By Robert Blochinger
No matter how well you run your business, there will likely be a time you and your company will be brought into some sort of legal action either as a primary defendant or part of multiple defendants. You will find yourself in a situation where you or your company is being sued for substandard workmanship, job performance or breach of contract.
Breach of contract is a common primary theme in a legal action. The theme of a legal matter is the main point of reference and discussion from which the lawyer chooses to build a case. In a maintenance case it could be the lack of entry/walk-off mats and the flooring product is soiled beyond cleaning or subjected to a substandard cleaning process. You are brought in simply because your installed it; you touched it.
A construction defect case can result in every contractor who was on the job getting notified that they are now part of a legal action. Lawyers really don’t know what we may do in flooring, and that’s why they hire a Subject Matter Expert (me) to review the case, inspect the site and make an opinion and conclusion as to causation—and point the finger at the responsible parties.
For installation matters, some of the common issues can include no power stretching, incorrect floor prep, no moisture testing, adhesive failure due to inadequate adhesive volume, seam fraying, poor general workmanship, and a flooring product installation system that will not hold up to use or maintenance.
Here are some basic rules to go by when preparing for any legal action:
- Use a line-item contract. This will declare every portion of your job scope and responsibilities, and not leave anything to question or assumption. Think of how thick the GC contract is. Follow that example. Have a product specification packet for each job, which includes the installation, maintenance, usage and other published guidelines of the various manufacturers.
- Any flooring technician working the job should keep certifications on file and place any references into the job packet.
- Document every job with photos and notes of conditions prior to work commencement.
- Document the job before, during and after installation with photos and notes.
- Get signed work orders at completion ensuring that everything is in order and all workmanship is satisfactory, according to the contract clauses.
- Keep good financial records.
Legal actions tend to take place from six months to five years (or longer) to appear. If you followed the steps above, when you are served a lawsuit you can research and find the job packet with the supportive information for your defense. It’s just like keeping financial records for various taxes or insurance requirements. Keeping job records for legal action is preventative maintenance. General contractors keep daily and weekly jobsite reports just for this reason.
Here are a few recent cases to consider.
Case 1. The installer is part of a lawsuit for construction defects. There are other points to this; however the installer is being included because he touched the carpet.
The consumer claims the carpet can’t be cleaned, with reappearing spots/stains. The installer only provided labor, product, adhesives, and other sundry products supplied by the GC. He is part of the legal action, although he is not responsible for maintenance. He just performed a direct glue down of cut pile carpet. The carpet is seven years on the floor, and just now getting to trial next month.
The suit claims the spots are coming from the concrete substrate because the installer did not provide adequate substrate surface preparation and cleaning. Additionally, the building staff is not trained in correct cleaning and maintenance systems for this style of carpet. However, the installer has to face the expenses for site reviews, meetings, lawyer fees and lost time costs simply because, seven years ago, he touched the carpet.
Case 2. A while back I was hired to consult on stone tile used for exterior walkways. This was part of a big construction defect case, where about 75 companies were being sued for all sorts of reasons. The landscape architect was being sued for defective product, a natural stone cut from coral in the Caribbean area. He was considered responsible for the negative conditions.
Now the landscape architect has only one typical responsibility: to specify plants and trees for a designated area, to make it pretty. On his plans, the plants and trees were drawn in, with a location and name of that plant or tree. In these plans he also added retaining walls and lines in the walkways to show the tile. He did not specify, select, purchase, ship, install or clean these stones. However, because he was present on-site and drew lines in his plans, the lawyers included him in the legal action.
These should serve as sobering reminders that when you run a business, it’s not whether you will be sued; it’s when. So keep the tips I shared with you in mind, and always keep your jobsite records up-to-date.
