Defending Against Claims that Your Work is Improper
by Anna G. Richie, Esq. of Olson Construction Law
Editor’s Note: ACPA TODAY is pleased to present this special article, written by Attorney Anna G. Richie. Be sure to read Olson Law’s regular column in CONCRETE PAVEMENT PROGRESS, the official magazine of the American Concrete Pavement Association. Not getting your copy? Send an email to Bill Davenport at bdavenport@acpa.org or call 847.423.8703.
If you are like most contractors, at some point your company has been accused of performing improper work. Whether the issue involves soil settlement, concrete cracking, or something else, there are several things you can do to defend against a claim of improper work.
Proving you performed your work as designed — Under the Spearin Doctrine, contractors who build in accordance with owner-provided design documents are generally not responsible for any defects that occur. As a result, there are a few steps you can take to ensure you’re not blamed for the engineer’s improper design.
First, make sure you are documenting your job progress throughout construction to prove that you have done everything specified. This includes taking photos to verify your job progress, saving any relevant test results (including any re-tests), and keeping good daily records. Second, depending on the potential cost of the issue, consider retaining a consultant or expert early on to help prove that the issue was the result of a defect with the project design, rather than your work. While this involves added cost, an outside expert may help convince the owner of your position before you are entangled in a prolonged dispute. Moreover, if you are unable to resolve the dispute cooperatively, you can rely on the expert’s work to help prove your claim at trial or arbitration.
Fault of subcontractor — If you believe the issue was caused by your subcontractor, make sure you give the subcontractor prompt written notice of the issue and send any and all related correspondence from the owner/engineer. We further recommend sending the subcontractor a letter advising them that you consider the subcontractor at fault, and you will forward any claims or letters the subcontractor wants to pass-through to the owner, but you are not responsible for any decisions made by the owner/engineer.
Perform any repair work under protest — Finally, if you are unable to reach an agreement with the owner/engineer regarding the allegedly defective work, you should still perform any repair work demanded by the owner. While you may be adamant that you did not cause the underlying issue, the owner will likely charge you for the cost to perform any repairs to your work. As a result, by self-performing any necessary repair work (after preserving your rights under the contract), you can control the underlying costs and then bring a claim to recover your extra costs.
Note: If the owner fails to give you the opportunity to cure the allegedly defective work, this can result in the owner waiving its claim against you or a reduction in any alleged damages incurred by the owner.
In summary, contractors can reduce their exposure against claims of improper work with careful construction and good management practices. In fact, with more and more projects being under-designed, contractors must be aware of the defenses they can use to defeat an unfounded claim of improper work.
Note: This discussion is generalized in nature and should not be considered a substitute for professional advice. For more information, contact Olson Law at 651.298.9884 or on the web at https://olsonconstructionlaw.com/