Facts About Contractor Lawsuits
Homeowners file lawsuits against contractors for a number of reasons. Breach of contract comes to mind first. Homeowners may allege that contractors didn’t do what they agreed to. They may have failed to return a deposit, use the right materials, finish on time or pay their subcontractors for prior work. A contractor’s non-performance, based on breach of contract, is the most common reason for home improvement lawsuits.
Poor workmanship is another reason for home improvement lawsuits. Most cases filed by homeowners involve some allegation of faulty workmanship. Homeowners may allege that the completed work looks or functions poorly when compared to the contract. Some homeowners may allege shoddy work on the completed product. For instance, they may allege that their roof leaked soon after it was placed on their home or that their basement flooded shortly after installation . Yet other homeowners may allege that their new plumbing fixtures constantly leak or that their furnace heats grudgingly and only in some rooms. These cases are often caused by the contractor or his workers being in a hurry to complete the work. More subcontractors and employees on site can also result in a higher potential for conflict and bad workmanship.
Delays in performance are also common with home renovations. Weather is often cited as the reason for performance delays. However, skilled construction workers can often work in inclement weather. Also, many weather related delays have minimal impact on other work.
Violation of building codes is another reason homeowners file home improvement lawsuits. When a homeowner hires a contractor to perform work, they assume the work will meet current regulations. When this doesn’t happen, it can lead to conflict between a homeowner and builder.
When to Hire an Attorney to Sue a Contractor
There are certain signs that indicate when it’s time to hire an attorney. If a contractor is refusing to either fix the problems that caused the damage or is failing to cooperate with you in regards to the insurance claim, hiring an attorney may be necessary. Also, if you have already attempted to resolve the problem on your own and you have been unsatisfied with the result, it may be time to call in an attorney. There are many times when an unrepresented homeowner lacks the knowledge, either of the extent of their claim or the process necessary to resolve the issue. Lastly, in situations where the work performed by the contractor is so substandard that it has actually caused you damages, the time may have come for an attorney to bring a lawsuit.
Traits of a Good Construction Lawyer
There are several important qualities to keep in mind when choosing an attorney for suing a contractor. The first is that they have experience in construction law, and you are not the test case. In construction projects there will often be a large number of documents involved, including purchase orders, multiple contracts, change orders, lien releases, waivers, you get the picture. An attorney’s experience allows them to know what specific document must be filed in what situation, and often lets them notice small details that can make a big difference in the outcome of the case.
Another is a strong record of successful cases. While no attorney can ever guarantee victory in a case, a strong record is a good sign that they have been successful in the past. That’s not to say that they can’t have some losses, they’re only human after all. But the signs of a firm that takes on too much, or falls behind on their work are usually all too visible months later, and those alone should tell you that they aren’t up to the task of handling your case.
One of the most important qualities is shows professional courtesy and respect for both their clients and also their opponents. Along those lines, good communication skills are essential. The level of communication needed varies from case to case, but you always want a lawyer who is available to answer your questions and keep you updated on developments in the case. This also includes the quality of communication, their ability to fully answer your questions, and explain things in a thorough and complete manner.
If you keep these qualities in mind, you will be well on your way to finding an attorney suitable for suing a contractor.
Phases in the Litigation Process
The process of suing a contractor usually initiates with a meeting, either in person or via telephone, with either the attorney or his or her legal assistant, prior to the commencement of a lawsuit. In most cases, the facts of the case are discussed, and if it seems that there is a viable cause of action, the attorney is retained upon the signing of a retainer agreement and a retainer deposit is advanced to cover the initial legal fees.
After the attorney is retained, and the retainer has been paid, as discussed above, a civil lawsuit is usually commenced, by the attorney personally serving the contractor with a Summons and Verified Complaint as well as a Summons with Notice. The Summons and Complaint can also be e-filed with the court if the contested amount exceeds $20,000.00, and the appropriate fees are paid to the court, or else, the Summons can be filed with the court, together with the required filing fees, and served upon the contractor.
After the Summons and Complaint are served upon the contractor, a period of time in which the contractor must file an Answer with the Court usually begins. The amount of time within which an Answer must be filed can vary, depending on the parties involved (i.e. , whether the contractor is a corporation, an individual, etc.), the contestability of the matter, and other factors. For example, the Answer must be filed within 20 days, if the contractor is an individual and was personally served with the Summons and Complaint, and within 30 and 35 days for a corporation, if served personally.
Once the Answer is filed, the next step would be discovery. This procedure usually takes place if there is no dispositive motion pending, or the Court has not scheduled a conference. Discovery usually involves written demands for the exchange of documents, and/or the scheduling of depositions in which the parties to the action, and any non-party witnesses to the matter, are asked questions under oath. In most cases, given the nature of this type of litigation, these proceedings are resolved without the necessity of going to trial. However, if a settlement is not reached, and the matter cannot be disposed of summarily, then the matter is usually placed on the trial calendar.
If the matter proceeds to trial, the testimony of each witness is presented to the Judge at the appropriate time, and the procedural rules of the New York Court System govern the admissibility of evidence, and other legal issues.
Possible Outcomes and Remedies
An attorney will be able to initiate mediation between you and the contractor which can lead to a determination as to who wins the dispute and what remedy to impose. The ultimate outcome of a lawsuit may be payment for damages, or performance of contract obligations. Some of the potential remedies include:
The point of a lawsuit is usually to get the contractor to either pay damages or rectify the defect with their own labor and materials. If the contractor has the ability to do those things, then it may be likely that a lawsuit is the solution to the problem.
There could be a situation in which damages for the delay and inconvenience are unavailable to you. If the contractor has substantially performed all of their duties to the contract, you will have to wait until the contractor is able to reenter your home, or to finish construction, before they are required to pay damages.
Specific performance can be a remedy in some situations, but only if the remedies to be awarded would not be suitable.
It is important that you discuss these potential outcomes with your attorney because you will want to know the likely result of any lawsuit before you file. If you know that you are unlikely to recover the amount of damage you are requesting, your attorney may provide you with other options prior to filing a lawsuit.
Ways to Avoid Problems with Contractors
There are many steps homeowners can take to reduce the risk of having issues with a contractor. The first, and most important, is research. Homeowners should do their due diligence and thoroughly vet any potential contractor. Ask the contractor for references and verify their licensing status. If your contract requires a building permit, ensure that your contractor obtains it. Check the contractor’s references with past clients and confirm that the contract specified the job in detail and set forth negotiated prices for each step of the process.
Once the contract is signed, homeowners should have a clear understanding of when to expect milestones to occur. Maintaining regular contact with the contractor during the process can help to resolve small issues before they become major problems. It is important to document all steps of the process , both with notes and pictures, so that if an issue does arise, the homeowner can utilize this documentation during any negotiations and/or legal actions. Additionally, homeowners should discuss the exact method of payment, and under what circumstances interim payments are appropriate. Homeowners should not pay contractors for work unless it has been completed.
If a homeowner believes there is an issue with the quality of the contractor’s work, they should address this as soon as possible. Homeowners should directly communicate with the contractor about the issues, and, if possible, negotiate a schedule for remediation.
+ There are no comments
Add yours