Bradley partner David Owen spoke to Construction Dive on the top three legal disputes within the construction industry and how to keep these issues out of court by planning for the unexpected, documenting everything and leaning on third-party experts.
“Many owners don’t want to wait until final engineering is performed before they begin construction because time is money,” said Owen. “If they’re building a project, they’re building it for a reason and they usually want it sooner rather than later.”
Owen recommended that to avoid disputes of scope, that risk be divided in a contract to the party who can control it. In other words, if an owner pays for the design, they should warranty it to the contractor. Similarly, if labor is an issue, contractors should control the risks since they are the party most capable of solving that problem. But sharing all risks across the board should be avoided, Owen said.
“If everybody is responsible, then no one is responsible,” Owen commented. He also indicated that employer and contractor foresight could help in avoiding construction disputes through mitigating risk and maintaining responsibility.
“Contractors can’t see any further into the ground than the owner can,” Owen said. “So if you’re on a project where you’re installing deep foundations and there’s a chance the foundations might have to extend twice as deep as what the design indicates, then that should be addressed on the front end.”
“The standard rule is that if the owner provides the design, it warrants that design,” explained Owen. “If there are mistakes, that would be a breach of contract, and the contractor would be entitled to damages.”
The complete article, “The Dotted Line: Construction’s top 3 disputes, and how to avoid them,” was published by Construction Dive on November 29, 2022.