Trent Cotney, PA, Cotney Construction Law
This article will discuss the importance of maintaining and retaining documents on construction projects. Twenty years ago, a contractor could complete a construction project with a handshake and an invoice. Getting payment from customers has always been an issue, but the need for contracts and written documents was not as important as it is today.
Owners have become litigation and insurance savvy and know how to take advantage of an unprepared contractor. If a problematic project results in litigation, 9 times out of 10 the party with the best “paper” will win the day. In other words, the party that has the most detailed and descriptive paper trail supporting its side will more than likely succeed in court.
A contractor or supplier’s first line of defense to claims on a construction project is always the contract. The contract contains pertinent provisions that a roofing contractor may use to pursue and defend potential claims. Although it is often difficult to negotiate the terms of a contract, to the extent possible, a contractor, subcontractor, or supplier should be aware of provisions that would help shield it from potential liability from claims. These provisions may include limitations on the types of damages that can be awarded,
such as a provision that waives the ability to obtain consequential damages (pain and suffering, lost profits, loss of business reputation, etc.). In addition, contract provisions that require owners to provide written notice to contractors within a certain time period (24 hours) after the discovery of water intrusion or defective workmanship, may create a defense to an owner’s claims if the
owner failed to provide sufficient notice.
Anyone involved in the construction industry should also keep accurate written records of all communications involving defective workmanship, leaks or mold on a project. These written communications can include daily reports, e-mail, memoranda, phone messages, and letters. Furthermore, if you notice defective work, water leaks or mold make sure to take extensive photographs and/
or video of the alleged problems. Visual depictions of leaks and mold are especially useful in defending claims where contractors are hired to repair systems that are already suffering from defective conditions.
Once the contractor has generated documents such as the contract, daily reports and follow-up correspondence, it is important that the contractor retain those documents in an organized file, especially if there is the possibility that the project could result in litigation. By generating and retaining documents which support the contractor’s position, a contractor will be better able to defend itself against litigious owners.
Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation. Regulations and laws may vary depending on your location. Consult with a licensed attorney in your area if you wish to obtain legal advice and/or counsel for a particular legal issue. Trent Cotney is an advocate for the roofing industry, General Counsel of FRSA, NWIR, WCRCA and PBCRSMA, and a Florida Bar Board Certified Construction Lawyer. For more information, contact the author at 813-579-3278 or visit www.trentcotney.com.
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