Construction Defect Claims Part 2: The Site Inspection
Published March 15, 2022
By: David Uliana, PE, MS, CFEI
In the last discussion, we covered recommendations for obtaining documentation, choosing an expert, and getting your expert familiar with the case. For most construction defect claims, your expert will want to either conduct or participate in a site inspection.
WHAT IF REPAIRS HAVE BEEN MADE?
It is not unusual for a claim to be submitted after repairs have been made, thereby making your situation more difficult. General Contractors and building maintenance personnel are under pressure to fix problems to satisfy developers and owners. They are not thinking about the potential for an insurance claim and the importance of preserving evidence. If this occurs, your expert has a much tougher job, but still may be a great help to you. If you have been provided photographs taken while the repairs were being made, you may be tempted to assume they are sufficient information to proceed with an expert. My experience has been that photographs taken by a contractor during repairs are usually focused on the repair, and not the situations and conditions that lead up to the repair, and as such, photographs are of modest assistance in determining a cause. Have your expert review the photographs first. Often, we can evaluate the value of the photographs for evidentiary purposes relatively quickly.
SETTING UP THE INSPECTION
There are a number of different philosophies adjusters and attorneys take when this portion of the construction defect claim arrives. Some like to handle all the communication and organization of arranging the inspection, usually for good reason.
If you rely on your expert to arrange the site inspection, that is if you represent the GC or developer, that expert should do the following:
- Communicate with all parties involved in the case.
- Arrange a suitable time that is also suitable to the property owners and renters.
- Be prepared to collect physical evidence that would reasonably be expected to be collected. There are several companies that will come to the site and remove large pieces of evidence. They are expensive but they can be well worth it. You do not want to fail to collect critical evidence.
- Prepare, distribute, and update the inspection protocol with input from all parties.
- Arrange any special equipment, such as a manlift or scaffolding, which might be needed to allow everyone to observe.
- Keep the investigation organized. They should be the one organizing the movements of all the experts so that the inspection does not dissolve into a group of engineers wandering around a site.
- Engineers should have the typical PPE, but sometimes there are special situations, and your expert needs to be prepared. For example, if you have a manlift or scaffolding, harnesses should be present. If roofs are to be accessed, warn the attendees to bring fall protection. If you warn people and they are not prepared, it is their problem.
WHY YOU SHOULD INSIST ON AN INSPECTION PROTOCOL
An inspection protocol is a document that defines how the inspection will be conducted. It is the opportunity for all parties to agree on the date and time, who will be leading the inspection, what will be done at the inspection, what physical evidence may be removed, who will remove the evidence and how it will be removed, and what testing might be performed at the site. Since every case is different, the protocols will be different. For some cases all those steps may be conducted. For other cases, there may be little more than allowing photographs to be taken.
Typically, the expert working for the general contractor, or the expert working for the developer, is going to take the lead on arranging the site inspection. Usually that expert sends out a proposed protocol and requests additions, deletions, changes, and arranges the date(s) for the inspection.
Little of what was just presented is new or surprising. However, surprises may occur, and you should be ready to deal with a few of the more common surprises. The first surprise might be that the expert for the GC or developer may set the time and date yet does not provide an inspection protocol. Do not let your expert get to the site without an agreed to protocol unless there is a very good reason, and I have not seen one yet. I was on a case once where there were allegations about stucco façade on many houses in a development. We requested a protocol but received no response from the plaintiff expert. When we arrived at the site, I asked the expert what he planned to do at which he responded, “That’s not how this works. Experts don’t share information!” after which he proceeded to cut large sections out of the stucco in more than a dozen areas, throw the removed material on the ground, took a few moisture measurements, and left. The other experts and I let our clients know that the inspection was basically useless. They had a new expert for subsequent inspections.
Another surprise that occurs when the protocol is prepared with lack of proper thought, is that it may be unfeasible to conduct when everyone arrives at the site, resulting in a sudden rewriting of the protocol. Sometimes the group is too large to allow for everyone to witness what is occurring and sometimes the locations may be inaccessible for some experts. The morning of the inspection is no time to find out that someone cannot climb up to the inspection area, or much worse, the inspection area is in a large tank and ventilation is a problem.
Another surprise may occur if the attending parties are unprepared to transport the evidence needed from the site. If large pieces of evidence might need to be collected, provisions should be agreed to beforehand. On one of my cases, the roof of a building was being raised using hydraulic cylinders to provide more space. During the night, the structure being lifted collapsed. At the site inspection two days later, the experts at the site never had an agreed to protocol, so did not anticipate the need for evidence retrieval and storage. They were not able to remove or secure the hydraulic cylinders. Unfortunately, the cylinders were removed and disposed of a few days later during demolition because they were not properly identified or tagged, and the demolition crew was instructed by others to remove the debris. Had some forethought been exercised, the lead expert could have called any one of several companies that deals with removal and storage of large pieces of evidence to be in attendance. By the way, I was brought into the case after the site was cleared and was not part of the initial inspection.
Lack of proper planning before the site inspection can avoid very serious problems later. Many things can happen that can easily derail a case if a proper and conscientious protocol is not prepared. We hope that these few anecdotes impress in your mind why the inspection protocol is necessary and should be developed jointly with serious effort and forethought.
WHAT TO LOOK FOR AT THE SITE INSPECTION
This is where you must lean on your expert and trust that he or she is prepared and collects all available information to help determine the cause of the failure. That is their job. It is almost always beneficial for you to see the site to help you understand the allegations in the complaint, so attending the inspection is recommended for most cases. However, the experts are likely to spend much more time on details and evidence collection than you need to see. What I have found usually works well is that the adjusters and attorneys are present for the first hour or two of the inspection, after which they can leave the site and allow the engineers to pick through it for the next few hours or days. That is your call, but the value of being present for adjusters and attorneys diminishes quickly after the first few hours, while we engineers are just starting to get into the real details. We will not take it personally if you decide to get back to your office after a few hours on the site.
Most experts will just be communicating among themselves discussing what is needed to keep the process moving along with some small talk, so it is doubtful that anything useful to your case will be said at the site among the attendees. You should feel free to pull your expert aside and discuss the situation with him or her at any time, especially before you leave. They will be able to tell you interesting bits of evidence they found and what their next steps might be during the inspection. However, occasionally, a contractor involved in the claim may start saying things and they may be noteworthy. When I hear certain things, I usually write them down and they spring up later to be important. For example, if one of the contractors states in a site investigation, “that was installed per code,” take note as to what that contractor is discussing. I have noticed that often what is being discussed was either not installed properly or there is not code provision that directly covers it. Have your Engineer take note and look up the code reference, if there is one, that covers the discussion item. A corollary to this is when a contractor is accusing another subcontractor of not doing something to Code, take note.
I had a case once where I was hired by the insurer of a roofing contractor who had reroofed a building. One of the allegations being made by the contractor for the Plaintiff was that the roofer, the insured, did not install the roof with a proper slope according to “code.” This contractor was acting as the Plaintiff’s expert and was, curiously, also replacing the roof. Because of the alleged improper slope, the expert for the Plaintiff needed to replace the entire roof for a cost of almost $2,000,000, he stated. We had three inspections and each time the Plaintiff’s expert stated the same thing, that one of the main issues was that the roofer (the insured) did not provide proper slope in the roof. Curiously, the Plaintiff’s expert, who put on a new roof, also did not provide any slope to the roof. We made no mention of this until deposition. When asked at deposition what the insured did that was a violation of “code,” the contractor reiterated that the insured provided no slope to the roof and the code requires it. When asked why he did not put the slope into the roof, he seemed shocked that we noticed and then proceeded to explain, accurately I might add, that the code does not require the slope be changed for the roof because the building was 70 years old, and it was just a reroofing job. The case settled shortly thereafter. Sometimes it pays to listen.
In Part 3 of this article, we will discuss the engineering report and what to expect.
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. Dave 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. Dave is managing FORCON’s Annapolis, Maryland office. He can be contacted at (804) 363 5908 and David’s CV can be found here.