In Part 1, we started discussing five mistakes by contractors that can create problems in construction litigation. We began with the first two mistakes.

• Mistake No. 1. Installing your work over someone else’s defective work
• Mistake No. 2. Failing to get insurance or a subcontract from your subcontractors

In this continuation, I will discuss three more mistakes to avoid.

Mistake No. 3.   Not being clear on the scope of your work

Being clear on the scope of your work can make a significant difference in your liability. Contracts usually have scope of work provisions either in the contract or in a separate addendum. Normally, these are very specific. Problems occur whenever the parties do not have the same understanding as to the scope of work. This is often because of incomplete documents or gaps in the project that were not addressed in the documents. You may have a narrower view of your scope of work than what the general contractor, owner, or developer intended. That means something may be left unfinished that you thought was someone else’s responsibility. If there is a dispute, courts will be more focused on the specific language in the contract than your understanding of your scope of work.

For example, your contract may require you to waterproof balconies. Your understanding is that you are not responsible for flashing around the door frames of the doors leading onto the balconies. But the subcontractor who installs the frames might think installing flashing around the door frames is your or the framer’s responsibility, so they do not install flashing. Of course, the subcontractor will then be making one of the mistakes that I mentioned in the previous post. The door frame installer should not be installing doors where no flashing is installed, because if they do, problems will occur, and everyone will be joined in the lawsuit.

To decide whose responsibility it was to install the flashing, the court will review the language in the contract. Your testimony that you are not responsible for installing the flashing will not be considered if the court decides the contract clearly states otherwise. The best practice is to be clear about your scope of work in the agreement.

Mistake No. 4.   Failing to follow the plans and specifications

Plans, specifications, drawings and so forth are drafted by architects and engineers and approved by owners. You are hired to construct what they designed. There will be times when you will know how to do something better or to construct something more efficiently or cheaper than what was designed. You may know of a better or cheaper product to use. You may even know that the design will not work in which case you should notify the owner or general contractor as appropriate in writing and let them decide. You should not bid on a job intending to do the job cheaper using a different design or different material than what the plans or specifications call for unless the person who hired you approves the changes.

If you do not construct the building according to the plans, then you will be viewed as responsible for any design or material problems that occur. There is even pesky case law in Texas holding that general contractors could be responsible for defective plans and specifications even though the owner hired the architect and engineer. I will address this seemingly unfair situation in a later post.

Attorneys routinely cross-examine contractors over the fact that they did not follow the design or specifications of a certified architect or engineer. It is difficult to defend against this even if your changes had nothing to do with the problem. Also, your qualifications to design a building will be compared to the qualifications of the architect or engineer whose design you changed. This rarely turns out well for you.

Mistake No. 5.   Changing your work without a written change order

This is probably the most commonly discussed mistake for contractors. You hear about this frequently, but it still consistently causes problems. I realize changes are made spontaneously as a project progresses and often need to be made quickly or project completion dates can start slipping. Oral change orders, however, tend to be forgotten or misremembered. When something goes wrong, the contractor is blamed for not following the plans or not constructing the structure correctly. People’s memories tend to change over time about who ultimately recommended the change. It is always better to have any deviation from plans or to your scope of work approved in writing to avoid any confusion later.

Conclusion

Construction cases are complex. There are many issues that can arise during construction. Ultimately, however, everyone who had any contact with any area where problems develop are usually joined in the lawsuit. Experts are hired to sort everything out. Not surprisingly, experts tend to have differing opinions about what caused the problems, and who was at fault. That causes time, expense, and stress for everyone involved. Eliminating these five mistakes may not be the most convenient way to handle a construction project, but it will save you from tremendous stress, time, and money later and will position you to be able to defend your work.

Scot Pierce, Esq. is a trial lawyer and transactional attorney.  Click on his picture for his profile page.

Disclaimer: This post contains general opinions and analysis and should not be treated as advice for any specific case.