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Excerpted from Verdicts & Settlements
Verdicts & Settlements, December 12, 1997

"ON THE WATCH"

By Michael Solender


More general contractors are cutting more corners than ever, if one can believe the many lawsuits filed in construction-defect types of matters. Even if this isn't true, contractors are often perceived as corner cutters, which partly engenders litigation.

Construction defect litigation not only involves the standard low cost housing (where inexpensive materials and labor are traditionally used), but also the most expensive housing.

What happens in the low-cost housing market is often to be expected, given the speed with which these projects are built in order to conserve the costs on the construction loan. When this is coupled with the fact that in low-cost housing, by necessity, low-cost materials and labor are traditionally used and the low bidders get the job, the stage is set for possible construction defects.

These defects can cover every single element of a structure or just one, often depending on who is defining a construction defect. To many construction experts, a construction defect is a manufacturing anomaly that violated the Uniform Building Code at the time of construction, or a particular construction element that was installed, contrary to the manufacturers' published installation instructions.

There is one other main construction defect that occurs often when all else is apparently built correctly - the intrusion of water within the building envelope. A building often leaks into its envelope with none the wiser. That's because the leak is so tiny the manifestation of it fails to break the interior plaster surface, but rather evaporates or is absorbed by the insulation. This small interior leak often provides a distinct musty smell that won't be relieved until the interior elements on which the penetrating water is landing are removed. But the leak's effects can be seen, which often causes litigation.

Upon receipt of the complaint, the builder will send someone to attempt to repair the leak. Even the smallest leak generally has its foundation well below the surface. And in trying for an inexpensive remedy, the fixer tries to repair the leak from the surface, thus failing to properly repair the leak and, too often, further exacerbating it.

This is the condition that finally brings the attorney into the case. During the initial investigation through intrusive testing, it is found that the builder and or his subcontractors covered up, by accident or design, other defects. Thus, the litigation stage is set.

Building owners will sometimes hire the design architect to provide architectural oversight during construction, mistakenly thinking that they are buying supervision by the architect. The architect will show up on the job a few times a week for approximately an hour each time. However, his purpose is to ensure that the important elements of his design are carried out, not job supervision. Unfortunately, the owner mistakenly conjectures that with the builder providing a job-site superintendent and with the architect providing oversight, his own interest in the construction process is protected.

In reality, the general contractor is responsible for constructing a defect-free building and the owners are responsible for paying for the building. Many attorneys have discovered that what their clients paid for is not what they actually received. Sadly, the found defects often cost many times more to remedy than the original construction element, if it had been installed correctly.

If the general contractor and the architect are not properly watching the construction, who is? Nobody is the often answer. The scenario is that the general contractor commonly relies on the competence and honesty of the sub-contractors. Such responsibility involves trust. When consideration is given to the fact that shortcuts and, indeed, construction defects will soon be covered by other tradesmen, this places enormous faith on a subcontractor. And that subcontractor can take bankruptcy protection the day after being paid for the work.

This points to the need for a better system of checks and balances to ensure that an additional layer of protection is in place. The attorneys realize that trust can only go so far and must be tempered with reality if their clients, the builders, aren't to be held responsible for construction defects that generally start with the subcontractors.

Subcontractors obtain their licenses by taking a rather simple test administered by the state. And, reportedly the licensing authority is so underfunded that it has insufficient staff to properly administer the policing of these licensees. When the ease with which the license can be obtained is coupled with the minimum amount of technical knowledge required to perform often technically complex tasks, the stage is set for construction defects and the resultant litigation.

It is therefore imperative that where the subcontractor's contract with the general contractor doesn't call for all of the subcontractor's staff to have a high degree of skill and comprehensive knowledge of the job conditions, the general contractor must then understand the particular trade involved and also watch that subcontractor's work.

Simply because it is an impossible task for a general contractor to supervise every element of a construction job, logic must decree that the watcher needs to be watched as does the construction job itself.


MORE ARTICLES:

- THE CONSTRUCTION-EXPERT INDUSTRY: NEW DEVELOPMENTS

- CONSTRUCTION EXPERT CAN BUILD, OR DESTROY, A CASE

- EXPERTS CAN RESOLVE THE CONSTRUCTION CONUNDRUM
   Standard Construction Seldom Is Really Standard

- IN CONSTRUCTION CASES, BEWARE THE HIRED GUN

- THE COMPOUND CONSEQUENCE OF ONE SMALL
   DISCERNABLE LEAK INTO THE BUILDING ENVELOPE

- THE PANDORA'S BOX OF WATER INTRUSION LITIGATION

- CONSTRUCTION DEFECTS:
  How To Avoid the 'Big Hit' And Costly Litigation

- BUILDING A REMEDY

- WATER TORTURE

- THE WATCHER
   A third party may be helpful in monitoring the expert when figuring
   the cost of repairs

- KNOW-HOW
   A general contractor should have knowledge in related
construction areas to be effective as an expert witness

- EXPERT EASE
  OPINION: Construction defect experts provide lists of failures in
  preparation for litigation, and counsel must verify reports for accuracy

- MAKE READY
  Properly prepared expert witnesses will save both time and money.

- ON THE WATCH

- THE NUMBERS


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