If you are a building owner faced with a potential construction defect such as water intrusion, mold, pipe leakages, roof failures, etc., the following are tips to help navigate the dispute to successful conclusion:
1. Engage Qualified Expert Early. Problems with new construction or remodel projects can manifest themselves in many forms such as water stains, drips, intermittent electrical failure, or drywall cracking.Once a problem is detected, it is important to engage a qualified expert that will have the experience to investigate all possible sources while properly documenting and preserving evidence during the investigation.
2. Provide Written Notice to the General Contractor of the Problem and all Inspections.
3. Put Your Own Insurer on Notice of the Problem and the Investigation.
- Schedule inspections early with your expert and provide written notice to the General Contractor.
- Encourage the General Contractor to put subcontractors on written notice of the problems and inspections.
- Allowing the General Contractor and subcontractors to be present for inspections will provide transparency of the investigation process; will preserve the integrity of the site; and will protect the premises owner from spoliation of evidence arguments.
4. Collect all certifications of insurance and copies of all subcontractor agreements from the General Contractor.
5. Multiple inspections will likely be necessary to determine the full scope of the problem.
6. Make sure your expert documents all inspections and testing with photographs and thorough written reports. The written reports and photographs will become key exhibits in the litigation so more detail the better to tell the story about the problem and necessary repairs (and damages). High level experts will be able to chronologically tie photographs to digital versions of plans and specifications which is invaluable evidence at trial or arbitration.
7. Provide General Contractor with an opportunity to cure the problem, and make sure to put the offer in writing. Also, make sure the proposed correction plan encompasses the full scope of damages. Importantly, you should insist upon independent verification that the repairs have resolved the problem.
8. Involve the architect early to assess whether this is a design problem or a construction failure.
9. Determine appropriate forum for dispute. Most AIA Agreements call for mediation and/or arbitration.
10. Assess product specifications in key damage areas. For water intrusion, damage path will show likely areas of intrusion in the building envelope. Understanding how products are supposed to be installed and by whom will help identify culpable parties.
Engaging counsel early to help layout the investigation process, preserve evidence, and to navigate the various layers of insurance coverage is important to posture the claim for successful resolution. Please contact James Zoccola (firstname.lastname@example.org) with any questions as he is happy to help parties through this challenging process.
Disclaimer: This article is made available for educational purposes only and is not intended as legal advice.