TORT AND PENALTY COSTS IN CONSTRUCTION

ASPHALT CONSULTING FOR GATED COMMUNITIES

There are a lot of risks in construction. One problem is that once something is built it is around a long time. Consider asphalt. If it is a component of heavy fuel oil, it is purchased and used in a short time. If there are problems, they are obvious, almost immediately found and taken care of. If the asphalt is used in pavements, on the other hand, it is around for years, and can be subjected to tort suites throughout its lifetime. One area where legal actions have been used extensively is with gated communities. What happens is that a team of attorneys and civil engineers contact the managers of gated communities and arrange to inspect the facilities, even after many years from construction, then sue all the contractors for one problem or another, real or imaginary. What is supposed to take place is that all of the contractors are expected to bring their insurance agent to a meeting and settle, then the attorneys and gated community share in the settlement. The attorneys can get real testy if the contractors don’t immediately capitulate.

I have had experience as a consultant on the side of a paving contractor, in which we demonstrated that one does not have to submit to such extortion.

It was very interesting with the projects with which I was involved that the engineering consultants on the attorney’s team did not even know the vocabulary of the field of asphalt technology nor were they to truly able to identify causes of stress or determine which contractor was at fault. In one case they were complaining that a product that had been applied years before had been out of specification. Unfortunately they were comparing that product to a specification of a completely different product but didn’t know enough about asphalt products to be able to recognize their error. Once I finally got that across to the attorney in a deposition, he immediately shut down the deposition.

The lesson to the contractor is to confront the attorneys with personnel who are truly experts in the field; not those with only limited academic training, but those with true experience with the field. While there can be problems that have occurred during construction that need to be addressed, problems of aging and lack of maintenance are not the contractor’s problem no matter how strong attorneys and unknowledgeable “experts” may make demands.

The lesson for the managers of gated communities is to engage someone who has real practical knowledge in the various areas of technology without the intervention of attorneys. It is very important that a maintenance program includes sealing the pavements to prevent oxidation and water damage which can greatly affect the life of a pavement.

In other areas of construction damage can be avoided. As an example, waterproofing stucco walls with certain excellent products can avoid water damage and mold problems.

And finally, a lesson for those writing the specification for asphalt paving in gated communities is to be sure that the paving specification requires that the paving mix be tested for water resistance.

Robert L. Dunning, chemistdunning@gmail.com, www.petroleumsciences.com

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