Litigation-I Win, You Lose vs. Mediation-Win/Win

Image
  Litigation is a zero-sum game.  It destroys relationships and fosters enmity between the parties.  Parties rarely walk away happy.  Even if they win, the expense of litigation is enormous, and collecting on judgments is difficult. Disputes ultimately resolve, but the focus on winning at any cost can lead to prolonged legal battles.  Living with a lawsuit causes ongoing stress, which can distract you from your business and even have an effect on your health. In a courtroom, the final decision lies with a judge or jury who may not fully grasp the complexities of the case. Parties relinquish control over the outcome, potentially leaving them dissatisfied with the final judgment. Mediation has the opposite effect.   Rather than polarizing people, it enables the parties to attack the issues and not each other.     The process promotes open communication, collaboration and problem-solving, which enables parties to actively participate in crafting mutually beneficial solutions.   It res

Coronavirus and Construction-Slow the Spread!


Yesterday I received my first call from a client with a corona-virus related legal question: If their company suspended projects for two weeks, would they get sued?  Would they be facing legal liability?

So, I would like to provide some reassurance and advice for those of you in the construction industry.
First, the disclaimers.  I am not a medical professional.  We have not formed an attorney-client relationship (unless we have one already).  I am not advising you on your unique situation.

Photo by CDC on Unsplash

1.       Can I put projects on hold without facing liability?

Yes.  At the end of the day, this is a national emergency.  You have the right to protect yourself, your employees, subcontractors and your customers.

2.       Are there clauses I can put in my projects that will protect me?

Yes. Some of you have one already, but it can be expanded.  If you have ever wondered what “force majeure” means, it refers to natural disasters or Acts of God.  Many of you have “no damages for delay” in your contracts.  If you don’t, you should.  In addition, we can now spell out that a pandemic is one of the circumstances that would prevent damages for delay.  I would add the following:

Contractor reserves the right to suspend or cancel projects in the event of a pandemic, natural disaster or other force majeure events in order to protect the health and safety of its workers and customers.  Contractor will make every effort to resume its projects once, in Contractor’s discretion, it has been deemed safe to undertake its regular business operations.

If you prefer, you can also give your customers the same right to suspend or cancel.

Here’s another clause:

In no event will Builder be liable to Owners or any other party for any special, incidental, delay, emotional distress or consequential damages arising from this Contract.  Builder shall not be liable to Owners for any damages resulting from coronavirus or other force majeure policies enacted by Builder.

3.       Should I suspend operations?

It depends.  This is clearly a decision that is unique to each company.  If you are performing new construction or an addition, it may be easy for you to continue working, as long as your workers maintain social distancing.  If you are in the remodeling industry, the situation is different.  If your workers can block off an area of a house or building and keep the owners from entering the area, they may be able to continue working.  If so, it’s time to rent that Port-a-Potty and tell your workers not to use the Owner’s bathroom.  They should wear their masks to prevent transmitting illness to customers.  They should not interact with their animals or children.  They should sanitize or wash their hands as frequently as possible.  If workers are even slightly ill, they should not come to work.

4.       Can I get sued for suspending or canceling a job?

Yes.  Anybody can sue anyone at any time for any reason.  That said, a lawsuit based on delay or breach of contract related to coronavirus will probably not survive a motion to dismiss (this is just my opinion).  What court or jury would award someone damages for protecting public safety?

5.       Create a policy for your workers and enforce it.

I found out I was exposed to coronavirus on a Saturday.  I had an arbitration that Monday.  I had no way to contact the parties in advance and needed to decide how to proceed.  I did reach the other arbitrators, and we agreed I would participate by telephone as long as the parties agreed.  It would have been much easier if there was a procedure in place in advance.  Here are some ideas:

a.       Create a private company Facebook page where employees can post.
b.       Utilize an interactive software program so you can keep customers aware of what is happening with their projects.
c.       Agree to respond to texts (limit to emergencies if you prefer).
d.       Remind your workers to check these forms of communication every day so they are up-to-date on the latest issues.

I will send out another newsletter if I receive more questions from clients or think of more challenges that the industry may be facing.  I implore everyone to use common sense and work to slow the spread of the virus.

Please feel free to call or email me with your questions.

Sincerely,

Andrea

Goldman Law Group
60 Austin Street, Suite 210                                              
Newton, MA 02460                                                                
 T: 617-953-3760
agoldman@goldmanlg.com
www.GoldmanLG.com

“Massachusetts Builders Blog” www.buildingconfidence-llc.blogspot.com
"Home Contractor vs. Homeowner Blog"  www.andreagoldmanlaw.blogspot.com

Popular posts from this blog

Eligibility Requirements for the LEED Green Associate Exam from Green Building Education and Training

What are the eligibility requirements for the LEED Green Associate exam? http://www.green-buildings.com/content/78626-what-are-eligibility-requirements-leed-green-associate-exam After March 31st, 2009, candidates for the LEED Green Associate (GA) credentials must fulfill eligibility requirements. LEED Green Associate candidates are required to do ONE (1) of the following: Option 1: You must be (or have previously been) employed in a sustainable field of work This is perhaps one of the more nebulous requirements posed by the GBCI, because no definition of a "sustainable field of work" is given. The USGBC does state that the company needs to "relate to environmentalism or the green building industry". If you are in any doubt that your profession would qualify, contact the GBCI at gbci.org or by calling 1-800-795-1746. Option 2: You must be (or have been) involved in a LEED Certification Project To prove eligibility by way of LEED project involvement, you must have bee
Read more

EPA Starts Assessing Fines for RRP Violations

From Mark Paskell's blog:  http://www.thecontractorcoachingpartnership.com/Blog-Contractor-Coaching--Construction-Business-Coach-EPA-RRP-Lead-Rule/ The press release below came from the EPA.  It has been hard to persuade contractors that they need to become certified when it did not appear that the Renovation, Repair and Painting Rule was being enforced.  Now, there have been two substantial fines publicized: one in Connecticut last month ($30,700) and the one listed below.  It is time to have your contracts reviewed, insert clauses to protect you under the new law, and have your insurance policy reviewed for lead coverage! Kansas City, Kan., March 31, 2011) – Window World of St. Louis, Inc., has agreed to pay a $19,529 civil penalty to the United States to settle allegations that it failed to notify owners and occupants of at least 20 St. Louis area residential properties built before 1978 of lead-based paint risks prior to performing renovation work at those locations. Accordi
Read more

Should a Contractor Have the Homeowner Test for Lead?

I would like to learn more about the advisability of lead testing.  Homeowners might not want their homes tested for lead, because it becomes public record, and may interfere with the sale of a home or the ability to obtain a mortgage or homeowners insurance.  In addition, I strongly advise contractors not to do the testing themselves.  Let the homeowner pay an independent company to do it.  Otherwise if the GC brings a claim against a lead testing company for a false negative, the company might state that the GC did not use the test kit properly.  If the homeowner does have the house tested, consider refusing to do the work unless the homeowner has lead abatement work done.
Read more