How your disgruntled client can turn into your very own car crash! (and how to avoid it) (law tips)

Over the summer, I was involved in a car crash.  It was *not* my fault– heck, I wasn’t even driving but riding shotgun.  But it wasn’t my husband’s fault either.  A guy pulling out of a parking lot was watching the traffic coming up the road, but failed to see our car sitting in the same intersection waiting to turn into the same parking lot.  He ran right into us.  Here was the damage:

car damage

 

It may not look like much, but the panels were so damaged it cost almost $9k in damages, over a month of car rental fees, and a LOT of aggravation on our part.  The guy who hit us was very nice, apologized, and was concerned if we were injured.  His insurance company ultimately paid for all of the damage.  However– it wasn’t he who suddenly got a new part time job– that was me.  I had to spend lots of time with police, insurance representatives, auto body mechanics, rental car places, you name it.  If you’ve ever been in an accident, you know the headache involved.  In fact, I have had 2 other accidents over the years (again, neither of which were my fault– I think I’m just a beacon for bad drivers?).  One of those accidents was a 4 car accident– a driver hit my car, pushing it into the car ahead, which went into the car ahead of that.  In that accident, my car was actually totaled.  Fun times!

How is this relevant to your life as an architect or engineer?  If you stay in the game (that is, the design field) long enough, chances are, you will, at some point, end up dealing with disgruntled clients.  One of those clients may even file a lawsuit against you.  Or, for that matter, you may end up getting sued by another party involved in your construction projects– one that you don’t even have a contract with.

If that happens, you too will have a new part-time job– working on your defense.  Think meetings with your attorneys, calls with your insurance adjuster, unbilled time sitting for deposition, searches through all of your project emails and files, and the potential for a long jury trial (again, unbillable time for you).  Sounds fun, doesn’t it?  Maybe even makes you want to scream with the unfairness of it all.

The thing is, while there are certain things you can do to minimize your risks of being sued and your chances of prevailing if you are sued, even if you win, you’ve lost in time and opportunities.  In a fair system, you wouldn’t face this for unfair or frivolous claims.  In a fair system, I wouldn’t have to spend hours dealing with the fall out of an accident I didn’t cause.  But sometimes, stuff happens.

Just like there are ways of minimizing your risk of car accidents (turn signals, watching for inattentive drivers) and reducing damage when they occur (using seat belts, driving slower), there are also ways to minimize your risk of a lawsuit and reducing your damage when they do occur.

Some ideas:

  1. Have a written contract for every project, every time
  2. Get that contract reviewed by your insurance carrier and lawyer
  3. Be sure to specify what you will, and will not be doing in your scope of work  (being redundant is good here!)
  4. Establish clear payment terms, and expectations about fees for additional services, up front.
  5. Have good document management systems in place, which you’ll need for if/when litigation does occur
  6. Be aware of warning signs that there may be a lawsuit in your future; and
  7. If you do get sued, don’t panic, but take some steps to help your case get off on the right foot

But remember, when all is said and done:  you place your bets and roll the wheel.  Sometimes, your number comes up.  While these tips cannot prevent being sued by a disgruntled client, they can lessen the risk and impact.  And that is *almost* as good as getting your car fixed, returning the rental to the shop, and quitting your new part time job!

Have you had to suffer through an unfair lawsuit from a disgruntled client or third party?  Tips you wish you had known earlier?  Concerns about your own contracts?  Share in the comments below or drop me an email at mbrumback@rl-law.com.

Photo: Creative Commons License

Need to Cover Yourself for “Crisis” Changes on a Job Site? Try These Tips (guest post)

Today, we welcome back friend of the blog Christopher G. Hill. 

Chris is a  LEED AP, a Virginia Supreme Court certified mediator, construction lawyer and owner of the Richmond, VA firm, The Law Office of Christopher G. Hill, PC.  Chris authors the Construction Law Musings blog where he discusses legal and policy issues relevant to construction professionals.  

His practice concentrates on mechanic’s liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals.  [His blog, by the way, was an active influence when I was just getting started on my own blogging endeavor.]  Take it away Chris………….

Chris Hill

 

I am always happy to guest post here at Melissa’s blog (despite the fact that she went to a school with the wrong color blue) and she had a great idea for a topic (namely that in the title of this post) so I decided to run with it.  So, without further ado. . .

As construction professionals we’ve all been there.  Something happens on a job site that requires immediate attention and possibly a changed sequence of work or possibly a change to a subcontractor’s scope.  It could be a buried power line that Miss Utility failed to mark properly or an owner that wants a different HVAC configuration at the last minute.  It could also simply be that it rained too much, and work had to slow down.

The above examples are instances of items that are beyond the control of the general contractor or the subcontractors and are the type that require shifts in work schedules and changes in scope that must be dealt with on the fly and require quick decisions and immediate action if the project is to meet any time of completion reasonably close to that which is listed in the contract documents.  It can often seem that there is no time to meet the written change order provisions of any well drafted construction contract.

Of course, failing to get your change orders in writing could lead to a situation that only a construction attorney could love: ambiguity, claims and possible litigation.  So, what do you do in the “heat of battle” when the Owner or General Contractor is pushing for the change and telling you to get it done, we’ll do the paperwork later?  While anything aside from an agreed change order with the signatures of all parties is not ideal, when the circumstances keep this from happening, the following steps can keep you from losing a potential claim:

  1. Use your smartphone.

    We all carry these computers in our pockets that also happen to have an app that works like a phone. USE THEM.  When confronted with this type of situation, send an email (I personally hate texts because they’re hard to use later) with the understanding of the work to be done and either a price change or a statement that a price will be coming later in the day.  Be sure to end the email with something to the effect of “If this is not your understanding, please let me know” so that when you don’t get a reply before starting the new work, you are as covered as possible.

  2. Follow up on Number 1

    If you must use Number 1 above, be sure to fill out a claim/proposed change order the same day as the email with the proposed scope change and price.  Most construction contracts give you at most 3 days in which to file your claim or PCO if there is not one in place.  Immediate follow up will in most cases meet these deadlines.

  3. Review your contract and any Prime Contract.

    As stated above, there are deadlines in these documents.  Often there are additional and incorporated deadlines in the prime contract that may limit your follow up time even further.

  4. Don’t “punt.”

    Whatever you do, do not “punt” and fall into the trap of feeling as if you can settle up at the end of the job. Just because the relationship is friendly (or at least reasonably businesslike) at the time of the “crisis” does not mean that when the job gets to the end any paperwork omission won’t be used to avoid payment.

Of course, the ideal would be to avoid beginning the changed work until the change orders have been signed, but this is not always possible.

Great post Chris! 

Remember, without documenting project agreements, you may end up forfeiting your claims later on.  Create a good document system and use it.  During litigation, documents could make or break your case.  

Comments, thoughts, questions?  Drop a line in the comment section below.

Apologize for a design error? (law note)

SorryHave you ever apologized to a client for a failure in your professional work? Is that a good idea, or one that will get you in trouble with your partners/ lawyers/ insurance carrier/ the Court? As always, the answer is “it depends”.

Clients are people too. Even institutional clients are made up of people, and all people appreciate being told the truth and having a sincere apology when warranted. However, in general, anything that is said against your own interests can be used against you in Court. What’s a responsible engineer or architect to do?

Last week, I attended a thoughtful presentation on apologies by Burns Logan, Corporate Counsel for Jacobs, at the American Bar Association’s Construction Law Forum. Burns Logan

Burns’ main take aways:

1. You don’t have to actually say you are “sorry” (especially if you aren’t) to get the benefit of the strategy. You only have to include an explanation, accept responsibility, and make a reasonable offer of repair.

2. Deliver the “apology” in mediation where you don’t run the risk of it being used against you as evidence in court (most apology statutes don’t help in construction-related disputes)

 

The second point is key– mediation in most states (including North Carolina) is confidential.  Nothing can be quoted or held against you if it is part of mediation.  So, consider taking responsibility (with explanation), but do so at your mediation conference.

If you’d like to see Burns’ entire slide show, it can be found here.  Thanks, Burns, for a very informative presentation.

Questions/thoughts/comments?  Share below, or drop me an email.

“Sorry” photo (c) myguitarzz via Creative Commons. 

Anatomy of a Construction Errors & Omissions Lawsuit (law note)

hard hatsAs 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.

Betterment on Construction Projects, part 2 (more cowbell) (law note)

more cowbell sign

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.

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