Why you need a construction lawyer to defend you against a defective construction claim.

Do you want an attorney that defends personal injury claims or a construction lawyer representing you where there has been an allegation of defective construction associated with the work of a subcontractor?  Obviously, you want an attorney whose practice is concentrated in the area of construction law.

As a preliminary matter, claims asserted by an owner against its general contractor for alleged defective construction are typically complex and costly.  Even "simple" payment disputes between an owner and general contractor can and frequently do evolve into allegations of defective construction by the owner against the general contractor to justify withholding payment.

If an allegation of defective construction is made against the general contractor due to work performed by its subcontractors, the general contractor should consider submitting such a claim under its Commercial General Liability ("CGL") Policy and notify the subcontractor whose work has been called into question and its insurance carrier.  As a general contractor, you should already have a copy of your subcontractor’s certificate of insurance identifying you as an additional insured under the policy before allowing the subcontractor to commence work.

If your insurer denies coverage for the alleged defective construction but agrees to provide you with a defense under reservation of right, you have the right to select a "construction attorney" to defend you against the defective construction claim and your insurance carrier must pay for that defense.  Do not let your insurance adjuster "assign" you to an attorney This is a construction defect case and not personal injury or a car wreck case.  There will likely be issues concerning the interpretation of plans and specifications, scheduling and coordination of the work, the standard of care required to be exercised by various parties involved in the dispute, construction industry standards and construction and design experts.  Make the right choice; retain a lawyer with construction litigation experience to defend you against allegations of defective construction not a personal injury defense attorney.

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Scott Wolfe - April 27, 2010 3:06 PM

Hi Chris - This is a good post, and something we see happen all the time. Clients go to the lawyer they know, as opposed to the lawyer that focuses on a particular area of law. And as a result, they don't get quality representation.

I think this is partially the bar association's fault, too. The bar associations go through great pains to prohibit attorneys from advertising that they are "specialized." And for what? In reality, attorneys are specialized. Laws are so comprehensive and complex, we must be specialized to be competent in what we ultimately do.

This is a good post for those in the construction business, however, as it is very important for them to approach lawyers who are familiar with construction parlance, schedules, plans, etc. - not to mention the specialized laws that apply to the industry.

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