As regular readers here know, my aim is to keep you out of court. However, when that is not possible, it is important that you understand the process and procedure for how you will get sued, what happens then, and when there might finally be resolution.
Previously, I explained this process in detail in a series of posts entitled Law & Order: Hard Hat Files. For newer readers and for reference, here are all sections of the 9 part series (really, 10 parts, with the introduction).
If you’d prefer to download a pdf instead of the above links, go here.
Your turn. Have you ever been sued for professional errors and omissions? Wish something else had been explained? Share, below.
Since I have so many newer readers here at Construction Law NC, I thought a brief summary of some of the most popular posts might be helpful. (I have also added this list to the About Me & Contact Info page, in case you want to refer to it later).
Presented below are the top 10 posts by popularity (although the list does fluctuate some):
- “Substantial Completion” on the Construction Project: How is it defined? (always a popular post; owners want every last paint scratch fixed before they are willing to consider the project complete)
- The Sticky Statute of Limitations in NC (the general rule: 3 years from date of service; however, there are many exceptions)
- Statute of Repose: Putting your Risk to Bed (after 6 years, in North Carolina, even the exceptions to statutes of limitations don’t help)
- Planning Ahead for Additional Compensation (money; cause, we all need to get paid!)
- Spring Cleaning: 6 Contract law tips for limiting risk on construction projects (contracts are the first step in limiting your risk- read here to learn how to make them effective)
- How to Smartly Handle Project Documents (your policies and procedures with documents can make or break a lawsuit)
- The Architect’s and Engineer’s “Standard of Care” (note: perfection is NOT the standard!)
- Design Error and the Spearin Doctrine (why your designs must actually, you know, work!)
- Active vs. Passive Negligence (sharing the blame, unequally, when something goes wrong)
- Adding an “Additional Insured” in the Professional Services Agreement: an exercise in futility! (for those times when you have an obtuse owner- show them this!)
Are there other posts that you think should be added to this “Best of” collection? Wish I had written a post on your pet topic? Share below.
Photo (c) Independent Association of Businesses.
Regular readers of this blog know that you absolutely should have a written contract, and not rely on “gentlemen’s agreements.” But what is the most important part of your agreement to provide professional services? The dispute resolution provision? Payment terms? Change Order requirements? All of those are important. I’d argue, however, that the Scope of Work provision is, if not the most important term, one of the key terms. Face it– once you have a good set of standard contract terms, they rarely need to be drastically rewritten for each individual project. But each and every time you start a new project, whether for a long-time client or a new owner, you are defining the Scope of Work.
This is where paying attention up front can save you headaches down the road. I often refer to the belt & suspenders approach— you want to both be very clear in describing the scope of work, and equally clear in describing exclusions to your services. That way, everyone knows what is expected up front, and you can hopefully avoid litigation pitfalls down the road.
Bill Beardslee of Davis Martin Powell has coined a nice mnemonic for Scope that is very apt:
S C O P E
Your turn. Do you carefully craft your Scope of Work for each new Project? You should. If you need help in crafting your Scopes of Work, drop me a line.
I’ve written many times about how you should–indeed, must–document your construction project in case there are problems or disputes later on. Of course, you need to update the plans and specs. But equally important, you need to document agreements to do things outside of the contract documents and also all verbal directives from the owner.
Tennessee lawyer Matt Devries recently wrote a nice blog post entitled: LOL! OMG. HUH? Court Finds That Text Message Can Form Binding Contract, discussing how even text messages can be legally binding. Something to remember, and learn from. I always tell clients I’d like to see any deviations signed by all parties, but failing that, a fax or email will do. Just don’t rely on a conversation alone. Texts are *not* the preferred method of documenting something for the court, but they are better than nothing.
Read Matt’s post and drop him a line. And comment below if you’ve ever considered using text messages to establish a written record of agreements.
Photo courtesy Pixabay.
Another question about betterment, and about A/E insurance policies:
I am confused on why the A/E even carries error and omission insurance. I must re-read one of the policies. And if betterment protects the designer, why not the construction contractor who omits a work activity from his bid?
Betterment is a legal concept that covers anyone involved. Usually, though, the situation arises when the contractor submits a change order request for a missing item, and then the owner wants to get reimbursed by the designer for the cost. So, the contractor is getting his payment in the form of a change which, sometimes, is something he may have previously considered in his bid anyhow. So in that sense, the contractor doesn’t really need the protection of the betterment, as he is getting paid for the change.
But, regardless of betterment, there are many other types of claims that can be made against the A/E such as errors (as opposed to omissions) for which insurance is a good idea.
Your turn: Have you ever omitted something on your plans, that the owner then wanted you to compensate him for, despite the fact that he had no actual damages? Share below.
PS: Wondering about the picture in this post? Saturday Night Live fans will remember the classic More Cowbell skit with Christopher Walken and Will Ferrell. Since this is my 2nd post on betterment, it seemed appropriate. Photo credit: Danielle Scott.