Thoughts on construction law from Christopher G. Hill, Virginia construction lawyer, LEED AP, mediator, and member of the Virginia Legal Elite in Construction Law
As anyone that reads this construction law blog on any sort of regular basis knows, I am a big advocate for mediation in most cases (construction or otherwise). I took this truly to heard about four years ago when I decided to go through the training and mentorship to become a certified mediator here in Virginia. This training led to many opportunities to act as a mediator in the General District Courts here in Virginia and has recently given me the great privilege of helping parties that were not court referred resolve their disputes. Continue reading Mediating is Eye Opening
In Carolina Conduit Systems Inc. v. MasTec N.A. Inc. the Court considered an all too familiar situation. In Carolina Conduit, the general contractor told the sub contractor “not to worry” about payment for excess flowable fill provided by the subcontractor. Based upon this representation, Carolina Conduit performed the additional work and then attempted to get MasTec to pay for that work. As you may predict, a dispute arose regarding this issue and Carolina Conduit sued for (among other expenses) the additional expense it incurred based upon the unforeseen need to provide excess flowable fill.
For this week’s Guest Post Friday, Musings welcomes back Timothy R. Hughes, Esq., LEED AP. Tim (@timrhughes on Twitter) is Of Counsel to the Arlington, Virginia firm of Bean, Kinney & Korman, P.C. In his practice as a business, corporate, and construction law attorney, Tim has served as the Chair of the Construction Law and Public Contracts Section of the Virginia State Bar. He has served in numerous volunteer, board and leadership roles with many organizations and has been recognized by Virginia Lawyer’s Weekly as a 2010 “Leader in the Law”. A regular speaker and writer, Tim is the lead editor of his firm blog, Virginia Real Estate, Land Use and Construction Law.
The last Musings post resonated with me on a very important point: you do not want to contact your lawyer too late in the game. Many people do not like talking to lawyers … we have a reputation (well earned by some) of being difficult, confrontational, obtuse and expensive. Many clients only call their lawyer when they are actually sued and absolutely must retain counsel. This is a very bad approach: your case is most often won or lost based on documents, facts and positions taking during the project. It is far more cost effective to involve counsel earlier in the game.
Even better, lawyers can provide the most cost efficient advice by helping you structure your business correctly, obtain proper licensing, and draft solid contracts. Especially in Virginia, your contract terms are critical to defining what happens in court. Drafting a solid contract form and using that contract is a great risk management tool and not an expensive investment. Incorporating and minimizing or eliminating personal liability is really inexpensive and a huge potential benefit.
Contrast that with calling too late. I have received many calls on cases where new clients did not incorporate. Clients have used weak contracts or even no contracts. Clients have moved forward on game changing critical elements of projects with no documentation. Clients have failed to reply or rebut highly inflammatory project correspondence that mischaracterizes events. Trying to use verbal testimony years later to rebut a letter during a project is a very tough sell to a jury. Engaging counsel too late means you are taking on tremendous risks and actually driving up your ultimate exposure and legal fees.
The real question of reluctance to call your lawyer may stem from a lack of trust and confidence. Clients should feel their lawyer has their best interests in mind, is concerned with the relation of costs and benefits, and adds value. Ultimately, this question may hinge on selecting the correct lawyer.
One of the more rewarding aspects of practicing law has been developing clients who came across my doorstep with significant corporate, contract and liability issues and helping them evolve into proactive risk managers. Involving a lawyer as a trusted business advisor from the start of the business or as early as possible is ultimately the most cost-efficient way to hire counsel. It is a lot cheaper to have a good contract than a bad lawsuit. This is not to say that a good contract ensures no suits or victory, but it does help set the playing field. It does establish significant advantage and leverage to resolve issues before they erupt.
Tim and I welcome your comments below. Also, please subscribe to keep up with this and other Guest Post Friday Musings.
Recently, I’ve gotten numerous questions/comments from friends, clients and potential clients regarding how and why I continue to blog here at Construction Law Musings. My first answer is always that its fun. I know, it seems like a bit more work on top of a busy solo construction law practice. However, it is exactly because of my busy practice that publishing this construction law blog has been a great thing.
In December of last year, this corner of the Web turned 3 (something that still amazes me). When I began writing for this blog, I had no idea how much work, learning and fun would come out of it. Sure, there is some marketing value to a blog and the use of other Web 2.0 and social media tools for client development and networking with other lawyers and construction pros. However, if publishing this blog and posting on a regular basis weren’t fun and interesting (and I thank all of you who read and post here at Musings for making this experience all the richer), this blog would never have made it past the first year.
For this week’s Guest Post Friday here at Construction Law Musings, we welcome Andrea Goldman for the second time. Andrea (@andreagoldman) is the principal in the Law Office of Andrea Goldman, 305 Walnut Street, Newton, Massachusetts 02460. She is a litigator, mediator and arbitrator. Andrea focuses on construction, contractor/homeowner and business law. She is fluent in Spanish and French and has served international clients in their native language. For more information about Andrea Goldman visit www.andreagoldmanlaw.com, or call (617) 467-3072.
Apply for certification with the EPA now. If you are not certified as of April 22, 2010, you cannot do work that disturbs lead paint in target housing.
Contractors cannot contract away liability from enforcement by the EPA. You cannot shield yourself from liability. Painting contractor Spring TX, other contractors and subcontractors are responsible for following the Lead-Based Paint Renovation, Repair and Painting containment procedures.
The Lead-Based Paint Renovation, Repair and Painting Program Law is a federal law. That means that claims brought under that law can be brought in federal court. Keep in mind that your state may opt-out and pass laws that are more stringent.
Even if you have an arbitration clause in your contract, it will not apply to a lead paint claim because the plaintiff would be the child or a pregnant woman who is not necessarily a party to the contract. Therefore contractors could be subject two legal proceedings at the same time.
Homeowner Contracts:
Provide homeowners with a checklist that verifies that they have received the Renovate Right: Important Lead Hazard Information for Families, Child Care Providers and Schools pamphlet, they have seen the contractor’s firm and renovator certification, and they understand that the certified renovator will be on site when signs are posted, when the work-area containment is being established and when the post-renovation cleaning verification (dust wipe test) is performed. The certified renovator will be reachable by cell phone at other times. Consider whether to give your cell phone number to the homeowner.
Let homeowners know that any requests for testing, abatement, or third-party cleaning verification will result in a written change order that that is signed by the parties that will reflect an increase in the contract price and a change in the date of completion.
Inform homeowners that any conditions that affect containment procedures (high winds, prior lead dust and paint chips at the site) will result in a written change order that is signed by the parties that will reflect an increase in the contract price and a change in the date of completion.
Even if homeowners say that no children under 6 or pregnant women are present in the home, or the home was built after 1978, the contractor should exercise due diligence and check records at the Registry of Deeds or the town tax assessor’s office to verify the date of construction. They should also make a reasonable inquiry regarding visitors, ages of children living outside the home who visit frequently and may be pregnant, etc.
Remove “broom clean condition” clauses from your contract.
Contracts with subcontractors:
Make sure you have written contracts with subcontractors.
Include an indemnification clause where the subcontractor is liable for his portion of the work that requires lead containment procedures. If the general contractor is sued, he wants to require that the subcontractor has to reimburse him for his attorney’s fees and costs in defending himself against a suit that is based on the work performed by the subcontractor. The subcontractor would agree to be liable for any judgment that is a result of the work that he performed.
The contract must clearly spell out the subcontractor’s scope of the work so everyone understands the apportionment of responsibility.
Never hire subcontractors who are not certified firms and renovators with the EPA.
Make final payment to subcontractors contingent upon completion of all documentation (including photographs and records of on the job training) required by the EPA
Andrea and I encourage your comments below. Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.
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