With multi-party construction defect claims, it becomes imperative for the claimant to fully understand each defendant’s scope of work and how it may have contributed to the damages sought. This becomes critically important where, for example, there has been different contractors involved with different subcontractors (perhaps even for the same trades), such as where an owner has terminated a contractor. In such instance, it may be difficult (if not impossible) to determine which contractor’s work was defective or caused the damage. While a global settlement is the goal in any mediation, the reality is that all parties may not want to settle, and the claimant may need to consider whether to partially settle against some, but not all, of the parties. In such case, the claimant will need to evaluate whether the parties willing to contribute are offering enough based upon their potential share of responsibility for the defect(s) and resulting damages. A settlement for too little with some parties may leave the claimant unable to become whole (or as close as possible) where the remaining non-settling parties only share a small portion of the liability and will be entitled to a set-off against the claimant’s damages for the amount of the settlement.
Consideration of Percentage of Construction Completion
Another important consideration is the percentage of work completed. Consider for example where the contractor has been replaced after performing a portion of the work and that after completion, the owner alleges defects with the same scope of work. How should claims of defective work be allocated between them? On a percentage basis? Some other basis? How can the claimant prove which damages arose from which contractor’s defective work? Or is the burden on the contractor to show that its work did not contribute to the damages? Because Florida no longer follows joint and several liability, liability is apportioned based upon a party’s respective degree of fault. These are practical considerations that cannot be overlooked when going into mediation.
For further help understanding each party’s scope and percentage of construction completion, contact Florida construction mediator and lawyer Gary L. Brown at (954) 370-9970 or (954) 448-1133.