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Who to sue when the work fails after construction


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Sandy's Forum Posts: 2

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By Sandy in Whites Creek, TN on 1/7/2006


I am not at the construction phase yet.  In fact, I'm not even sure that I'll be owner-building.  My wife is a lawyer, and her firm has a substantial litigation/personal injury department.  Unfortunately, this colors her perspective of the world of construction and makes her paranoid that anyone who we hire, as owner-builders, is going to perform shoddy workmanship that won't show up until after the construction phase is long completed. 

Her example is some roofing guy who completes the job, but three years later problems develop and he's gone out of business.  Our roof leaks, before we noticed it, it damaged the insulation in the attic and ceilings on the second floor.  Her suggested recourse is to "sue the GC, because at least he'll either fix it or we'll be financially taken care of." 

She believes that, at least in commercial construction, the GC carries insurance to handle these scenarios and is better equipped to either extract a repair from his sub or absorb the cost of hiring a new sub to fix it.  She feels that O-B's are much less protected against shoddy workmanship because we have no first line of defense if the sub goes out of business and there is an issue with his work.

I've read about workman's comp, builder's risk, and general liability, but none of these help me to respond to her concern about who is left holding the bag in the situation she's described.

Suggestions?

Sandy


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By Kenneth in Lees Summit, MO on 1/7/2006


I know several attorneys, some of which have had material defects with their houses and used the legal system to obtain the necessary repairs.  However, as an engineer, I would say that by and large the idea is to avoid litigation to the greatest extent practicable.  The attorneys I know that have had building problems, the building problems would have been readily identified prior to closing (even though the problems didn't show up until much later) with a qualified engineering inspection, the shoddy workmanship was that evident.  In all of these cases, lawsuits could have been easily avoided by using a qualified independent inspector prior to closing.

I don't practice my own law (I have enough respect for other professionals to not do so), your wife should have enough respect for other professions to not practice engineering.  Hire an engineer to do inspections, you will quite likely avoid lawsuits.

O-B is the best way to avoid shoddy workmanship and to avoid lawsuits.  In a new house, you would be surprised as what can be hidden behind the sheetrock or concrete.  I have talked to concrete companies that will tell you about foundation contractors that will remove 1/2 the steel in the foundation between the time the building inspection takes place and the concrete truck gets there (in my locale, the inspector isn't on site when the concrete gets poured).  If this is a house you buy, you have no way to know if this defect is there or not without destructive testing.  If this is a house you O-B, and you are there every day, you know that no steel disappeared in your foundation.  This is one example, there are many others.

As an O-B, it is your responsibility to make sure you have good construction.  You perform to your expertise, you hire what you don't know.  The same way you hire an electrician, an HVAC contractor, a carpenter, or any trade, if you don't have construction experience you should hire an independent inspector.  DO NOT rely on your code inspections for quality control, their interest and yours are considerably different.  They inspect to minimum requirements and are interested in life safety (ie. size of windows, GFCI, etc.) you are interested in quality of construction.


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By Michael in Cave Creek, AZ on 1/9/2006


Owner-building is about taking responsibility for a construction project that you own and are building for your personal use and enjoyment.  The best way to do this is to communicate openly with your building team.  Assigning blame will generally prevent a construction project from proceeding smoothly.  You are personally responsible for quality control. You can delegate some of the authority to experts such as engineers, test labs or superintendents, but you cannot escape ultimately responsibility.  If there are glitches you need to use some of the O-B savings to correct the problems. The more educated you are in the building trades, the fewer problems there will be.

In a busy market, many of the best tradespeople will not work for people who seem inexperienced, litigious, disorganized or were not referred to them by a known builder or tradesperson.

In terms of quality control the things that can cause the most grief would be poor foundations and uncorrected entry of water to any part of the structure over a period of time.  Everything else can probably be handled without too much grief.

If you are not comfortable with this, owner-building may not be the best choice for your personal situation.


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By Kenneth in Lees Summit, MO on 1/10/2006


Michael brings up some good points.  Almost nobody on my job site knew my background, the only people that knew were architect (and he didn't come out to the site) and my HVAC tech (I used to work with his father).  Getting subcontractors to bid work when they know their work will be scrutinized by an engineer will automatically increase your bids by 30% or more.  I have some friends that are both project engineers, when they built their house they couldn't even get bids because they made it known to all subcontractors up front, none of them were willing to bid the project.  Based on being able to talk to subcontractors, and my knowledge of building, all of them thought I was from the trades although they didn't know where.  I could talk quality of work in almost any trade, identify quality of work, ask about why they were doing certain things on a daily basis, talk code requirements, etc.  Even my code inspector didn't know my background.

I was at a party, and one of my subcontractors was talking to another person at the party about doing some work for them.  I recommended that he avoid the job at any cost, as no matter what it looked like on the surface he was guaranteed to lose money in addition to risking court costs and delays as they were very litigous attorneys.

Michael is correct though, your house is your responsibility.  If you don't know what good construction looks like, hire an independent inspector (that works for you) to help you putting together bid requirements, assessing quality, and identifying how to incorporate quality into the construction project.  The biggest problem around here (and in general) is water management.  If you can't manage the water, you will have problems.  This starts with footing tile drains and exterior grading (and probably done pretty well for the most part) but flashing is a key component.  I rarely see properly flashed houses, and all of this gets covered up by finish materials and won't be identified as a problem until several years later when the problems stemming from water intrusion become apparent.  At that point, it is quite expensive to fix, especially considering that proper flashing costs no more than improper flashing, it is all technique.  From what I have seen, flashing is the single largest deficiency in modern residential construction, although every manufacturer has the proper techniques on their Internet sites and it doesn't take a whole lot of education to look at a picture and determine whether the actual flashing technique used follows the picture.


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