SERVICES

Complex Construction Claims

David deals with complex construction matters split about 50/50 between owners, developers, architects, and constructors as plaintiffs or defendants. Each case is unique in its application of his multi-faceted and comprehensive career expertise. Depending upon the stage at which your case is currently evolving, David’s expert effort proceeds with a deliberate focus on your documentation with assistance in the next steps to processing the due diligence. Case examples include:

• A Complex Construction Complaint That Went to Trial in Miami-Dade County. The plaintiff was a constructor and defendant of a higher education institution. The complaint was Breach of Contract. The project scope was a shell and interior fit-out. There were six independent design firms and multiple subcontractors to the prime. Construction payments ground to a halt at about the 80% stage. Among the issues debated were: constructor duty of care; architect standard of care; nonaction prior to construction start; change orders; construction change directive processes; shop drawing issues; CPM management; non-code compliant matters; cost differential values; and filing of changes with the Agency of Jurisdiction. Also, there were numerous counter-claims.

• A Demand for Arbitration, American Arbitration Association format. The Claimant was the Constructor against Respondents, a hotel company, architect, project manager, subcontractors, et al., in the state of Wisconsin. The scope of the project involved historic renovation, demolition, underground parking, and new tower construction. Delays developed from a failure of timely securing of agreements from neighboring properties and building permits. The construction contract was a fixed amount which was challenged, and errors and omissions became a focus of added claims. Construction bulletins and change orders became a contended issue.

• Opining on the Architect’s Standard of Care. This Maryland project involved the design of a new multi-level, mixed use retirement community on approximately 20 acres of land. The case was filed in the US District Court, Alexandria Division by the developer/owner against the architect. The constructor entered into a fixed price contract. The claim, among other issues included: a failure of the architect to advise the owner of defects in the contract documents; multiple design defects in structural, mechanical, electrical, and fire designs; floor-to-floor height errors; plenum area conflicts; multiple change orders; building code failures; incomplete contract administration services and not meeting the contractual requirement of services being rendered in a manner consistent with the owner’s interests.

Facts and Deliberative Process

The industry understanding of an Architect Standard of Care relies upon the reasonable degree of care, skill, and diligence for design professionals and is usually couched in terms of “like Architect,” “community,” and “circumstances.” However, to discover the facts in any case, a broader standard of reasonable care could be used to more appropriately consider an architect’s actions. This would not only include the jurisdiction’s regulatory requirements like zoning and building codes and contractual promises, but also the knowledge and experience of the uniqueness of the design undertaking by the architect. Obviously, each of these three components are not weighed equally because in any deliberative process of an Architect Standard of Care, the critical considerations flow from the general to the specific.

To eliminate as few surprises as possible and discover the essential issues, the review process usually starts with the contractual agreements among all parties. The Duty of Care will become clear. The usual benchmarks are the Scope of Work, General and Supplementary Conditions, fees and payment provisions, and for an Architect’s Standard of Care, a basis of performance evaluation. Unless settlement is reached what should follow in the process will be a discovery period of enlightenment as exhibited by fact witnesses, expert reports and depositions, rebuttal reports and expanded testimony of experts, and finally, a trial by bench or jury.

Thesis of Opinions and Testimony

Whether unresolved conflicts are singular in terms of subject matter and parties, or complex regarding the magnitude and intricacies of multiple claims and counter claims, the thesis of opinions by an expert must be simply stated. The American Arbitration Association describes a complex construction dispute exists when at least $1,000,000 in damages are disputed, exclusive of claimed interest, attorney’s fees, and other costs. Many of my past 130+ cases have exceeded this dollar threshold and have included multiple plaintiff and defendant parties.

My thesis is that a Standard of Care and/or Duty of Care have been breached when the nature and degree of proven design errors and omissions and/or construction defects and deficiencies caused by any party, negatively impacts the design intent, minimum building code requirements, and building performance outcomes as a totality. Based on my historical case-related 20+ depositions and five trial/arbitration appearances, I have learned that an expert’s testimony, content, and communication effectiveness require the self-confidence to deliver a factual story, one which will be received by a judge or jury to be more likely than not true.

Peer Review Services

As founder of Forensic Architecture: Plaintiff and Defendant®, Mr. Chase brings experienced peer review services to the community of architects, designers, owners, and building professionals during pre-contract negotiations and all design phase activities to minimize practice risk exposure. Additionally, he assists agencies, developers, and contractors to apply Quality Assurance / Quality Control (QA/QC) principles to contract documents to minimize liability from flawed and non-coordinated instruments of service.

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