Search Results for: construction administration

Is there a dead body in your future? The first sign of trouble on the construction project (Law & Order: Hard Hat files Part 1)

fake dead bodyNobody dies in a construction dispute.  At least most of the time!

However, just as the usual “thunk-thunk” chord in Law & Order warns the viewer that something is awry, there are warning signs that your construction project may be under similar dire straights.  You should recognize these signs for what they are—early-warning lawsuit detection devices.  Signs that a lawsuit may be in your future include:

  1. The  “everything has gone wrong” situation.  This one is fairly big and obvious, but it bears mentioning.  If the project is delayed, over budget, and there are signs that the owner is looking for someone to take the fall, watch out.
  2. Much more subtle, but equally troubling, is the start acting squirrely” syndrome.  If you have always had a good working relationship with the general contractor, but suddenly he is aloof, watch out.  If the owner is usually friendly and free with the flow of information, and he suddenly begins to clam up, be concerned.
  3. The let’s document everything” protocol.  Now, as a lawyer, I feel duty bound to tell you that I think documenting everything is best management practice.  However, I do know that most normal folk don’t usually behave this way 24/7.  So, if you are on a project where a contractor likes to write letters to the file almost as much as he does change order requests, be leery.  Could be he just listens well to his lawyer’s proactive advice to document everything.  Or, could be he is preparing a case from the get-go to claim design failures, construction administration delays, and the like.  How to tell the difference?  Often, you can only go with your gut.  But take note—is Mr. Letter Writer documenting everything, or just items that might be considered “blame-able” ?
  4. The I’m confused” RFI king.   Similar to #3 above, but more specific, the confused RFI king always seems to need clarification or further information about your design.  The requests for information flow so fast, you may have trouble responding timely.  This may be part of the plan.  Or, it may simply be a numbers game— either the contractor is asking RFIs to buy time on the project (often on a case with strong liquidated damages provisions), or he wants to later be able to point out the “excess number of RFIs” to prove “bad design.”

 Now that you’ve caught the whiff of trouble brewing, how do you stop it before the dead body smell takes up residence in your car?  Observe, document, and respond in kind.

If you are dealing with an RFI king, respond timely, and note when the RFI is asking for information that is readily available on the plans.  You might even consider keeping your own running log of questionable RFIs, so you can readily show your lawyer, and a future jury, that although there may have appeared to be a large number of RFIs on the project, the fact was that most of them (X percentage) were questions about something that the contractor should have already known if he had reviewed the plans.

If you have a “document everything” guy on your hands,  respond in kind.  You should be doing this anyhow, of course, but if you have someone that is especially prone to documenting everything, you need to be extra vigilant that he is not stating anything that is untruthful, that the documentation is complete, and that any time you get a document that doesn’t completely tell “the truth, the whole truth”, that you supplement it with your own documentation accordingly.

If you have a squirrely acting client, you might consider just politely confronting him to ask if anything is going on.  It could be something that has nothing to do with the project –  internal politics, personnel crises, etc.  In which case, you will find that out.  If there is something more sinister afoot, you can probably determine that as well.  The key here is to ask whoever you are (or had been) close to, and to ask them off the record, in person.  You can learn a whole lot through non-verbal body language.  If you find out, directly or indirectly, that there may be a claim afoot, then you can proceed accordingly.

If the project has gone to hell in a handbasket, there is not a whole lot you can do, other than to keep ensuring that you and your team are meeting all contract requirements.  Part of this should include documentation for the eventual lawsuit, if it comes to that.  You might also contact your lawyer or insurance company for assistance behind the scenes—something called “loss prevention”.  Remember, reporting the dead body is the first step to clearing the air.  It’s the cover up that usually gets folks in trouble.

Now it’s your turn.  Drop me a note or comment below to share your own techniques for recognizing possible lawsuits.  Next week in the series: the mechanics of being sued.  Stay tuned!

Photo (which is not of a *real* dead body) (c) garlandcannon via cc. 

 

Explaining Negligence in the Construction Industry (Guest post)

Today, a guest post by Anne Roberts.  Anne Roberts is a freelance writer. She writes blog posts, how-to articles, SEO copies, and many other types of content for several websites. Anne is currently a web content writer for personal injury attorneys.  (But we like her anyway!!)

Explaining Negligence in the Construction Industry

The construction world can be regarded as one of the most dangerous industries to work in. Because of the inherent hazards that come with working on a construction or repair project, both construction professionals and laborers uphold certain standards to ensure a safe working environment.

Contractors, surveyors, engineers, project managers to employers–all have a duty of care to observe. They make sure that assessments of risks involved in any facet of construction are made. Laborers, on the other hand, benefit from the assessments by exercising preventive measures.

Still, accidents happen.

Acrobatic_Construction_Workers

Some of the most common accidents that occur in construction sites involve six-feet-or-more falls from ladders or stairs. Other accidents are caused by the failure to implement safety precautions, such as improper building of scaffolding, use of dangerous tools and unsafe machinery, and other hazardous issues.  Without proper implementation of safety precautions, working on an elevated surface may result to debilitating injuries and even death.

According to the Bureau of Labor Statistics (BLS), it has been estimated that fatal accidents involving construction workers accounted for 15 percent of all job-related deaths in the U.S.  Such injuries or deaths may not have happened if a certain construction or repair project employed safety rules or standards of care. Such occurrence is categorized as construction negligence.

Determining Liability 

When a serious accident happens, usually all parties involved are brought into the litigation, as cross-allegations of construction safety issues, construction defects, and construction administration/observation/inspection issues.  In North Carolina, an employee cannot sue his employer for a workplace accident (but instead seek a workers’ compensation recovery).  The employee can, however, bring a negligence action against any/all (other) responsible third parties.  [Editor’s Note: The parties may have rights to recover against each other if one is actively negligent and one is only passively negligent.  Otherwise, joint & several liability applies.]

To establish negligence, the injured party must prove the following four factors:

  1. The construction professionals involved have a duty of care;
  2. They breached or violated that duty of care;
  3. The breach of duty of care resulted to an injury; and
  4. The injury was the result of the construction professionals’ negligence.

[Editor’s Note:  The injured party also must not have been contributorily negligent.]

Other than in a construction or repair project site, construction negligence also happens on highway construction and post-construction efforts. Unsafe conditions during roadwork can be considered negligence, especially if workers, as well as motorists, consequently sustained certain injuries.

Even a complete building can be a source of negligence, in which the contractor or subcontractor failed to adhere to building codes. Construction defects, such as low structural integrity of the building, mechanical and electrical failure, and low-quality finishes, may lead to injuries and deaths.

Melissa again:  Thanks Anne for your post!       Readers:  Watch this space– I’m planning on posting an infographic tomorrow that will show construction accidents & related statistics.  Stay tuned.  In the meantime, please leave any questions or thoughts in the comment section, below.

 Photo of workers on bamboo scaffolding (c) Terrance TS Tam.

 

 

 

Planning Ahead for Additional Compensation

money for additional services for construction administration

Does your designer contract have provisions in it for additional compensation in the event the construction project takes longer than the parties anticipate?  If you use the AIA 201 (2007) general conditions for the Contractor, it may.  The AIA provisions include:

 

 § 1.1.2 THE CONTRACT

The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind (1) between the Contractor and the Architect or the Architect’s consultants, (2) between the Owner and a Subcontractor or a Sub-subcontractor, (3) between the Owner and the Architect or the Architect’s consultants or (4) between any persons or entities other than the Owner and the Contractor. The Architect shall, however, be entitled to performance and enforcement of obligations under the Contract intended to facilitate performance of the Architect’s duties.

The language that I bolded is very important language.  It may provide a mechanism to recoup additional service fees for extended construction administration services.  Note, however, that I said “may.”

If your fees are based on a set number of construction days, what happens if the project gets extended?  Do you simply go without pay for extra months of CA services?  Do you re-negotiate with the Owner at that time?   You should consider this issue in advance to avoid disputes later on. 

Best practice?  A clause in the Owner-Designer contract that states that additional services compensation will kick in after a certain date,  at a set value per month.  

If you wait until the issue comes up during the final phase of construction, you have much less bargaining power.  You also run the risk of the Owner claiming errors and omissions against you when you present a bill for extra services.  Deal with the issue up front, in much the same way that unit prices for rock overages are provided for upfront in the contractor’s contract. 

Do you have experience with getting additional compensation after construction delays?  What worked best for your company?  Share below. 

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 Photo (c) Freefoto.com via Creative Commons license.

 

About Me & Contact Info

Melissa Dewey BrumbackMore than You Ever Wanted to Know About Me…

Hi!  My name is Melissa Dewey Brumback, and I am  a partner at Ragsdale Liggett PLLC, a law firm in Raleigh, North Carolina.   I chose the legal professional quite simply because I love to argue debate.  Seriously.   After losing one too many debates with me in my younger years, my dad told me I should become a lawyer.  Voila!  Here I am.

I believe that design professionals perform an important role in our Society, but they often get the short end of the stick when a problem arises on a project.  Owners and contractors are quick to point the finger at the architect or engineer when something–anything–goes wrong.  Don’t get me wrong– sometimes a designer does screw up, and needs to compensate for it.  However, often the architect or engineer is brought into a lawsuit simply for his/her “deep pocket”  [insert chuckle here] ability to pay.  That’s not right, and it’s not fair.  I view my job as standing up for professionals, fighting the legal battles for them, so that they can go back to doing what they do best.  Which is not, hopefully, arguing.  That’s my job.

Who do I represent?

My clients include multi-national engineering companies, regional architecture firms, state-wide design practices, and one man shops. Working together, we can keep your risks low, your costs manageable, and your focus on the design work you love—not on lawsuits and the courthouse.

Why should you contact me?

If you are a construction industry professional who needs a contract drawn up, have questions about a project that might be headed to court, or are looking for help in reducing your risk of future litigation, you’ve come to the right place.  My number one goal is to help clients avoid court. That starts with having good procedures in place, properly reviewed & negotiated contracts, and good documentation before you even begin the cocktail napkin sketch for a client.

 Want to read some of my most popular posts?

General Risk Avoidance Tips

Liability Issues

Timeliness of Claims

Want more traditional bio information?  Okay, here you go:

I am an AV-rated partner in Ragsdale Liggett’s litigation department, concentrating on complex commercial, business and construction litigation. Most of my work consists of representing architects and engineers in construction-related claims, including construction administration and management, plan defects, testing failure claims and delay claims.

I have represented design professionals in State and Federal courts as well as in binding arbitration.  My practice includes the defense of all sizes of claims, from residential homeowner cases to private commercial construction to multi-prime public construction projects.

I am admitted to practice in all State and Federal Courts in North Carolina, as well as the 4th Circuit and the United States Supreme Court.  In addition to construction cases, I also handle commercial litigation, business disputes, medical malpractice defense, product liability defense, and director & officer liability.   Finally, I head the creditor’s rights/collections practice group at Ragsdale Liggett.

Click here for my Official Firm Profile.


Contact Details:

Melissa Brumback@ Ragsdale Liggett, 2840 Plaza Place, Suite 400, Raleigh, NC 27612

Direct Dial:  919/881-2214    Email:  mbrumback@rl-law.com    Twitter: @MelissaBrumback

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Legal Disclaimer and Note  [I am, after all, a lawyer!]:   I welcome your feedback, thoughts, questions, and suggestions.  If you are interested in legal representation, let me know and we can discuss whether or not I will be able to help you.  I look forward to hearing from you.  Remember, however, you are not a client just because you contact me. We’ll both need  to see if I’m the right lawyer for your needs. [Plus, clients generally pay me!]

Scope of your Design Services: Make Yours Detailed to Save Cavities Later! (Law note)

I’ve written in the past about the benefits of having not only an explicit Scope of Work, but also a set of Exclusions from the Scope of Work, in your proposals and contract documents.  Recently, this issue has come up again for me in the course of advising clients who are now facing litigation over whether or not a particular service was to have been part of their lump sum design fee.

scope mouthwash versus scope of services
Do you know what is in your Scope of Services?

————————————–

The Scope of Services (and related Excluded services) should be as detailed as possible.  Consider all of the typical issues that can derail a project, and address them upfront, such as:

  • Additional Services: are they needed? How are they compensated?
  • The Proposal v. the Contract Description—which prevails?
  • Value engineering issues — does the designer share the credit?
  • Extended construction: Is A/E paid for extended delays leading to additional on-site administration?
  • Contingencies & Assumptions included in the design?
  • Number of bidding rounds included in the A/E’s fee before additional compensation is due?
  • Delivery of Owner equipment (Fixtures, Furnishings & Equipment) and delays associated with same?
  • Safe harbor provisions for expected errors & omissions?

This is just a short list of items to consider when drafting your Scope of Services. Remember, an ounce of prevention is worth a pound of cure, so make sure your proposals and contracts have thought through the entire scope of possible services prior to starting work.

 Thoughts? What issues have you run into on construction projects that could have been prevented with a good Scope of Services provision?  Share below.  
 
 
 
Photo (c) mandolux via CC.

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