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.

For Engineers & Architects: Top 10 Construction Law in NC Blog Posts

top10Since 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):

  1. “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)
  2. The Sticky Statute of Limitations in NC  (the general rule: 3 years from date of service; however, there are many exceptions)
  3. Statute of Repose: Putting your Risk to Bed  (after 6 years, in North Carolina, even the exceptions to statutes of limitations don’t help)
  4. Planning Ahead for Additional Compensation  (money; cause, we all need to get paid!)
  5. 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)
  6. How to Smartly Handle Project Documents  (your policies and procedures with documents can make or break a lawsuit)
  7. The Architect’s and Engineer’s “Standard of Care”  (note: perfection is NOT the standard!)
  8. Design Error and the Spearin Doctrine (why your designs must actually, you know, work!)
  9. Active vs. Passive Negligence (sharing the blame, unequally, when something goes wrong)
  10. 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.

Of backwoods towns, train-wrecks, and feuding neighbors (i.e., an Email warning) (law note)

Train WreckWhat is it about train-wrecks that we all slow down to rubber-neck the blood, guts, and gore?  Whatever the reason, we all love to watch a good fight– especially those on-line, where people treat one another less than human.

A recent neighborhood list serve that I am a part of just had a particularly vicious debate between two people who, had they met over a cup of coffee instead of on-line, would at least have been civil to each other.  Instead, they sent verbal barbs back and forth to one another over (of all things) a door-to-door solicitor.  With the whole neighborhood watching.  What does this have to do with your professional career as an engineer or architect?  Glad you asked.  First, just a taste of the exchange:

Aggrieved Neighbor #1: 

I’m sorry for your view of the world and clear lack of broad social intelligence.  You add to the problem and underline the unnecessary drama applied to most modern dialect.  Please go get a few more degrees to convince yourself of your own intelligence.

Aggrieved Neighbor #2:

Nice ad hominem.  I never suggested that you or anyone else on this thread was lacking intelligence or motivated by ill will. Based on your last response, I still wouldn’t say that you’re lacking intelligence, but you are kind of a @#$%. Have a lovely day.


That was fun, wasn’t it?  Now, back to how this relates to your work.  These neighbors KNEW that others would see their remarks- hence the nature of a list-serve.  Now, how often do you send an email internally, not intending anyone other than your colleagues to see it?  Often, right?  Do you ever say anything inappropriate in the emails?  Off-color joke?  Tongue-in-cheek comment about the client?

Let’s say you’ve just had it with a particularly offensive client, and send your colleague this email:

Guess who changed his mind again?  That’s right, Mr. Wishy-Washy himself.  Need to revise the latest plans for the lobby area to include an extra work station.  Thanks!

Nothing too bad about that, right?  Would you like to have to explain why you are calling the client names in a deposition?  Cause every one of those emails is discoverable.

Here’s another one (modified from a real life example), sent to a former classmate in Faraway State:

Hey, Joe!  I hear that Mr. X is moving from Faraway to Random Town, North Carolina to run the Operations Facility There.  What happened to get Mr. X sent to a backwater town like Random Town, NC– hand caught in the cookie jar?  Drop me a line when you get a chance.


This email (modified ONLY slightly to prevent embarrassment by the persons involved) was actually part of discovery in a case I handled.  Now, imagine explaining to a local jury why you called them a “backwater town”.  The thing is, my client did not mean anything at all by the email– he was just ribbing his former classmate.  You know, the type of thing you do over a glass of beer.  Except here, it was documented.  For the other side.  For the court.  For the jury.

Keep these examples in mind when you are writing anything.  It’s the old New York Times rule— if it isn’t something you’d be happy to have your Grandma read about you in the NY Times, then don’t put it in writing.

Your future self will thank you.

Your turn.  Ever write or get an email that made you wince?  Think twice before sending those missives.  Jokes do not translate well in a construction lawsuit!


What the Triangle’s Construction Boom Means for Dealing with Hispanic Crews (tip)

Today, we have a guest post from Elsa Jimenez,  founder of English to Spanish Raleigh.  Elsa is a native Spanish speaker who was born and raised in a Hispanic country. She is an accomplished lawyer and translator who has been living and working in the U.S. for many years and is also a member of the American Translators Association.

Construction in the Triangle is booming. Whether new construction or remodeling, the Triangle Business Journal reports that Wake County construction permits for August were some of the market’s largest gains of the past year – roughly a 20% increase year-over-year.

The trend of new homes and multi-family home construction continues to increase in the Triangle’s towns and cities, with Cary leading the way with the most permits issued. Towns like Raleigh, Apex, Morrisville, and Wake Forest also have many new development projects planned. This makes our area a prime target for companies like Choate, C.F. Evans, Wood Partners, and other builders and contractors, as they make their way into these areas to complete these projects.

With construction being one of the top industries with Hispanic or Latino workers, this trend means much more than a booming housing and development market in the Triangle. It presents a need for English to Spanish translation of business documents, employee handbooks, and safety manuals.

Here’s an example of how one contractor met the OSHA requirements and bridged the communication language gap with more than just their business documents:


job site sign in Spanish

One of the nation’s largest general contractor construction firms here in Raleigh, NC, Brasfield & Gorrie includes Spanish translated signage in front of their Crabtree Valley Mall site.

With the growth in construction projects in North Carolina, it’s equally important to put this into context in terms of the state’s Hispanic population. North Carolina has seen growth in the Hispanic population, above the national average.

Image Credit:

Image Credit:

According to the Pew Research Center, of the Hispanics and Latinos in North Carolina, only 19% speak only English at home (138,000). 81% speak another language at home (581,000). The Spanish language is a pillar in the Hispanic community, and speaking Spanish is not going anywhere soon, making it yet another “must” for companies, builders, and contractors to translate their documents from English to Spanish.

So, as we see the housing and development market continue to grow, we are likely to see more Spanish translated materials.

Make sure your business documents – from HR forms, safety manuals, and employee handbooks – are professionally translated from English to Spanish to accommodate the growing population of Hispanics in NC, comply with OSHA regulations, and meet the growing need of streamlined communication.

The best English to Spanish translation firm will be one composed of native Spanish-speakers, who know the contextual cues and nuances of the Spanish language, and can provide the crucial aspect of cultural relevancy – things that online translation tools simply cannot provide.


Thanks, Elsa, for your thoughts.  Have you had experience dealing with language barrier issues while out and about on construction sites?  Share in the comments, below.



3 Unusual Signs that You Will *NOT* be Sued (tip)

good sign

So often, lawyers are the bearers of bad news.  What will get you sued.  Signs a lawsuit is coming.  What you can’t say (even though you’d really like to say it!).  What “wouldn’t be prudent”.  (h/t SNL).

Today, we’re turning that on its head, with 3 signs that you will NOT be facing the business end of a lawsuit in the near future.

Some good signs are obvious.  Such as when a client sends you more work, refers you another customer, or says “Hey, swell job!”  But here are 3 unusual things that are good signs, if only you understand what they are really saying:

1.  The Complaining Client.

When your client complains to you about something you’ve done, not done, or promised but failed to do, that is a good sign.  Yes, you heard right.  Complaining is caring.  It is when you don’t hear anything that you could be in the most trouble.  If a client is complaining, they are telling you that you need to fix something.  That something may or may not be fixable, but at least you know that they value you enough to *want* you to fix it, so they can continue to do business with you.  So the next time a client complains to you, remember, it’s much better to have a complaining client, which you can fix, than a completely mad one that will disappear, without a word, to the architect or engineer down the street.  Or worse still, to their lawyer’s office.  To sue you.

2.  The Always-Calling Client.

If your client calls you to talk about the project a lot, that can be a good sign?  Yes, even if they interrupt your train of thought and your design process.  If your client is not afraid to pick up the phone and call you, then you are keeping the communication lines open.  It is when you don’t hear from clients regularly that expectations are missed, misunderstandings accrue, or unpaid invoices result.  A happy client is an engaged client.  An engaged client will be in touch- often.  This is not to say you can’t set parameters, such as what times of day you return client phone calls.  But calling is good, regardless of the subject (short of a Trump-like “You’re Fired”).

3.  The No-Boundaries Client.

When your client asks your opinion on non-design issues, that is a great sign.  She wants referrals to your accountant.  He wants to know where you think he should take an important investor to dinner.  Any time you find yourself having conversations about things that are not, strictly speaking, work-related, that is a very good sign indeed.  People do business with those they know, trust, and like.  They also tend not to sue those that they know, trust, and like.

Your thoughts?  Do any of these ring true to you?   Share in the comments below.


Photo: Good Sign (c) Melissa Brumback.  Creative Commons License

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