Preventing Litigation on Construction Issues
By Drew Robb
It's an unfortunate fact of building construction that legal disputes can and will arise. When it involves a major structural defect or the partial failure of a building, litigation is often unavoidable. But it doesn't take a catastrophic incident for attorneys to become involved and for matters—not to mention time and costs—to quickly escalate and get out of hand. Legal action can be initiated by the mere presence of cracks in concrete—whether those cracks are structural and pose a real risk or are cosmetic and no real threat to the structure.
Understanding the situation before getting lawyers involved can save facility managers time and resources that might otherwise be spent unnecessarily.
"Owners can confuse minor cosmetic cracking with a major structural issue and may seek legal remedies," said Pete Barlow, a principal at a company that repairs, strengthens and waterproofs concrete structures. "That's why it's necessary early in the process to bring in experts that can accurately assess structural cracks to determine their significance and the available remediation options before jumping to conclusions."
According to Barlow, such a team would include a structural, or forensic, engineer as well as a concrete repair specialist. Additional team members might include contractors that specialize in solutions tailored to specific structural concrete situations. In many cases, repairs using advanced epoxies can eliminate the need for concrete removal and replacement.
Epoxy Remediation of Concrete Cracking
Where possible, such teams should be assembled long before the lawyers take over. In the structural concrete field, the old saying that an ounce of prevention is better than a pound of cure very much applies. When cracks are detected, then, it is always safer to call in professional assistance to determine whether the cracking is structural or non-structural.
"Structural cracking in support beams, columns and load-bearing areas is of particular concern," said Dr. Wolfgang Eisenhut, a chemist with more than 40 years of experience in understanding the physical properties of various resins and how to blend them to achieve maximum strength and cohesion. "Non-structural cracks are not detrimental to building integrity, though they may need to be addressed due to cosmetic reasons or to take proactive steps to prevent those cracks from growing over time and eventually reaching the structural stage."
Another issue is the location and orientation of cracking. Those running in random directions are of lower priority than those in beams, columns or other load-bearing areas. Closely spaced cracks or repetition of cracking at the same locations on each floor should be viewed as a warning sign of looming structural problems.
Before things escalate into the legal arena, therefore, preventive concrete remediation using high-performance epoxies manufactured for structural concrete bonding and crack repair can keep costs down, while satisfying the facility's needs.
Barlow pointed out that while many different types of epoxy are available, one size does not fit all. It requires the right combination of materials, chemistry and expertise.
Barlow gave the example of a dispute where one party insisted that concrete be demolished and redone. The engineer isolated the problem and Barlow brought in a partner as a single source of equipment, material and expertise for a broad line of resins. The company's chemists studied the environment and formulated a custom epoxy to structurally bond extensive cracking. When the owner's engineer reviewed that plan, he agreed that it created a usable and functional structure with long life expectancy. All parties then consented to implement this as a safe and cost-effective solution.
"Bringing in veteran forensic engineers and conducting remediation with advanced epoxies is a smart way to eliminate the need for concrete replacement and to avoid costly litigation," Barlow explained.
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."
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.
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