Joint & Several Liability in NC (law note)

British pennies & poundsIf a client has been sued, he wants to know how much is at risk if he loses at trial.  This is especially true where more than one person or company have been sued.  How is any damage award apportioned?

 The answer is not one clients generally like to hear:  your company can be on the hook for 100% of any damages.  This is true even if your company is really only liable for a tiny fraction of what caused the damages in the first place.  You can thank “joint and several liability” for that.


For example, in a fairly typical construction dispute, an owner sues a contractor and the architect for construction defects. The contractor uses unsuitable substitutions, and the architect approves the unsuitable substitutes.   Both contractor and architect may be held liable for the resulting damages.  If a jury awards the owner $500,000, then both contractor and architect are liable for the entire $500,000 to owner.  That’s the “severability” part of the law.  As between the two, of course, they both share in the damages, and if the owner executes on the entire judgment against the architect (perhaps due to the architect’s insurance coverage), the architect can then go after the contractor for an equal share and get paid back $250,000 in “contribution.”  (That’s the “joint” nature of such an award).  This is, however, assuming the contractor has those funds.  Essentially, whoever has the funds when a judgment hits might end up paying for the entire award.  If the contractor doesn’t have $250,000 for the architect to be paid back, the architect is out of luck.

Does the result change if the jury finds the architect was only 5% liable for the damages and 95% were attributed to the contractor? Nope.  In North Carolina, where the parties’ actions together contribute to one indivisible injury, there is no apportionment.  “In for a penny, in for a pound” as the old saying goes.

Exceptions to the Rule?

Are there exceptions? But of course!  If the owner is also negligent, he can get no recovery at all since North Carolina is a pure contributory negligence state.  If one party is actively negligent and one passive, than the passively negligent party can seek indemnity from the active party.  If one party settles before trial, things become more complicated.  More on these subjects in future posts.  I’m also told that in other states apportionment is more the rule, so you may have better luck with your out of state projects in a similar situation.

As a general rule of thumb, however, for your North Carolina project, just assume that the entire amount of claimed damages may be presented to you for payment.  Unfair? Many times, yes.   That’s the nature of the beast.  It is also one of many, many good reasons to make sure you are doing business with people you trust and, more importantly, that other professionals are appropriately insured or bonded on any project you are working on.

If you have any questions about joint and several liability, drop me a line or a comment below.


Photo “Shiny pennies” by David Pillbro (Flickr Creative Commons license)


Tues Tip: Two upcoming NC Building Expos

Two Building Expos are coming to North Carolina.  If you want to increase your knowledge of building issues, consider checking one or both of the expos out!

First up, is GreenNC’s North Carolina Building Industry 6th Annual Tradeshow,  scheduled for September 9, 2010, at the McKimmon Center in Raleigh.  The event is free to attend.  There will also be a keynote luncheon ($35) by Bill Reed, AIA, LEED, Integrative Design Collaborative.


Second, the 21st Century Building Expo & Conference will be held September 15-17, 2010 at the Charlotte Convention Center.  Conference passes start at $75 and increase if you want CE credit. The Expo promises over 50 general session seminars, North Carolina Builder Institute courses and NAHB Education classes.

If you plan to attend either or both of these events, let me know and we can try to meet up in real time.  Secondly, I’d love to know your thoughts about these conferences.  What were the valuable things you learned?


Tolling the Statutes of Limitation & Repose? (Law note)

Lowe's Motor Speedway

A blog reader recently raised the question of to how to handle construction defect claims while repair attempts are being made on a defective building.  In part, the answer to this question will depend on how close you are to the statute of limitations or the statue of repose from running.  The closer you are, the more you need to be concerned about this issue.  Just because all parties are working together to solve construction issues does not mean that the statutes are not running.  They can.  [There are, as usual, exceptions for equitable reasons.]  And once statues run, there’s no getting them back.

One prudent approach to dealing with the statutes is to have all parties involved enter into a “Tolling Agreement.”  What a properly drafted tolling agreement can do is to stop the running of the statue of limitations and/or repose while the parties attempt to fix the defects or otherwise settle their issues with one another.  Note that the tolling agreement does not give a party any greater rights than they would have at the time it is signed– that is, if the statute has *already* run, then it would be of no use.  But the tolling agreement can act as a “time out” on the running of the clock.

A good example of a tolling agreements is found in the Court of Appeals opinion in Charlotte Motor Speedway, Inc. v. Tindall Corporation, 195 N.C. App. 296, 672 S.E.2d 691 (2009).  The Speedway case involved the infamous collapse of a pedestrian walkway during the NASCAR Winston Cup.  The walkway which collapsed had been substantially completed by October 1995, and the collapse occurred in May 2000.  Speedway (the project owner) and Tindall (which constructed the walkway) entered into a tolling agreement:

“to toll and suspend any applicable statute of limitations, repose or time, whether created by statute, contract, laches or otherwise, within which any cause, claim action, cause of action, or suit must be made, or commenced by the parties against any one of them concerning the [pedestrian] claims, including any and all claims for indemnification and contribution.”  Id. at 298, 672 S.E.2d at 693.

Tindall attempted to argue that the statute of limitations barred Speedway’s claim for indemnification of monies paid prior to three years before it filed its complaint, but the Court found that the Tolling Agreement, which remained effective “through and including January 1, 2006” tolled the action, and Speedway brought suit on July 17, 2007, less than two years after the Tolling Agreement expired.  Likewise, the Court held that the statute of repose did not bar the action, because the Tolling Agreement was entered into less than six years after substantial completion, and the lawsuit was brought during the pendency of a second funding [tolling] agreement between the parties.

If you are considering a tolling agreement (or think you don’t need one because you “have time”), it is always smart to get a professional opinion on the matter.


Comments? Let me know.  I welcome the opportunity to discuss how the statute of limitations and repose may be tolled in your specific situation.


Photo “Trucks” by JMLeedy (Justin Leedy) via Flickr via Creative Commons License.


Tues Tip: 8 Best Collection Practices

crayon tips



 Readers of this blog may not know this, but in addition to construction law I also head our firm’s Collections practice.  What that means is that, once your client is no longer paying your bills or taking your calls, you can hire our Firm to either (1) get the client’s attention or, failing that,  (2) sue the (former) client for unpaid fees or merchandise.         However, if you establish good collection practices up front, before you extend credit to any client, you may be able to avoid having to hire a collection attorney to do the dirty work for you.  Here are my top 8 collection practice management tips:


 Be careful on the front side in who you extend credit to. Get personal guarantee if possible.  Make a copy of the person’s driver’s license. (This helps if you have to sue to collect). Check their credit.


Have a written contract.  Failing that, a signed purchase order agreement, with contract terms on the back, would be good. Just don’t rely on a handshake.  You can include language for interest (up to 18% per annum in North Carolina) and reasonable attorney fees and collection costs.  If you don’t have this in writing, you may not be able to get these items later.


With the first payment by the customer, make a photocopy of the check.  (This is helpful to know where they bank in case they later stop making payments).


Bill regularly- at least monthly.


Charge an interest rate on past due accounts so your money isn’t being used for your client’s “float”.


If you are in the position to file a mechanic’s lien (contractor, subcontractor, etc)– be aware of time deadlines for both (1) filing a lien and (2) perfecting that lien.  These are state-dependent so consult an attorney in your state.


Create a system for large A/R accounts.  For example, when account is X days late, send a polite but firm demand letter.  When account is Y days late, initiate lawsuit/have your attorney send demand letter.


Consider alternative payment arrangements.  If your customer acknowledges the debt, and is willing to sign a note or confession of judgment, you can offer payment terms.  If the payment terms are not met, then you can file the note and judgment.

Bonus tips– Steps for after a judgment, to help your collection efforts:

  • Send a copy of the debtor’s drivers license to the sheriff for execution on your judgment.
  • See if your jurisdiction allows for the seizure of bank funds.  If so, provide the banking information to the sheriff to aid in his seizing assets.
  • If a judgment comes back with “no assets,” consider having your attorney serve supplemental discovery questions if allowed in your jurisdiction.
  • Some states (but NOT North Carolina) allow you garnish wages.  Ask your local attorney if this is an option.


Comments? Questions? Other good collection practices?  Let me know in the comments section or drop me a line.   And sign up for email updates by putting your address in the box on the top right so you will not miss any posts.


Photo “Crayon Tips” by laffy4k via Flickr via Creative Commons License.


Follow your Change Order Requirements

 check markIt is extremely important that you follow your written contract requirements.  No where is this more evident than in the change order process.

Most contracts have an explicit provision for the payment for additional work– and they generally require a written, signed change order (or change directive) before the work is performed.  Can you get by with verbal agreements for additional work? Sometimes yes, sometimes no.  Will it be much harder to get paid for additional services without a signed change order? You bet.  So why put yourself through that trouble?

Often times parties begin to “waive” formal requirements for written change orders, and construction projects are often on tight deadlines where stopping work to get a fully executed change order would bog down the schedule.  However, you run the risk of throwing yourself on the mercy of the Court when you don’t play by the contract rules.

A new case out of the Eastern District of Virginia demonstrates this fact very clearly.  In Artistic Stone v. Safeco, 2010 WL 2977894 (E.D.Va July 27, 2010), the Court held that the requirement that change orders be in writing was to be strictly construed and the subcontractor in that case could not recover for verbal change orders that violated the written change order requirement.  The Court held that where there is a method to ensure recovery of additional extra work in the written contract, the subcontractor could not recover additional money when it failed to follow that method.

“Written change order requirements maintain order and predictability in the construction business, and are meant ‘to avoid subsequent disagreement, and prevent just such a controversy as has arisen in this case.  For this reason, ‘where there is a method under the contract by which a party can insure the recovery of the cost of extra work, that party is not entitled to recovery where it fails to follow that method.'” Artistic Stone Crafters at 5.   [Internal citations omitted.]

A North Carolina court would likely concur.

To ensure you can fully recover for extra work, make sure it is authorized.  Follow the contract.  If circumstances make it so you cannot always follow the contract terms, document the situation as best as you can.  A follow-up email, confirming a verbal change order, would at least provide written evidence you can present in Court, should it come to that.  Otherwise, arguments can and will be made that the person who gave the change order wasn’t authorized to do so, and you may be stuck with no recovery for the extra work.


Photo “white check mark on blue- acrylic on canvas” by kylemac via Flickr via Creative Commons license.