Guest Column - November 2011
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Legal Issues

Preventing Litigation on Construction Issues

By Drew Robb


Dealing With the Specter of Litigation

Despite proactive attempts to address concerns, sometimes legal action is unavoidable.

And, in the event of construction defect litigation, repair contractors have to tread carefully, noted T. Daniel Heffernan, an attorney with the Heffernan Law Group in Seattle. A construction defect lawyer for 25 years, he cautions that concrete remediation work requires special expertise.

In defect claims, for example, it can be a challenge to allocate liability for repair costs. Extensive documentation is required. This entails use of detailed cost codes for tracking labor time and material and other costs. Reason: a settlement or damages award often allocates repair cost damages to various parties responsible for the defects, including the general contractor, the concrete subcontractor or supplier, and the steel installation subcontractor or fabricator. Not all contractors and their employees are experienced at providing such detailed documentation.

"It is also vital to work with a knowledgeable forensic engineer," said Heffernan. "The engineer is the hand and the contractor is the tool. Although complementary, these roles are distinct."

On a project subject to litigation, the repair contractor's job is to closely follow the engineer's instructions. Further, contractors have to be adept at documenting building conditions as they investigate the defects and undertake repairs. That means before and after photos, and precision documentation of locations and work performed so that experts who were not present can understand the nature and extent of each defect, why it needs to be repaired, as well as the overall scope of repair.

Repair contractors and their staff can run into trouble, too, if they try to assume the role of the forensic engineer and state opinions about the causes of the defects. One side or the other can latch onto these comments, and the repair contractor's credibility and independence can be compromised.

"Offhand comments by the repair contractor can jeopardize claims as the other side might try to use such unqualified remarks in support of arguments to shift or avoid liability," said Heffernan. "If you work in this area, you need to be mindful of the litigation aspects of the work, as well as of the repair work itself."

Contractor Responsiveness

Barlow said that contractors sometimes cause themselves legal problems by failing to accept that someone is dissatisfied. Instead of understanding concerns, they brush it off or refuse to cooperate.

"Litigation polarizes the parties involved," he said. "If they can settle it after a lengthy legal battle, why not get there first via face-to-face discussion?"

Based on his 35 years of experience, Barlow thinks it is best to try to resolve matters through dialogue in the early stages.

"It is wise to be responsive to owner requests," said Barlow. "Contractors' delayed or negative reaction can make owners feel the only avenue is to sue."

As facility managers, being aware of the best steps to take before lawsuits become necessary will help simplify the process and ultimately reduce costs.



ABOUT THE AUTHOR

Drew Robb is a Los Angeles-based writer specializing in business, engineering and technology. For more information about ChemCo Systems and epoxies manufactured for structural concrete repair, visit www.chemcosystems.com.