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What to Do if You’re Sued and More From Q&A With Construction Lawyer

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Recently, I needed to ask my friend Rob Tanner, a Florida attorney who is board-certified in construction law, for legal advice. Even if you’re not in Florida, you may find some of what Rob has to say helpful, so I thought an interview with him might make an interesting post, something different from what I usually write. So, here goes:

LC: I understand Florida is one of only a few states to board-certify attorneys in construction law.

Robert S. Tanner

RT: Florida is among the very few states in which lawyers can achieve board certification in the area of construction law. In Florida, to get certification in construction requires knowledge in lien law; construction contracts, both private and public; design professional liability; licensing; suretyship; and construction insurance, among other areas.

What’s involved in becoming a board-certified construction attorney?

Achieving board certification involves peer review concerning competence and professionalism and requires significant experience in handling construction-law matters, a minimum number of hours devoted to construction-law education, and, of course, passing an exam. Recertification is required every five years and requires demonstration of continuous and substantial involvement in construction law and 75 hours of continuing legal education concerning construction law since last applying for certification and, again, peer review for competence and professionalism.

What are some major legal issues you see affecting contractors—especially mechanical contractors—here in Florida?

Florida mechanical contractors face a number of legal issues that bear on their bottom lines. For those performing work in the residential condominium setting, the pre-suit notice-of-claim process described in Florida statutes, Section 558, and subsequent litigation are a common and expensive feature. It practically mandates a separate line item on the schedule of values. Preserving lien and bond rights is also essential. There are numerous ways those rights can be lost. A contractual requirement for the mechanical contractor to complete his work despite disputes with his customer combined with a loss of lien or bond rights that otherwise would secure payment, and the contractor can have a really bad year.

What are the first things a contractor should do when he learns he’s being sued?

When a contractor learns he is being sued, there are several important steps to take immediately. First, of course, he should contact his lawyer. Depending upon the type of lawsuit it is, it may be appropriate to submit the claim to the contractor’s insurance carrier. While the fear of increased premiums may be legitimate, those additional premiums can be quickly outstripped by the costs of defending and resolving the suit. Even if the contractor initially believes that he’d rather pay the litigation and settlement costs out of pocket, serious consideration should be given to at least notifying the insurer(s) of the claim because failure to do so can result in loss of coverage. You don’t want to inadvertently lose the coverage.

Second, with the lawyer’s guidance, the contractor should put a litigation hold on all documents and things that may be relevant to the litigation. This would include all electronic sources, too, including e-mails and text messages. Failure to preserve relevant evidence can result in severe consequences.

Third, again, with the lawyer’s guidance, the contractor should promptly conduct its own investigation, identifying all witnesses, taking statements, and collecting relevant documentation. It’s really hard to mount the strongest possible defense or to assert claims against others who are really the culpable parties if an adequate investigation is not done. Much can be lost by waiting, too. I recently had a case in which I represented the owner whose mechanical contractor that performed repair work died unexpectedly while the litigation was pending. Fortunately, his testimony had been preserved.

 

If you have questions for Rob, you may contact him at [email protected]. If you like the idea of an occasional interview in this space, please contact me at [email protected], and let me know the types of folks you’d like for me to feature.

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