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Practices and Pitfalls in the Construction Industry that Lead to Lawsuits

Introduction

This paper discusses research that attempted to analyze construction practices and pitfalls that lead to lawsuits. It was based on the perception that the flood of adversarial proceedings inundating the construction industry could be traced to some fundamental flaws in the way we go about our business. The research team conducted extensive

review of legal reference books, construction law manuals and periodicals, court records, newspaper file banks, and indexes of relevant periodicals and journals. The results in terms of factual data capable of influencing our opinion or defining a direction were frustratingly disappointing, with the exception of a small number of court recorded cases. However, the results in terms of inferential data, i.e. textual allusion or suggestion as to causal activity or lack of activity were remarkably consistent in highlighting proper proce­dure as a primary issue to be examined more closely.

The research team conducted extensive interviews with leading Construction Attorneys, General Contractors, Sub­-Contractors, and supporting professionals in the construc­tion industry. The dominant theme that surfaced in all of these interviews gave strong credibility to the inferential evidence and minimal court recorded evidence reviewed. This dominant theme can be best expressed as weak or poorly conducted management of our projects and busi­nesses. Although there are many external manifestations of this commonplace practice, it is unfortunately these exter­nal manifestations that are most easily identifiable in a legal sense, and ultimately highlighted as the characteristic defects within the industry. The real defects go much deeper. Unless we can uncover and correct them, we will always be dealing with symptoms rather than the sick­ness.

In order to substantiate the perception developed by the research team of the causal factors behind lawsuits in the industry, it was important to have some hard statistical data. The team generated a survey questionnaire which at­tempted to elicit both fact and opinion from a sample group of industry practitioners. A total of 413 blind identity questionnaires were sent out to South Florida. In the sixty-day post distribution period, we received approximately 50% responses. This level of response not only provided an adequate population sample to work from, but also indi­cated that clearly there was a high level of interest in our subject matter.

The individual questions generated a distribution of answers that substantially reinforced our theories about causal factors. The questionnaire respondees in many cases gave more information than was asked for. This further emphasized the high level of interest at the same time it alerted us to shortcomings in the composition of the questionnaire. In combination with the court data and the interviewee notes, the survey questions enabled us to effectively identify the central theme of the causal factors. Using actual and hypothetical examples, we then structured a course which could stand alone or be expanded with selected modules or instructional packages to satisfy the indicated shortfalls in procedural knowledge. The course identified and discussed construction pitfalls which lead to lawsuits and paired these pitfalls with preventive practices. This material was supplemented by checklists and handouts, and was presented to several groups of contractors and subcontractors around South Florida.

Discussion

Research Goal. This research project was sponsored by the State of Florida Department of Education under the auspices of its Building Construction Industry Advisory Committee. The intention was to build a body of course material about the problems which construction contractors and subcontractors encounter which result in lawsuits. 'Me material was meant to be suitable for presentation to industry practitioners in a classroom setting. Research began in 1990 through the Department of Construction Management at Florida International University.

Research Methodology

When the research project was originally proposed, the controlling assumption was that so called "low profile" issues such as delays, quality control problems, and inter­-contractor relationships were responsible for greater mon­etary losses to the construction industry than losses which result from "high profile" issues like accidents and col­lapses. While accident and collapse are spectacular and often in the public eye, aspects of job performance and job management which lead to conflict and litigation are undermining the industry in a more subtle fashion. The suspicion was that these relatively unattractive problems would be not only hard to uncover, but once uncovered, harder still to analyze. An associated question emerged as we analyzed data, i.e. when does "lack of knowledge" become a construction industry problem as opposed to a societal or governmental one? Nevertheless, the impetus behind this study was the belief that the low profile issues merit emphasis and understanding.

Our approach included a multifaceted survey of the industry to develop a core of illustrative case histories. We contacted contractors, bonding companies, construction attorneys and various support construction agencies; we conducted a literature search for relevant materials; and, we analyzed. Almost immediately, however, we were struck by the magnitude of the inquiry undertaken. Everyone keeps data related to these problems, but no one we could identify has analyzed any of this data in such a way as to make it directly relevant to our purpose.

In recent years, the literature on construction law has grown at a tremendous rate. Much of the literature in the field of construction law has been written by lawyers for lawyers' consumption. It is presented in a manner more intended to instruct and advise the legal profession than to appeal to the contractor who is trying to figure out where he has gone wrong. Despite this fact, as the project developed we expanded our sources and we began to find a number of references directed toward construction professionals as an audience. Undoubtedly, these references, all relatively new on the market, reflect an increasing awareness that contractors want more access to this material.

Research of court documents had mixed results. Civil and county court records reveal some systematic problem areas, for example, pervasive disputes involving oral contracts, but these records proved difficult to evaluate. The issues framed in legal pleadings may have little to do with the underlying cause of dispute between the parties, and more to do with the skill of the attorneys who draft them. Moreover, for the most part, decisions of these lower courts are not reported. Appellate court decisions, while valuable, pose their own problems of evaluation. There is no direct correlation between which issues reach the appellate court and which issues never get there. There may be 100 cases involving delay problems which resolve themselves at the trial court level, and one case about a contract payment clause which finds its way to the Florida Supreme Court. Many disputes end up in arbitration, mediation or some other form of alternative dispute resolution; unfortunately these files are closed and cannot be reviewed.

Interviews proved to be an extremely fruitful medium of information development. Through a few initial contacts we were able to reach a responsive and mostly supportive cross section of knowledgeable sources across the state. These sources included construction attorneys, industry practitioners, bondsmen, insurance and claims persons, risk analysts, and construction associations. The interactive and continuing support of these sources has been invaluable to the success of this study. Although bonding and insurance companies may be more aware of the causative factors than they realize, when we presented questions directed to cause, the interviewees were noticeably slowed in responding.

Cause however, is highly relevant to bondsmen and insurance brokers because they are in the business of investing based on evaluation of people and their performance characteristics. Ultimately we received excellent input from these sources. Not a single interviewee, presented a positive picture of the present or an optimistic assessment of the future. For the most part, the reaction of those we spoke to was "it's about time someone is looking into this." (personal interview)

After many interviews, a definite pattern began to emerge. In broad terms these disparate sources said that contractors get into litigation because they are not taking care of business. Management skills are either lacking or not being used as they should. Yet, at the same time, success in the construction industry is becoming more and more dependant on such skills. The construction business is increasingly more difficult, margins are smaller, competition is getting stiffer and more sophisticated, and the economy is taking its toll. Successful firms getting the upper hand are usually strong in the area of management. Lack of these skills is exposing weaker companies to litigation. These companies do not know how to stay out of trouble and, when they get into trouble, they do not know how to get out. Sophisticated owners and contractors on the other hand are more able to take advantage of any lapse on the part of their weaker counterparts. Subcontractors, who are in the weakest position of all, are often severely disadvantaged. For many, the American dream of starting your own business with a hammer and a pick-up truck is disappearing. Many subcontractors merely work for wages, while bearing an employer's risks of loss, without the hope of profit. Our casual empirical data indicated that lack of proper business skills was a major, if not the primary cause of lawsuits. With this in mind our research turned toward these broader management concerns.

In an effort to test this hypothesis, we devised a questionnaire which probed the thoughts of practitioners to see what their perceptions were about this issue. In the questionnaire, we first asked about the respondent's status (whether contractor, subcontractor, design professional or other) and about the respondent's volume of business. (refer to Status of Respondents)

We then asked if they had been in litigation, what was the underlying cause, and how they approach their contracts, and attorneys. Most revealing were the responses to the questions about the cause of construction litigation. Respondent's were given several choices, namely, A) Design Problem B) Code Problem C) Delay D) Quality of the Work E) Defective Workmanship F) Non-Payment G) Other. Their responses were tabulated and appear in the following graph (refer to Nature of Conflict in Litigation)

More specifically, practitioners have pointed toward the many problems which exist with construction contracts themselves. The unequal bargaining position which the weaker parties find themselves in at the inception of the contracting process, becomes, by the end of the contract negotiations, solidified in the contract document itself. The stronger players are becoming more adept at inserting risk-shifting clauses into the contracts which are harder to defeat in court. Contractors must, therefore, pay more attention to their contracts themselves, read them, understand them, and know when to engage professional help if they do not understand them.

Contracting itself is becoming more dependant on the business skills of an accountant. "[P]aperwork, the nemesis of many builders, is nevertheless a key ingredient in managing a successful building operation." (Builder, "Nine Nifty Management Reports," July, 1989, p.184.) Without good accounting support, the small contractor probably will not last long enough to get sued. We consider this a prerequisite to even thinking about independent contracting. Construction attorneys have named four key support personnel with which every contractor must have good relations: their attorney, their bonding/insurance company, their accountant, and their banker. When asked to rank them in order of importance the accountant was first, followed by their banker, bonding/insurance company and last their attorney.

When a dispute does arise you have reasonable people and unreasonable people. It behooves every contractor to find out before signing the contract who is unreasonable and who is not. We were often told that contractors, hungry for work, do not know whom they are dealing with and make no effort to find out. In some cases, we were told, even when they were warned about others having been burned on the same job before them, they went on to get burned themselves.

"Good faith, good faith, good faith," a historical basis for contracting, is increasingly not observed. When good faith does break down, and when the relationship goes sour, as many a relationship does, how and when do you terminate? This "choreography of termination," (personal interview) is something which needs to be taught.

Practices and Pitfalls

 Pitfall #1 - Nonpayment

Payment problems are by far the most common cause of action among the trial court cases studied. These facts are reinforced by attorneys who specialize in construction law. Non-payment is commonly thought of as a result of any number of variables e.g., poor quality workmanship, nonconforming work, delay etc., but this is not always so. Often non-payment is just that, non‑payment. A contractor goes out of business and just doesn't pay the bill, or moves, or is somehow unavailable and cannot be served, or denies any bill exists, or does not respond to the suit and defaults.

Preventive Practice - Investigate

How does one insulate against nonpayment? A common suggestion is to investigate the person you are working for. This may not be all that simple. The means available to a contractor or subcontractor are few and unreliable. Good credit reports, strong bank balances, word of mouth, etc. offer no insurance against the unscrupulous. Although useful, these are no guarantee that you will get paid, especially if the owner or client has a history of nonpayment. Nevertheless, contractors should endeavor to get information on an owner's or client's history and track record. This applies as well to anticipated subcontractors. Above all, know what the legal entity (person) is that you are going to contract with before consummating the agreement. (Leiby, L., Florida Construction Manual 2nd Ed. 1989, p. 2f.)

A large percentage of construction related actions for breach of contract are brought as a direct consequence of nonpayment. It should be realized that if a contractor terminates when not entitled to do so, the possibility exists that the termination itself becomes a material breach entitling the other party to terminate the contract and sue for damages. Contractors must know that the stakes in this area are extremely high.

Pitfall #2 - Oral Contract

Often in the cases researched, the problems involved disputes about the scope of the work to be done. Normally speaking the contract language and terms will be looked to first to decide these issues, however, in many cases no contract existed; still, in the construction industry, oral contracts are far from uncommon. The case of Rossmoor Corporation v. Tri‑County Concrete Products, Inc., 375 So.2d 896 (Fla. 4th DCA 1979), is typical of the type of situation in which an oral contract to supply construction materials existed between a materialman, a subcontractor, and a developer. When the subcontractor abandoned the job, the material supplier tried to collect from the developer. The developer denied that an oral contract existed. Such denial was the typical defense raised in the cases researched. It is interesting to note that in none of the issues raised in this case on appeal did the developer claim not to have received the materials. The court ultimately ruled in favor of the material supplier, but noted that "the case law on the issue of the quantum of evidence necessary to establish an oral contract is rather unclear." One case picked up by the local newspaper told about a contractor who accepted a $33,700 contract from an owner without either an advance payment, or a bond to cover the work, just a verbal agreement to pay. The payment got tied up in an international lawsuit stretching all the way to Germany. (McNair, J. "The subs just want to be paid," News and Sun Sentinel, July 6, 1986.)

Preventive Practice - Put it in Writing

Put your agreement in writing. Without a written document it is often quite difficult to know what exactly the parties intended; and, in the burden of proving, this intent must be clear from the surrounding facts and circumstances which even under the best of conditions maybe hard to prove. Oral contracts should never be more that a fall-back position. Bromer v. Florida Power & Light Co., 45 So.2d 658, 660 Ma. 1949).

Pitfall #3 - Not Reading or Understanding  the Contract

Short of actual litigation, nothing strikes fear into a contractor like signing a bad contract. When contractors were asked in the questionnaire whether they read and understood their contracts the response was an overwhelming yes. However, this conflicts with the casual empirical data which we gleaned from our interviews. Contract language can be mystifying and intimidating. Many subs feel manipulating contracts is one of the things which keep the generals always ahead of them, and among the forces which keep the subs in the weakest position in the construction hierarchy.

Subcontractors: "[t]hey sign contracts that lock them into slow death - and they don't even know they're doing it." (McNair op.cit.) Contracts need to be better understood before they are signed. Written contracts are frequently used as risk shifting devices; therefore, they should be examined carefully for legal implications before signing. (Stokes, M., Construction Law in Contractor's Language, 1989, p. 83.)

Preventive Practice -Read and Understand the Contract. If the contractor does get it in writing, the next step is to know what it all means. The construction industry has been described as being built on contracts. This is reflected in the very names - contractors and subcontractors. It is no surprise that contract problems are often at the root of construction litigation. "[J]ust one error in a contract or subcontract has been known to result in losses that can wipe out a construction firm." (Leiby,L., op. cit.) As the construction industry becomes more competitive and litigious, the ability to understand the basics of what a contract is has become, according to one subcontractor we spoke to, "part of every plumber's training." By putting money on defining the intent of the parties (the contract) up front, the resolution of future disputes will be much easier.

Preventive Practice - If You Don't Know - Find Out

Issues of preventing, mitigating, and managing liability of contractors are regularly being addressed by construction attorneys in seminars, treatises, and articles. Attorneys we interviewed indicated they would rather deal with problems before they escalate to court action. Many, in fact, are willing to give advice over the phone and answer questions for minimal cost. In short - if you don't know - find out.

Pitfall #4 - Qualifying Agents

License-holders sometimes are asked to qualify companies without knowing the risks and liabilities involved. This is a topic limited to a few states, e.g., California, Arizona, Nevada and Florida where the licensing laws address the qualifying agents. In Florida, all primary qualifying agents for a business organization are jointly and equally responsible for supervision of all operations of the business organization; for all field work at all sites; and for all financial matters, both for the organization in general and for each specific job. (Fla. Stat. 489.1195 Responsibilities.)

"To allow a contractor to be the 'qualifying agent' for a company without placing any requirement on the contractor to exercise any supervision over the company's work done under his license would permit a contractor to loan or rent his license to the company. This would completely circumvent the legislative intent that an individual, certified as competent, be professionally responsible for supervising construction work on jobs requiring a licensed contractor." Alles v. Dept. of Professional Regulation, 423 So.2d 624, 626 (Fla. 5th DCA 1982). The practice can invoke disciplinary action under section 489.533(l)(k), Florida Statutes. See Gatwood v. McGee, 475 So.2d 720 (Fla. 1st DCA 1985).

Preventive Practice - Make Sure Your Authority Matches Your Responsibility as Qualifier

Anyone who qualifies a job better be concerned about his or her liability. This may be difficult when the choice is between qualifying a job and putting bread on the table, but the consequences can be dire.

Pitfall #5 – Project Manager or Broker

Building the building. Here is where the contractor can exert an advantage in the struggle for profits by putting his expertise to work. Contractors however, seem all too willing to relinquish their advantages at this stage by not taking care of that which they know so much about. That is, getting the job done or project management. They frequently prefer to act as brokers of services rather than as active managers of the projects themselves.

Preventive Practice - Effective Communication

Once a good team has been put together it is necessary for the general to work with the team to achieve his goal. Lack of communication often leads to lack of coordination which often leads to delay. And delay is frequently named as a problem (and prime source of litigation) which may be avoided if contractors involve subs in the scheduling process.

Preventive Practice - Paperwork & Documentation

Paperwork not managed is a legal nemesis. Proper paperwork has become more essential to the building game. Contractors must take a preventive legal approach through scrupulous attention to records maintenance and documentation.

Preventive Practice - Manage Your Projects

Project management should rightly be the domain of the general contractor. The best generals avoid problems while administering their projects and know how to successfully handle problems when they occur. The contractor who brings together a good team has simply fulfilled the first duty that is expected of him. In some states, there is even a statutory duty to supervise construction. Good contracting, in other words, is not simply a matter of putting together the right team and the proper paperwork.

Pitfall #6 - Poor Relationship With Lenders

Lenders are in a prime position from which to control contractors or help prevent contractors from getting into trouble. Contractors sometimes fail to cultivate close relations with lenders until its too late in the process. Although lenders are often permitted to "monitor their construction loans however they see fit," Strickland-Collins Construction v. Barnett Bank, 545 So.2d 476 (Fla. 2d DCA -1989), they are often strategically positioned to help a contractor in trouble.

Preventive Practice ‑ Get to Know Your Lender. Ask For Advice.

Communicate. Get to know your lender. Often the lender can help prevent problems before they happen.

Pitfall #7 - The Squeeze Play

Contractors themselves feel that the knowledge and skill is there but that by being squeezed by owners to sign unfavorable contracts they are not given the latitude and time to apply their skills. When covering costs on a job by shortening the time is their only option, quality suffers in the exchange. When squeezed by a bad contract even skilled workers cannot perform as they should.

Preventive Practice - Negotiate a fair profit and know whom you are dealing with.

Owners, developers and other contractors who make it a practice to squeeze those below them generally have a track record of such behavior. Know whom you are dealing with. Ask around. Most of all, make sure you have programmed a profit. Don't count on making it up later.

Pitfall #8 - Construction Defects

Contractors knowingly and unknowingly place themselves in precarious legal situations when they either roll the dice and cut corners to improve profits, act carelessly, or because they don't possess the requisite knowledge or training needed to complete the job.

Preventive Practice - Workmanship & Training

The consensus of opinions from our work is that the work force is poorly trained and [generally] unprepared. Organizations like AGC, NAPHCC, and others have recognized the need for training and offer apprenticeship programs. Contractors worried about liability should invest in workers who value workmanship.

Pitfall #9 - Letting Conflicts Develop Into Disputes

When one party believes that time is on his side, that it is to his advantage to delay the outcome and increase the adversary's cost, he will find a means of doing so, regardless of the method of dispute resolution.

Preventive Practice - Know When and How to Settle Dilutes

Developing systems of alternate dispute resolution is currently felt to be a good move in the right direction. Standard contracts of the AIA include provisions for arbitration, and other forms of ADR exist e.g. mini‑trial, mediation‑arbitration, contract review board. The fact that alternatives to litigation exist is a good thing, but it behooves contractors to know what they are getting into when they agree to arbitrate. The attraction is, of course, the ability to save the parties the costs of litigation. However the decision on which method of ADR to choose will depend on the complexity of the case, whether there are numerous claims or conflicting decisions, and the whether parties are dealing in good faith.

Preventive Practice - Good Faith

Contractors should keep in mind "good faith" dealing as a key element in success. The best method of dispute resolution, however, is to prevent disputes from occurring, or prevent minor disputes from becoming major ones. What is the best method of dispute resolution? Authors Rubin and Banick likened the question to What is the best method of being put to death, e.g., the gas chamber, the electric chair, or the firing squad? " The answer in both cases is that you do not want to be in the position of having to ask the question in the first place. ("Rubin, R, & Banick, L., Alternative Dispute Resolution Forms, Reprint, p. A2‑42.)

Conclusion

There are two major problems which have plagued the construction industry for the past several years: 1) lawsuits, and 2) getting paid. They continue unabated as we enter the decade of the 90's. For the most part, they are inter-related in the sense that they either occur in tandem, or they occur one as a consequence of the other. Economic loss seems to be on the increase although it is difficult to differentiate from that related to the general economy. It does seem that the lower down the chain or tiers of players, the more severe is the problem.

The proliferation of litigation has nourished an adversarial environment that the construction industry struggles to operate within. Veiled opportunism and borderline hostil­ity characterize many of the operational strategies we see employed today. Doing a good job, or doing a job to the best of one's ability, are practices and philosophies that we see too little of any more. Part of the reason for this is our defensive or self-preservation instinct, and part is certainly attributable to the highly competitive market for the ser­vices that we provide. Perhaps a third part, larger than we would like to admit, is traceable to a general decline in the ethical standards of our society.

The opportunities for contractors to get into trouble are increasing constantly. More governmental agencies with more codes and regulations have to be dealt with each year. More adversarial and unscrupulous clients are on the street each year. We have fostered an attitude of win by lawsuit. Unfortunately, by the time this stage is reached, resolution of our disputes is out of our control, solutions are imposed from above.

The data generated by this project overwhelmingly indicate that a lack of procedural knowledge and/or a lack of attention to procedure in our business as well as in our technical activities is the primary causal factor leading to lawsuits. We have therefore chosen the phrase "Tending to Business" as one which best describes how we can improve our position vis-à-vis potential adversaries. One thing is clear: where good faith has prevailed throughout the life of construction problems, the resolution of problems and the process of getting to that resolution has been far less painful and costly to all parties concerned. This conclusion is simple, yet insightful. It suggests a valuable working hypothesis for construction practitioners -- know all you can know about whom you are working with upfront, before problems begin.

An extremely high level of interest in this study has been demonstrated by industry members. They not only need, but want the knowledge to help them. Problems are inevitable, the challenge for the industry, is to learn how and when to resolve them. For, while inevitable, problems are not insurmountable if the path is resolution not confrontation.

Copies of the Technical Report for the Research Project on which this paper was based may be obtained from Dr. Brisbane H. Brown, Jr., Executive Secretary, Building Construction Industry Advisory Committee, School of Building Construction-Room 101 FAC, University of Florida, Gainesville, FL 32611-2032. Cite BCIAC Research Project R 89-6.

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