Construction Defect Claims Part 1: What to Do Before the Site Inspection

INTRODUCTION
Where I live, if you drive around the DC beltway and out the Dulles Corridor, you cannot help but notice new construction is occurring almost everywhere. The new buildings being erected are marvels of architecture with unique shapes, multiple facades, gigantic expanses of windows, green roofs, and geothermal heating and cooling systems. Gone are the days of building the relatively simple, rectangular, cast-in-place, concrete edifice with a flat EPDM roof. In residential construction the story is similar. Construction techniques and materials are changing rapidly, and consumers are demanding more unique house designs with individual character and multiple exterior facades.

The ever-increasing complexity of designs, materials, construction techniques, and the near ubiquitous tightening of schedules, strains the abilities of contractors and subcontractors. Making matters worse, the complexities and tightened schedules cause the interactions among the subcontractors to become more difficult to manage. These all compound to create the conditions for defects to occur in the construction that result in claims for water intrusion, failing facades, cracking windows, excessive settlements, and many more issues. Add to that the recent issues with labor and materials disruptions, one can only expect more construction defect claims to occur in the coming years.

Forcon would like to present a short series of discussions on construction defect claims and the technical resources you will need to support your case. These discussions are written for adjusters and attorneys handling such claims, but the information may be useful to others. We will focus on choosing an expert, gathering the technical information needed, arranging joint inspections, evaluating expert reports, and preparing the technical aspects of your case through discovery. This article is the first in the series.

BEFORE YOU CHOOSE AN EXPERT
Construction defect claims are seldom simple and straight-forward. I have had few construction defect claims where the responsibility for the damages was obvious. One of the few examples of an obvious cause for a construction defect claim pertains to engineered wood trusses. When a contractor constructs a roof of the house from engineered wood trusses, they must be installed per the manufacturer’s instructions. The manufacturer of the trusses gives very easy to follow and clear instruction on how to place the trusses on the house and secure them. The directions are clear, precise, concise, and illustrative. If the contractor does not follow the instructions, which shockingly they sometimes do not, they can end up with a big pile of broken lumber suitable for starter wood and little else. I am amazed when I am called out to a house construction site and see a pile of broken trusses and find that the contractor failed to follow instructions. This is one of the rare pedestrian construction defect claims. You will probably not be so lucky because construction defect claims are usually very complex.

WHAT SHOULD YOU DO FIRST?
There is certain information that your experts will need for almost any construction defect claim, so it may help to ask for it as soon as the claim hits your desk. Those items are:

1. 1. The released architectural drawings.
   2. If the claim involves fluid from the building’s pipes, request the MEP drawings (MEP means Mechanical Electrical Plumbing).
   3. If you are representing the General Contractor (GC), request the contracts with each subcontractor.
   4. If you are representing a subcontractor, ask for the contract with the GC.
   5. Request all Engineering Changes made to the drawings. These are called ECN’s, EC’s, ECO’s, and a few other names. Regardless of what the GC wants to call them, ask for all documented changes to the drawings.
   6. If your client installed steel fabricated components, architectural glass walls, or any large equipment (chillers, generators, etc.), ask for any “shop drawings” that may have been produced.
   7. Request the installation manuals/instructions from the manufacturer if your client installed equipment.
   8. Request photographs taken by the GC or the Construction Managers of the site as it was being constructed.
   9. Ask for any pictures taken of the issues that prompted the claim. For example, if the case deals with water intrusion, ask for photographs showing where the water entered the building.
   10. Request incident reports, if any.

Almost any expert will want to have these anyway, so you might as well ask at the beginning and save some time.

DO YOU NEED AN EXPERT?
The next thing you need to do is determine whether you need an expert or not. That is a question that you will have to answer, of course, and the answers to a few questions may help immensely at this stage. The only good advice Forcon can give you at this point is to call us and email a few photos. We usually can give you some indication of what the possible issues may be so that when you have internal discussions, you will have information that is helpful. If you are lucky, a short discussion may give you enough information to give you some clear direction. Regardless, answering a few questions and looking at a few photos is not too much to ask. We would rather you find out you do not really need to hire an expert than have you hire us, and we are of little use.

If you need an expert for a construction defect claim, hire an Engineer, Architect, or a Construction Manager with the resume of an expert. It seems every time I have a construction defect claim and the plaintiff hires a contractor who has never testified as an expert, they fail miserably. I suspect this is a money saving effort, but it is actually a money wasting effort in the long run. It is a waste of everyone’s time and money to hire a contractor who has not performed as an expert in the past. Most often, contractors who have not testified, fail to understand that their opinions need a factual basis and that they need to be able to present and support that factual basis. I have seen several “experts” fail in depositions or with their reports to provide the supporting science, literature, theories, or manufacturers’ documentation to support their opinions.

Similar consideration should be given to hiring an Engineer or Architect. Some Engineers and Architects have spent their entire careers in front of a computer screen creating designs. It has been our experience that few construction defect issues were caused by design errors. You want someone who has spent time on a construction site. Engineers or Architects who were Construction Managers on construction projects often have the type of experience you need. There are many competent Architects, Engineers, and Construction Managers with applicable, on site, construction experience who you can hire.

If you are calling experts to find one that fits your needs, look for a few key factors. First, the potential expert should ask for the Complaint or for you to summarize the allegations in the Complaint. Second, the expert should know if he or she has the expertise needed to assist you. Third, your expert should be able to demonstrate that they have the appropriate experiences. For example, if the claim involves leaks around windows, the expert should have experience with the water testing of windows (by the way that would be ASTM E1105 and ASTM E331) and they should be able to state that. If the claim involves roofing, they should have roofing experience. We would like to recommend that the hourly rate the expert charges be fourth on the list of concerns after they have convinced you of the first three.

Though such effort in evaluating experts may seem overly cautious and time consuming, it will pay dividends later. Once your expert is out in the field, the other experts and other contractors will know very quickly if your expert understands the situation and the processes to arrive at an answer. You do not want your expert missing key physical evidence, or worse, disposing of it, and you do not want everyone to know your experts’ weaknesses. Spoiler alert – we will talk about evidence in the next part of this article. It will take more time in the end to fix things than you saved going with a cheaper alternative.

NOW THAT YOU HAVE YOUR EXPERT
Our advice on how to get your expert started will depend basically on how much time you have. There are usually two scenarios when starting the construction defect claim. In the first scenario, you have been told there is a joint inspection of a property soon, sometimes a day or two, and you must move quickly. This happens and all good experts have had to deal with it, it is part of the business. Any expert worth hiring will be happy to rearrange their schedule if possible and if not possible, they will refer you to another expert. If they are worth hiring, they have been through worse before. Just call and let us know the situation. We may not be available, but we will be happy to get the call.

In the second scenario, the insured has been put on notice and no specific dates have been set. If this is the case, congratulations. Send the expert everything you feel comfortable sending. If there is a Complaint, that is usually the best staring point. Let your expert go through the information for a few days and then you should have a call to discuss next steps. A critical factor to clarify currently is how you want to communicate facts of the case but, more importantly, how you wish to communicate opinions. Few adjusters or attorneys want to have email discussions about professional opinions, for obvious reasons. Just clarify that in the beginning.

After your expert has had the chance to review the materials, you will be ready for the next phase, preparation for the Site Inspection. We will discuss that in the next part of this article.

ABOUT THE AUTHOR
FORCON engineer David Uliana, PE, MS, CFEI, is a civil/structural/mechanical engineer. He is a graduate of the University of Delaware and has a Master’s Degree from Virginia Polytechnic Institute and State University. Mr. Uliana is a professional engineer registered in the Commonwealth of Virginia, the State of Maryland, the State of West Virginia, the District of Columbia, the State of Pennsylvania, the State of New York, the State of Delaware, and the State of North Carolina. He has over 37 years of experience in many different areas of Engineering. Dave is managing FORCON’s Annapolis, Maryland office. He can be contacted at (804) 363 5908 and David’s CV can be found here.