An educational blog devoted to Florida contruction law topics by Florida Bar Board Certified Construction Lawyer, Trenton "Trent" Cotney. Please visit www.trentcotney.com for more information. Disclaimer below.
Subscribe to this blog
Follow by Email
The Paper Trail
Trent Cotney, P.A.
Twenty years ago, a roofer 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, nine 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, subcontractor, or supplier’s first line of defense to claims on a construction project is always the contract. The contract contains pertinent provisions that a party 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 roofers within a certain time period (3 business days) after the discovery of 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, delays or other claims on a project. These written communications can include daily reports, e-mail, memoranda, phone messages, and letters. Furthermore, if you notice defective work (that is not your own), make sure to take extensive photographs and/or video of the alleged problems. Visual depictions are especially useful in defending claims where contractors are hired to repair a building that is already suffering from defective conditions, water intrusion or pre-existing mold.
A party should also use common sense when issuing or authoring written communications. Barring any contractual provisions to the contrary, a good rule of thumb is that if it is good for you, meaning that it can assist you with bringing or defending claims, put it in writing. If it’s bad for you, pick up the phone and avoid putting something in writing that can later turn out to be a smoking gun if you are in litigation or arbitration.
Once the roofer has generated documents such as the contract, daily reports and follow-up correspondence, it is important that the roofer 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 roofer’s position, a roofer 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.
Need a new roof? Why not one that can generate energy?
Solar company SolarCity, which is in the process of being acquired by electric car maker Tesla, plans to show off a new product, a roof integrated with solar panels, at an event on October 28 in San Francisco.
Tesla CEO and SolarCity chairman, Elon Musk, made the announcement on Twitter on Thursday morning, and said the combined company would unveil a solar roof with an integrated battery and a Tesla charger.
While SolarCity SCTY3.07% has offices in San Mateo, Calif., Tesla has its factory in Fremont, Calif., and a new retail outlet in downtown San Francisco. The companies’ merger is expected to close in the coming months, but it could also be delayed by aseries of shareholder lawsuits.
Musk announced plans for SolarCity’s new roof product in early August, on one of SolarCity’s earnings calls. It was the first call Musk had joinedsince he announced earlier in the summer that Tesla planned to purchase the solar installer.
No sooner had Dow Chemical Co. ended production of its Powerhouse solar roof shingles than Tesla Motors Inc. CEO Elon Musk announced he was getting into the market.
Musk said “solar and batteries go together like peanut butter and jelly.”
A $750 million factory is under construction in Buffalo, N.Y., where Musk’s pending acquisition, SolarCity Corp., will manufacture a product similar to the one Dow just dropped. The solar shingles are integrated into the roof — with no mounted, tilted panels — and serve as both the top of the building and a source of clean energy.
The exit of one industrial titan and the apparent arrival of a billionaire entrepreneur shows the commercial effort to harvest the power of the sun is continuing on a “natural progression,” according to Integrated Solar Technology LLC CEO Oliver Koehler.
Based in Port Chester, N.Y., and in the market for two years with solar shingles and tiles, Integrated Solar Technology does business as SunTegra. Koehler said the company…
Which health and safety
violations occur most often on the job site today? With construction accounting
for one in five workplace deaths in 2014, higher penalty payouts in place and
new rules for tracking and recording violations looming, we asked the Occupational
Safety and Health Administration which rules are broken most often on
construction-related projects. As it turns out, the
worst offenses have largely stayed the same over
time. It should come as little surprise that fall-protection mishaps top
the list. With more than 20,000 incidents reported in the last four years, it
remains the leading cause of death in
construction. Following close behind are faulty ladders and
inefficient eye and face and head protection. This summer, OSHA
announce its interim rule raising maximum civil penalties by
78% to meet the requirements of a federally mandated increase
designed to ensure that the fines reflect inflation. The rule went into effect
on Aug. 1, bumping the maximum fee for serious vio…