Why Take the Risk?

As a landscape expert witness, I review discovery materials and provide impartial expert opinions on a wide variety of landscape, horticulture, arboriculture and site construction issues. A common discovery item in many cases concerns whether work performed by a landscape contractor was contract or extra work. In most cases, the contractor had failed to obtain a construction change order, which could have serious consequences for payment and defense of standard of care in a lawsuit.

I recently started a monthly publication on my website addressing expert witness standard of care issues, tailored to the legal, insurance and construction professional, here is the full article:

Case Studies on the Importance of:

THE CONSTRUCTION CHANGE ORDER

While excavating for a footing on a public works project, the general contractor encountered an undocumented 3” irrigation mainline running across the construction site. The superintendent met with the landscape subcontractor and requested a cost for the extra work to relocate and install a new mainline and directed the contractor to start relocating the existing irrigation main the next day. The landscape subcontractor started the work and then provided a change order request for the extra work. The superintendent supervised the location of the new mainline, declined the subcontractors suggestion to install thrust blocks and directed the contractor to leave portions of the line exposed so it would be visible throughout the course of construction and avoid being damaged.

After four months of operation, on a weekend, the irrigation mainline burst at a fitting, flooding the site, causing considerable damage and repair costs. The general contractor submitted a change order request to the agency to cover the cost of the repairs and for schedule delays. The agency rejected the change order request, leading the general contractor to file a lawsuit against the landscape subcontractor and the agency. The plaintiff claimed negligent work was the cause for the irrigation main failure by the landscape subcontractor.

In another case, the landscape inspector for a public agency requested the landscape maintenance contractor shear down shrubs in a landscape median strip at an intersection due to site line visibility concerns. The landscape contractor responded to the request stating the work was extra to the contract and that shearing the shrubs was an incorrect horticultural practice and conflicted with the agency maintenance specifications. With that caveat, the contractor submitted a cost for the extra work but the inspector did not approve the extra request, he felt the work was either not extra or that he could have the extra work exchanged for some contract work not required elsewhere, thereby not expending extra agency funds. So, the work was never done.

Several months later, a traffic fatality at the same intersection resulted in a lawsuit against the landscape maintenance contractor and the agency; the plaintiff claimed negligent maintenance practices caused the accident.

I was retained as the landscape / horticulture expert witness in both cases. In each case, review of discovery materials revealed a common deficiency for both landscape contractor defendant’s, failure to pursue and obtain an approved construction change order prior to starting the work or documenting the reason the change order was refused. Neither defendant had created a paper trail or photographic file documenting the reasons why their change order request was not approved, their subsequent actions and follow up. In each case the plaintiff claimed the landscape subcontractor or maintenance contractor failed to satisfy the industry standard of care, therefore they were negligent and liable for damages.

Read and Follow Your Contract

Both the landscape contractor and subcontractor worked under contracts that specified the procedures required to submit a change order for extra work and explicitly warned the contractors that work without an approved construction change order was at the contractors risk and peril. Given such explicit warning in a contract, why would a contractor risk working without an approved change order?

One reason lies in real world site construction where construction schedules, liquidated damages and unknown underground site conditions create volatile situations requiring instant decisions and emergencies repairs. When there is a burst mainline with water flooding a site, no one is thinking about getting an approved change order to stop the flooding, the first action is to turn off the water.

Another obstacle to following the contract lies in the landscape contractor’s field supervisory personnel and their limited knowledge of the contract provisions. More often then not, the general contractor or agency inspector first contacts the landscape foreman or field superintendent with a work request. Field personnel are not construction managers; they do not possess contract knowledge and do not have the authority to proceed with unauthorized work. Unfortunately, many hard working, dedicated field foreman will go out of their way to satisfy the request of a general contractor or inspector, only to later hear from the boss they performed extra work without a change order.

Successful landscape construction and maintenance contractors or subcontractors provide informed, knowledgeable field personnel who properly understand and coordinate extra work and change order requests. Communication and coordination between the person requesting the work, the field foreman and project manager is key to effectively managing the request in a timely manner.

Change Order Request Refused, Now What?

If the change order request was refused, find out why. Was the work requested considered contract work? Was the pricing or scope of work in the extra request incorrect? Understand by refusing to accept your change order then properly documenting the reasons why it was refused as well as the possible consequences you stated could occur due to the refusal could play a critical role in a future lawsuit against your company.

Build a paper trail documenting your verbal and written communication and emails with your counterpart, establish the condition of the site prior to construction by taking pictures and constantly update the photographic file throughout the course of construction and final inspection. It is imperative to document the condition of the site upon final inspection and acceptance. Make sure you warn the client what you think could happen by the client refusing to approve your change order. In certain instances, consider having the client sign a waiver, releasing your company from any liability created by their refusal to approve the change order. Several years down the road when memories fade and a lawsuit lands on your doorstep, your job file and paper trail will prove an invaluable asset in your defense.

Why Take the Risk?

If your contract specifies an approved construction change order is required prior to starting the work, why risk working without one? You are under no obligation to provide extra work from a demanding superintendent or inspector, so don’t take the unnecessary risk. When requested, submit your change order request in a timely manner, follow up on the request until approved, if not approved, immediately ascertain why and take immediate and appropriate documentary action to protect your company. In so doing, you will protect your company from frivolous lawsuits by demonstrating industry standard of care.

About

Jeremy Rappoport, President and founder of Rappoport Development Consulting Services LLC is a professional horticulturist, C-27 California landscape contractor (#436000) and an ISA (International Society of Arboriculture) certified arborist (WE-9083-A) and certified tree risk assessor #CTRA 1220. Possessing decades experience working for major private and public master development companies, Mr. Rappoport is an acknowledged landscape, horticulture and site development expert, providing expert witness consulting services to the legal and insurance industries. Call 858-205-4748 to speak with Jeremy today!

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