Legal Claims and Disputes in Construction
Mark Meshulam is an expert witness and consultant for windows, glass and building exteriors.
Chicago Window Expert has actively participated in the construction landscape in Chicago since 1978. This lengthy – and still continuing – career has been filled with a vast array of projects, and a lot of constructive, rewarding work has been performed.
There is a part of the business we construction professionals don’t really like to talk about: when something goes wrong. It might or might not be our fault. It may or may not have been avoidable. But one thing is certain: our work environment changes radically when a dispute arises.
Construction is fraught with disagreement even under the best of circumstances. There will always be customers who demand better performance. There will always be subs seeking compensation for extra work from a limited source of funds. There will always be GCs who seek to extract every penny of perceived wrongs from offending subs.
Sometimes when I observe the daily maneuverings and business practices that take place here in our great city, I am reminded of a National Geographic special in which the big eat the less big in the great cafeteria known as the food chain.
Disputes can originate at any point along the construction food chain. They can occur between Owner and GC, between Owner and Architect, between GC and subs, between subs and sub-subs. Despite the origin, disputes have a way of traveling throughout the chain and affecting even the most distant participant.
Similarly, the issues that occur at the origin of the dispute can spawn secondary issues that radiate throughout the system and can become primary.
Consider a simple hypothetical, yet common, example.
Mid project, the Owner directs the Architect to design a significant design change due to changing market conditions. He directs the GC to implement the change. Due to the implementation speed required, GC directs subs to make their corresponding changes and assess the cost later, which may be allowed by their subcontract agreement.
The initial effect
The subs scramble to implement the change on a timely basis but inevitably delays occur. The owner or GC refuses to recognize the validity of the delay, bringing penalty pressures to the sub.
The secondary effect
Meanwhile the sub gathers and presents his costs to the GC, who in turn presents these to the Owner. Delay and negotiations occur in fits and starts.
The back story
The Owner is under budgetary constraints with the lender and possibly also with investors, and this results in resistance to grant change orders.
The tertiary effect
The delay can affect the end-users, causing some to back out of purchase and leasing agreements, further tightening the Owner’s cash availability.
The radiating effect
The effect of an Owner exceeding budget can be the delay of all payments to GC and subs. If settlement regarding the delay and the cost can not be reached, a true dispute will occur.
I selected this example to illustrate how issues travel up and down the construction food chain, affecting ultimately all participants. Issues and disputes can originate from any party in the chain. With the passage of time, the issues can morph. In this example a scope change changed to a delay and cost issue, which then devolved into larger issue of project financial performance and compensation for all participants.
Now we come to the point in the story where a true dispute has arrived. A dispute occurs when two or more parties can not come to an agreement. At this point, most disputes can be reduced to the fundamental element of money.
Even if disputed items appear to be categorized as delay, performance, quality or warrantee, these things can soon be reduced to most common denominator, the almighty dollar. Inevitably in disputes, when all the verbiage, justifications, counterarguments, posturing and power plays are boiled away, you have two or more parties who want money from each other, and their positions are far apart.
Breaking the impasse
Ultimately there will be pressure to settle. This pressure might come from an Owner looking to close out the job, provide lien waivers to the lender and provide warranties to end users. The pressure might come from participants who become tired of the impasse, and elect to settle for less than they feel entitled to.
Entering the legal realm
But sometimes the chasm between combatants is insurmountable, and larger guns must be brought to bear. Lien notices might be filed, and in some cases this motivates a settlement. If not, lien foreclosure (a law suit) or other types of lawsuits, such as breach of contract, can result.
Once the complaint (the lawsuit) is filed and served, a new round of activities begin to take place. The parties begin to fully realize the cost and delay they are facing if they pursue the legal course.
The filing of motions and answers, the petitioning of the court for summary judgements, the appearance at status hearings, and mostly the expensive investment in discovery (the taking of depositions and the requesting/providing of documents and evidence) all loom on the horizon as large mountains to scale.
Good attorneys will appraise their clients of this new problem – that it will take a lot of time and money to achieve closure – and will assist clients in rethinking their approach. At this point, mediation and arbitration may be considered for their ability to speed resolution.
The Expert Witness
Whatever the path, an outside expert can be useful. This expert can render an opinion regarding the validity of a position, based not so much on law (that’s the attorney’s job), but on how the case will “play” based upon standard practices in the industry.
Expert witnesses with forensic abilities can delve deeply into the actual construction for clues, facts and solutions.
In the window industry, we see expert witnesses coming from either the design world, such as Architects and Engineers, or from the trades themselves. Your Chicago Window Expert fits the latter category, and has provided these services in numerous disputes.
When I am involved in a dispute as an expert witness, I find the assignment challenging and stimulating. The issues can be multi-dimensional, requiring analytical thinking that starts at the issue at hand, then expands to encompass the greater picture, the causes, the participants and the environment in which the dispute was cultured.
Even the study of a seemingly simple window leakage issue readily emanates to encompassing the study of the manufacturing process, the installation sequence, the materials used, the qualifications of the installers and applicators, the instructional materials provided, the warrantee wording, the surrounding conditions and the history of the dispute.
The contract between the parties becomes an object of study, along with architectural drawings, specifications, bid proposals and shop drawings. Site visits, field testing and forensic disassembly may all become activities in the resolution of a matter. The expert witness can be invaluable in supporting the efforts of the attorney, where the facts of the case are embedded in the technologies of the construction trades.
In the end, an expert witness opinion is rendered and, if necessary, defended in deposition and even in court. A credible expert witness can be one of the greatest allies a claimant can have.
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