Construction Defect Litigation
Construction defect litigation involves many long and complex phases, each having a direct effect on the next. BMC is often engaged to provide forensic architectural services early on in construction defect cases. Typically, this means getting a first-hand look at the as-built conditions and defect claims during initial site inspections, through both visual (or non-intrusive) and destructive testing observations. BMC will inspect the architectural components identified in the case, including but not limited to, roofs, windows, exterior finishes, interior finishes, waterproof finishes, decks, stairs and site conditions. On-site inspections involve the gathering of critical information about the existing condition of a project. Detailed field notes, sketches and photographic documentation are taken and these facts are later used as a basis for issue analysis and expert opinion. Preliminary Summary of Findings reports, Repair Recommendation reports and detailed Issue Analysis reports with supporting documentation are prepared. Detailed review of subcontractor contracts and a Scope of Work analysis may also be prepared. These reports have proven to be instrumental in the facilitation of subsequent phases of litigation such as mediation and expert witness testimony during depositions and trial. BMC has extensive experience with all phases of construction defect litigation. We are committed to due diligence for our clients through thorough evaluation, technical research, analysis and interpretation of information.
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Pre-litigation Construction Defect Claims
In 2002, California adopted Senate Bill 800 (SB800), also known as the Right-to-Repair law. The law, which affects only new homes sold after January 1, 2003, gives the builders of a residential project the opportunity to work closely with homeowners (claimants) and to repair specific defects identified by those homeowners. Within SB800, specific standards outlining what constitutes an ‘actionable defect’ have been put in place for every component of the home. It has provided a sort of road map as to what building components may be determined as damaged and thus repairable. With these standards in place, the Right-to-Repair law attempts to prevent complicated construction defect lawsuits and to promote a faster resolution of matters between builder and homeowner.
BMC considers SB800 (California), and similarly Chapter 40 (Nevada), a good effort towards achieving an early resolution to construction disputes between builders and homeowners. BMC has provided consulting services in pre-litigation construction defect matters for builders and claimants alike. After site inspections, reports identifying specific locations of damages and reports responding to claimants’ list of damages are prepared. BMC will inspect architectural components of a building such as, roofs, windows, exterior and interior finishes, waterproof finishes, decks, stairs and site conditions.
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Federal Cases
Federal civil lawsuits are filed in the Federal District Court where jurisdiction is established. To file a lawsuit in federal court, the underlying claim must consist of one of the following issues: the claim is directly related to an issue protected by the United States constitution or the plaintiff and the defendants are from differing states and the claim exceeds $75,000. BMC has participated in several Federal cases related to construction defect litigation where the plaintiff was not head-quartered in the same state as the construction project. Federal lawsuits have very specific requirements for the participation of expert witnesses and the Rules of Evidence must be strictly implemented. BMC has prepared reports related to the investigation, research, and analysis of the issues, and has provided expert testimony within a Federal case.
“The role of an expert witness is to assist the court through the provision of an independent and unbiased opinion about matters coming within the expertise of the witness.”
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Personal Injury
BMC’s experience in personal injury matters includes slip-and-falls, accessibility issues, workplace injuries and accidents leading to fatalities. BMC’s forensic services for personal injury cases include inspections of the incident location and documentation of the as-built physical conditions. These types of physical inspections have included retail/warehouse buildings, street intersections, personal residences, commercial properties, religious institutions and municipal buildings. Along with the documentation of conditions, research and analysis of applicable codes, permit history for modifications to the structure, and standards at the time of construction and/or the incident are evaluated. A Report of Findings with site conditions, documentary evidence, Code review, representative exhibits and conclusions gives the Client and attorney counsel a comprehensive understanding of the relevant issues relating to the "as-built" conditions. The Report of Findings has proven to be instrumental in providing attorneys with technical data critical in the resolution of personal injury cases. BMC assists clients with the interpretation of this information and also presents expert testimony in depositions and trial.
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Code Compliance / Accessibility (ADA) Compliance
A licensed design professional has a duty to understand and comply with all applicable laws, codes and regulations. As a licensed architect, Diane Ballard has performed building code compliance reviews and provided disabled access (ADA) design services for a wide range of projects from the initial planning and documentation stages of construction through the final stages of construction. Building codes and standards are regularly updated and modified and have become increasingly more complex in recent years. In addition, new building codes responding to the current public desire to reduce energy use and increase construction sustainability are being introduced. To add to the complexity, certain federal regulations may conflict with state or local building regulations. An experienced professional is essential in the process of determining what is needed to achieve balanced compliance. BMC also provides repair plans for code compliance. BMC has provided code compliance reviews for many building types such as single-family and multi-family residential projects to larger commercial and institutional buildings. BMC has an extensive library of building codes, dating back to the early 1930’s.
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Code Violations
BMC has experience in assisting clients who have been issued a violation for a non-conforming use within an existing building. These non-conforming uses usually apply to an addition or remodel that was not originally built with a valid building permit. Often these violations are for construction that is many years old. This type of code violation requires research of the City records for former permits on file, field documentation of as-built conditions, careful analysis of the requirements to bring the as-built conditions into Code compliance, preparation of construction documents for plan check and preparation of documents for City administrative review, as needed. BMC works closely with local building officials to achieve an approval of the existing non-conforming structure.
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Contract Disputes
Contract disputes are most often related to cost overruns or time delays. Any construction project could have multiple parties involved, from the design professionals to the General Contractor, and frequently include numerous subcontractors, building officials, construction managers, and/or State and Federal review agencies. BMC’s approach to contract dispute resolution includes an in-depth review of all pertinent project documents including plans and specifications, change orders, field reports, contracts and billing records. A Scope of Work Analysis report is prepared to establish a facts-based timeline of events. BMC has provided contract dispute resolution services for small scale single-family home projects to large scale federal projects. The BMC approach remains consistent for all project types.
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Standard of Care
The standard of care applied to a typical construction industry dispute claim relates to the degree of prudence and caution required of an individual who is providing services to the public. This is typically described as “whether the individual proceeded with such reasonable caution as a prudent (man) would have exercised under such circumstances.” BMC has evaluated standard of care issues for various parties in construction defect lawsuits, such as general contractors and sub-contractors. Sometimes, it is important to evaluate the standard of care for another design professional. This evaluation is called a “Certificate of Merit.” A Certificate of Merit can only be issued by an impartial third party who practices the same discipline as the defendant and provides a written certification that there is a fundamental basis for the complaint. BMC has assisted attorneys in assessing the technical merits of a potential case prior to filing a lawsuit against an architect.
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Architectural Design
BMC offers architectural design services for a variety of building types. New and remodeled residential, commercial and tenant improvements are a part of our specialized services. BMC will design your project from preliminary site planning to construction contract administration. We are LEED certified and ADA/CBC proficient.
BMC strives to provide the highest quality services and works closely with respected industry specialists and professionals such as architects, engineers, general contractors and other related consultants.
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Building /Condition Assessments
BMC provides residential and commercial builders with third-party inspections of active construction projects and provides building condition assessments of existing construction. Condition assessments are often required as a part of condominium conversion projects and insurance claims for damaged building components. By providing investigation services and conducting comprehensive evaluations, BMC is able to assist our clients with repair methodologies for construction projects with water intrusion, mold and other building component failure complaints. BMC will identify problem areas and offer repair recommendations and drawings for those conditions requiring repair or remediation. Our company also serves as a liaison for conflict resolution between the building owner and general contractor/developer. BMC provides constructability analysis and quality control for architectural drawings and construction documents both during and after the completion of the document preparation. In addition, BMC provides property inspections and coordination of builder turnover at the completion of construction.
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Homeowner Association Support Services
BMC offers architectural consulting services to Homeowner Associations throughout San Diego and Southern California. Conformity to community guidelines is often difficult to achieve because individual homeowner opinions about the desired look of their homes are always very personal and subjective. A consulting architect serving as a liaison between the individual homeowner and the HOA will provide an unbiased third-party review of contentious issues. BMC provides reviews of homeowner applications for architectural improvements and their compliance with the community’s CC&R’s and architectural guidelines. Approval or denial letters are prepared for complete applications. Upon receipt of the Notice of Completion, BMC will perform an on-site review and issue a final letter of compliance. When requested, BMC attends periodic Association board meetings to discuss pending community issues regarding architectural improvements or upgrades. BMC will also review stale and outdated architectural guidelines and offer professional recommendations on potential changes to update old rules. This encourages a community to retain a fresh look without compromising aesthetic and stylistic consistency and allows the Board of Directors to provide up-to-date guidelines for issues such as energy and water conservation.
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