Restoration Frustration

Originally posted 2009-03-27 09:00:00.

For this week’s Guest Post Friday, Musings is privileged to have a good friend Rick Provost weigh in. Rick has over 20 years of experience helping to build the country’s largest design/build franchise network specializing in exterior home improvement. Formerly the President and CEO of Archadeck®, Rick now provides his franchising expertise through The Consultancy, a consulting firm specializing in business systems development for contractors. Rick also is a facilitator, coach, and consultant for Business Networks, a peer-review network for remodelers and insurance restoration contractors, and a columnist for Remodeling Magazine Online.

While at a recent conference of the Restoration Industry Association (RIA), I heard several contractors complain about remodelers and home builders attempting to get into the insurance restoration business. With head-shaking disdain, they remarked that the restoration business isn’t as simple as builders think. And they’re right.

But that’s not what some would have us believe. Shortly after the conference, I found a Website advertising a book that would teach contractors the Six Easy Steps to becoming an insurance restoration contractor, including how to achieve a remarkably precise 87.62% bid success rate, with HUGE PROFITS. BIG, FAT, WONDERFUL 20% to 40% PROFITS!

A few of these “easy steps” remind me of the first half of comedian Steve Martin’s joke about how to become a millionaire and never pay taxes: “First…get a million dollars.”

Easy Step 1 is to “Establish a relationship with the proper insurance company ‘insider’, known as an adjuster.” Go ahead and establish that relationship. However it helps to have knowledge of the special procedures unique to restoration work. Easy Steps 2 through 6 are to analyze the damage, perform the repair cost analysis, obtain an agreed scope and price from the insurance adjuster, set up the contractual relationship, and then proceed with the repairs. Bingo!

Let’s isolate just one of those “easy” steps. An insurance estimate is scoped and priced differently than a remodeling job, usually using the Xactimate software program, which requires special training. If you’re a participant in an insurer’s program, they will pay your cost based on Xactimate’s pre-set values plus 10% markup — not margin — for your overhead, plus 10% for profit. (Pause for laughter.) Money is made in this business, to be sure. But could you make money in your business if you used that formula, literally?

Now, perhaps I’m being cynical. Maybe it is easy to dive into 24-hour emergency response and restoration of water, smoke, and fire damage. Maybe you have the equipment to perform content inventory and pack-out, fire damage demolition, smoke mitigation, mold remediation, gray and black water mitigation, and even (shudder) trauma scene cleanup. But I’ve made my point. Restoration work is a completely different animal than remodeling.

Different, that is, until you get to the “put-back” or rebuilding step. This is where the remodeling industry intersects with the restoration industry. Put-back means what it implies–replacing the structure and finishes to their original state: framing, insulation, drywall, trim, flooring, painting, and so on. Margins are typically lower than for mitigation work because put-back requires management and technical skills that cost more in the marketplace. This would obviously dilute a restoration contractor’s blended margin if he carried the fixed costs necessary to perform that kind of work. Therefore, many choose not to pursue it. But it’s also the type of work that matches a remodeler’s skills and resources.

Given the state of the remodeling industry right now and for the foreseeable future, this may present an opportunity for you to subcontract for a local restoration firm that does not currently perform the put-back portion of insurance claims work. The difficulty will be in convincing them that their company’s good name will not be tarnished by your failure to perform acceptably. That’s a hot-button issue, as their business relies on maintaining a satisfactory reputation among the insurance adjusters who feed them work. One bad job could undo years of goodwill.

So if you can demonstrate why there would be no risk in subbing to your company; or if you’re willing to become an employee, there might be an opportunity for steady work through this protracted slowdown. After all, fires and burst pipes don’t care about the economy.

(P.S. The second half of Martin’s joke is “Then say… ‘I forgot!’”)

Mechanic’s Liens- Big Exception

Originally posted 2012-11-12 09:00:03.

The state seal of Virginia.Image via Wikipedia

Musings has discussed mechanic’s liens on numerous occasions.

As we discussed in earlier posts, the general rule is that a mechanic’s lien jumps to the head of the line of liens when filed. This is true in most instances. In the typical case, a contractor puts up a building and, when the owner refuses payment, it files a mechanic’s lien that takes priority over all other liens on that property, including the construction loan deed of trust (or mortgage, depending on your state’s property laws).

However, in Virginia, an exception exists. The Virginia Code provides that in a case where there is a loan on the land with a deed of trust, and then a construction loan with its own security in the land, the first lien holder can enforce its lien up to the value of the original and unimproved land on which it placed its lien. The mechanic’s lien holder takes priority on any value added to the property based on any improvements (i. e. the building itself) over any other liens.

When the construction loan is secured by the same deed of trust as the purchase loan, the mechanic’s lien takes precedence. Of course, these are the general rules. Your particular situation must be examined carefully by an attorney or other professional experienced in mechanic’s liens to determine the priority of your lien.

As always, please comment below and/or subscribe to receive updates on this and other topics here at Musings.

Have the Feds Taken Over Arbitration?

Originally posted 2016-12-12 09:00:31.

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All of us in construction have run into mandatory arbitration clauses in our contracts. These clauses are more or less desirable based upon the size of project and other factors that will provide a topic for another post here at Musings or in my class at Solo Practice University (and likely both).

In drafting and considering the usefulness of these clauses, make sure that you keep in mind that the Federal Arbitration Act applies to actions in federal court. In short, the FAA gives parties to a contract containing an arbitration clause the absolute right to a stay of a law suit pending arbitration.

While this seems obvious, a recent U. S. Supreme Court decision expanded the universe of people that can demand such a stay. In Arthur Andersen LLP v. Carlisle, et. al., the Court stated that any person who is allowed to enforce a contract under state law can obtain such a stay. In short, if a person can make an argument that they have some sort of right to enforce a contract’s terms, that person can get a stay, at least until a court says otherwise.

For contractors and other construction pros, this case only underscores the need to examine your contracts carefully. If third parties, including architects, LEED AP’s on the project and others that could get a benefit from what looks like a straight line agreement, are part of the process, you could end up arbitrating a case that you never anticipated you would be arbitrating.

Consider this latest decision by the U. S. Supreme Court a reminder that you should think carefully about every aspect of a contract before you enter into it. If necessary, have experienced legal counsel review that contract and discuss its implications prior to diving in.

As always, please join the conversation with your comments or subscribe to keep up with the latest Construction Law Musings.

Construction Economy and Bids- A Liability Nightmare?

Originally posted 2010-09-03 09:00:28.

Just recently ENR Magazine (one that I read regularly and highly recommend), published an article stating that contractors and subcontractors are bidding at or near cost in a race to get work.

This aggressive bidding environment requires contractors and subcontractors to find work in a field with a present glut of supply to go with a smaller demand and lower materials costs causing states to push projects.

In short, the temptation (and possibly the need) to cut overhead and strip costs to be a low bidder is great.  The thought of bidding at or near cost may cross your mind.  However, as a construction professional, you need to be very careful when these thoughts arise.  The present environment will lead to more risk and a higher likelihood for claims.

As a business proposition, we all know that the lower the margin, the lower the margin for error and delay.  With this lower margin for error, you need to make sure that the construction contract that you sign has a lower risk to you.

If you are a contractor or subcontractor, you won’t be able to count on change orders to make up for any issues that you may have with the original bid.  If you are an Owner, be ready for change order requests.  For these reasons the contract that you sign at the beginning of a construction project and your business sense is more important now than ever.

In short, a good set of attorney-reviewed documents and an eye for being selective in what projects you take are necessary to deal with the potential issues of a tight economy where money is king and disputes are more likely to arise.

Please share your thoughts with a comment below.  I also encourage you to subscribe to keep up with the latest Construction Law Musings.

Construction News Roundup

Originally posted 2011-03-28 09:01:00.

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Much happened in the last week or so in Virginia construction, both legally and otherwise. I thought a quick roundup was in order.

On the green front we has a great article in ENR relating to the liability risk of green building and the great interest in the AGCVA Green Building Breakfast.

Also, the Virginia courts decided several interesting cases:

The first is Travelers Property Cas. Co. of America a/s/o Covenant Woods v. Premier Project Mgmt. Group LLC v. Haskell Co. a case that reminds everyone that waivers of third party rights under the contract will be enforced in Virginia.

In Suburban Grading & Utilities, Inc. v. Transportation Dist. Commissioner, the Court sends a reminder that your bids must meet the bid requirement (in this case percentage of Disadvantaged Business Enterprise participation) or your bid can be thrown out.

And, in one of my favorite areas of law, mechanic’s liens, the Court in Peed Plumbing Inc. v. Freedland clarified the mechanic’s lien rules on who has to be served with and enforcement action and when.

Musings highly recommends these links and cases for some quick information on how courts and others will look at certain contractor claims and defenses.

As always, please join the conversation with a comment below and/or subscribe to keep up with the latest Musings and Guest Post Fridays.

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