with the the chemicals and Burlington and all this stuff. Like, I don't believe you ever heard in the houses like poisonous gas, is it methane? Radon. Radon. Radon. Right? You never heard about that. And now you're seeing all these houses now have problems with that and all that stuff, which I assume is probably gonna bring big lawsuits. I think, you know, I've been here for eight years, but it amazes me of how much changes that or how much we've learned in eight years that we didn't know. Yeah. Like, you know, going back to when Burlington was built or, you know, I'm from Norfield and God knows what we got over there with that high school or any of the others.

[Rep. Martin LaLonde (Chair)]: Here's here's the thing.

[Richard Rubin (Attorney)]: Someone comes to me and says, you know, there's radon in my basement, And, you know, it should have been fixed. They they should have put thicker walls in in my basement so I didn't have radon. And, you

[Rep. Martin LaLonde (Chair)]: know, when I built

[Richard Rubin (Attorney)]: the house twenty five years ago, they should have had you know, I said, come I'm sorry. I can't help you. People people aren't bringing these claims. They just they just you know, for me or anybody else to bring a claim against a construction company, even if they are insured on on random events, you hear, you know, you hear the McDonald's case where, you know, the the big awards, the anecdotes, including the ones we tell. You gotta be careful that you don't make decisions on the basis of, you know, the case about the kid who who didn't get recovery in from the YMCA or any other case. The anecdotes really amplify the situation somewhat. What you need to do is step back and say, do we really wanna cut off legitimate claims of negligent construction, negligent design that emerged after six years when they're insured. Because who's gonna pay for them? We're talking about legitimate claims. Every you know? It's so, I mean, I can, you know, you know, I can tell you the Rod the Rutland case. Well, you know, maybe it was Rod's fault, and, you know, maybe it wasn't the IT. It's just it it the point is the system that we have now allows people to bring claims. The real problem is the lawyers are too expensive. The courts are too slow. The remedies are remote. I do medical malpractice. You can't bring a medical malpractice case in this state unless the damages are, like, hundreds of thousands of dollars because it just takes too long. There is no real you know, you have to basically be half dead before and and have a injury really clear like they cut off the wrong leg. Otherwise, you got no claim. The real problem is ordinary Vermonters, ordinary municipalities don't have enough access to justice to fair recoveries. You guys should really change the law on unanimous juries, but that's a different conversation. So I don't I don't think you have to worry that there are too many claims. There are. There you know? And I'm I'm speaking as a citizen because I I mainly do criminal defense and, you know, medical malpractice. I'm not making my living suing construction companies, and my firm doesn't do that either. And, you know, people say, oh, lawyers. You know? Lawyers cause this problem and that problem. But one thing they do is if you get hit by a truck, you know, that's negligently driven or wall falls down on you sitting here in the state house and the wall collapses and you get hurt because when they rebuilt the wall, they put the wrong studs in, you're gonna have a claim. You're gonna have a right to to pursue your claim. You may lose, but there's no reason to take that right away in this statute. There's there's no there's there's enough justification. There's enough need to to give a writer a repose. I I you know, they call it the statute of repose. It sounds nice. You know, it's repose. It's kind of melting. I I kinda feel like it's the statute is you're never gonna sue me again, you son of a bitch. It's kind of how I would call the statute. Pardon my French. But it's it's really a don't sue me for something I did that you didn't discover until seven or eight or nine years out. Forget about it. You know? Even though you may not win, but you're not gonna you're not gonna go to court. So I thought That's why I'm done about done. And I appreciate your time. Thank you very much. I love Natesto. I really appreciate. Maybe someone has a question, but I don't know what to do with my I've got some short handouts which talk about insurance. Yeah. If you

[Rep. Martin LaLonde (Chair)]: can if you haven't already given them to to our committee assistant, Nate, he can get them posted for us, so they'll be available for us. That'd be great.

[Richard Rubin (Attorney)]: So I've got. I've got, actually, Xerox on them.

[Rep. Martin LaLonde (Chair)]: That's fine. We can get them scanned. We can get them scanned and that's not enough. Oh, I've got them. Oh, okay. You can pass them out. We'll all mail how many I needed posted.

[Richard Rubin (Attorney)]: Thank you very much.

[Rep. Martin LaLonde (Chair)]: Really appreciate the testimony from everybody. Thank you so much everybody this after for spending your Friday afternoon in the nice warm It's a good movie here.

[Kristen Ross (Immediate Past President, Vermont Association for Justice)]: It's very warm in here, which

[Rep. Martin LaLonde (Chair)]: is nice actually to get ready for it outside. We're adjourned until 01:00