Construction Today - October/November 2011 - (Page 104)

Residential By Patrick E. Gaas and Ashlie Molbeck Courtroom D espite your company's best intentions, a construction project can and will go awry. It is easy to get wrapped up in the problem resolution without considering how the resulting costs will ultimately be recovered. Because problems in construction often end up in the courtroom, certain steps should be taken during performance of the project to ensure your lawyer has what he needs to get the job done. To best prepare for the worst case scenario, it is necessary to have an understanding of some of the basic legal standards and elements that a judge and jury will look for should your project end up in litigation. Breach of contract is among the most common claim arising out of a project gone wrong. To prove a claim for breach of contract, the following elements must be established: duty, breach, causation and damages. The first two elements most often involve measuring the performance of a party against the language of a contract. To prove causation, the party asserting a breach of contract must establish a causal connection between the damages sought, an alleged breach of a contract provision, and a responsible party. To establish damages, the party must prove not only the amount of its damages, but also that such damages were reasonable and necessary. Proving causation and damages requires detailed evidence, which can be captured most efficiently during completion of the project itself. Conquering the Proper Documentation To best ensure an attorney will have what he needs for litigation, documentation procedures should be implemented at the commencement of the work. Records kept in the aftermath of a problem will become the basis for establishing or refuting causation and damages in a later lawsuit. The records and information will be used to analyze the decisions made in connection with investigating, managing and resolving the problem and in completing the project. As such, it is imperative that detailed records be kept. Once a problem has been identified, determining the magnitude of risk resulting from the problem will define the approach to be taken, particularly with respect to the budget. For instance, when faced with substantial exposure, it may be prudent to call in a damages consultant who can objectively assess the project and determine how to best protect the interests of the company while the work continues. Consideration must be given to whether the procedures in place are adequate from the perspective of what may need to be presented at trial. Should this take 104 CONSTRUCTION-TODAY.COM OCTOBER/NOVEMBER 2011 http://www.CONSTRUCTION-TODAY.COM

Table of Contents for the Digital Edition of Construction Today - October/November 2011

Construction Today - October/November 2011
Energy Efficiency
Green Building
Executive Perspective
Best Practices
Bernards Construction – El Capitan High School
Bogner Construction Co. – College of Wooster Scot Center
Jean McClung Middle School
Hellas Sports Construction
The Walsh Group – NOAA Pacific Regional Headquarters
Haskell Co. – Scripps Proton Therapy Center
Robert A. Bothman Inc. – Stockton Unified School District
JE Dunn – Energy Systems Integration Facility
Rosendin Electric – AVUHSD Solar Project
Ratcliff Construction Company – Crossroads Church
University of Texas Southwestern Medical Center
Flintco Pacific – Calaveras County Adult Detention Facility
Lee Lewis Construction – Angelo State University’s Plaza Verde Student Housing
Manhattan Construction – First Baptist Church of Dallas
Market & Johnson – Eau Claire County Courthouse project
McTech Corp – 97th Military Police Battalion Headquarters
Parkland Health & Hospital System
RBC Construction
Central Building and Preservation – Randolph Tower City Apartments
Scaparotti Construction Group
Trinity Properties – Trinity Place
Advanced Real Estate Services
Lawrence B. Wohl Inc./Wohl Diversified Services
TN Ward and Commercial Interiors – Maryland Live
ASX Construction – Parc Lafayette
Bayland Buildings Inc.
Dependable Mechanical Systems
New Dawn Developments
DSLD Homes
Aquilini Development and Construction Inc.
Cobalt Construction – Meta Housing
Lifestyle Communities
Pratt and Associates LLC
Miramonte Homes
MP J.J. Duffy Joint Venture/Pathway Senior Living LLC – Victory Centre Vernon Hills
Woodland Homes
Aecom/Inima Joint Venture – Hialeah, Fla., Water Treatment Plant
MWH Constructors – Austin Water Treatment Plant No. 4
Pepper-Lawson Construction – Missouri City Surface Water Treatment Plant
MWH Constructors – AWT Improvements
Blount Contracting Inc.
Harbor Offshore Services
Cruz Construction Inc.
Humble Construction
Nova-Con Projects Ltd.
Trimen Electric
EllisDon Corp. – Atlantic Region
EllisDon Corp. – St. Joseph's Regional Mental Health Care
Focus Equities
Intercom Services Immobiliers
George Brown College – New Waterfront Campus
Seaside Transportation Services
Last Look

Construction Today - October/November 2011