Construction Liability and Dispute Resolution
- Sean Kamana
- May 25
- 4 min read
1. Contractual Foundations
Every trade—architect, GC, and subs like concrete, framing, MEP (mechanical, electrical, plumbing), and fire protection—enters the project through a contractual relationship, often governed by AIA documents or custom agreements. These contracts define:
Scope of work
Standards of performance
Time and payment terms
Dispute resolution clauses
Contractual Foundations
Architect liable for failure to supervise (Miller v. DeWitt)
The law puts the burden of close supervision not on the contractor but on the architect as a result of the nuance of fault arising out of the standardization of some of the language in these contracts.
"Consequently, the court is imposing a duty of foresight on the architects which the contracts clearly placed in the contractor's domain. Secondly, the contracts indicate the customary division of responsibilities in the construction industry. The fact that they are so greatly standardized is adequate evidence of this."
2.Trigger Event (Dispute Genesis)
Disputes often begin with a trigger event, such as:
Delays: Concrete not poured on time delays framing, which delays MEP rough-in.
Defects: Faulty structural steel detail affects mechanical or fire layout.
Code violations: Architect or engineer’s design violates IBC or NFPA codes.
Non-payment: GC doesn’t pay subcontractors; liens are threatened.
Change orders: Disagreements on scope creep or design revisions.
Trigger Event (Dispute Genesis)
Design omissions lead to $2.5M fire code lawsuit (Air Albany v. Razak)
“The design created and approved by Razak did not require fire-retardant wood studs for the exterior walls, which 1211 Western has now learned is contrary to code requirements,” the lawsuit alleges. "This will require extensive and expensive remediation to correct, including replacement of all exterior framed walls on the entirety of the project."
Air Albany’s owners, who are backed by a U.S.-based operation of a Chinese real estate firm that ran into financial troubles, are seeking $2.5 million in the lawsuit, the cost of correcting the problems.
"The project is supposed to include 137 apartments, along with retail and office space and covered parking for 154 cars.
The project owners are also suing a former project manager for Air Albany who lives in Brooklyn. A civil lawsuit filed in April in state Supreme Court in Albany by the project owners alleges Riad Aafouallah awarded a $1.3 million subcontract to a Brooklyn company called Secure Mechanical without their permission and paid the company $292,5000, which has not been recovered."
3. Notice & Documentation
Construction law demands that aggrieved parties notify others of the issue—often in writing. Documentation is key:
Daily logs, RFIs, submittals
Inspection reports
Contracts and drawings
Emails and meeting minutes
Change orders and payment records
Contemporaneous documentation becomes the foundation for any legal action or negotiation.
Notice & Documentation
Mechanic’s lien for non-payment (MEP v. Truco MP)
Source: https://law.justia.com/cases/illinois/court-of-appeals-first-appellate-district/2019/1-18-0539.html
In this case, the complainant in the dispute brought claims against the general contractor for unpaid work in the form a lien against the property. The mechanical sub contractor had functioned in some ways as a general contractor organizing work and facilitating payment on the behalf of some plumbing, fire safety and construction management consultants.
The dispute centrally concerns the amount owed in the lien. As a result the court found the following valuable as an assessment of the credibility and accounting of the claim in the first place
"Section 7 of the Act provides in relevant part that no lien “shall be defeated to the proper amount thereof because of an error or overcharging on the part of any person claiming a lien therefor under this Act, unless it shall be shown that such error or overcharge is made with intent to defraud.” 770 ILCS 60/7 (West 2016). “Section 7 is intended to protect an honest lien claimant who makes a mistake rather than a dishonest claimant who knowingly makes a false statement.” Peter J. Hartmann Co. v. Capitol Bank & Trust Co., "
4. Dispute Resolution Channels
Before litigation, parties are typically required to pursue tiered dispute resolution:
Negotiation: Informal talks to resolve.
Mediation: Third-party facilitation without binding outcome.
Arbitration: Binding decision by neutral arbitrator (often AIA or AAA governed).
If these fail, the case proceeds to litigation.
Dispute Resolution Channels
GC awarded $22,000 of $1.3M claim (GC v. Sub)
5. Litigation: Phases and Critical Path
Once in court, the lawsuit follows a structured critical path:
Pleadings: Complaint, Answer, Counterclaims
Discovery: Interrogatories, depositions, expert reports (e.g., structural engineer analyzing collapse)
Motions: To dismiss, for summary judgment
Trial Preparation: Exhibits, witness prep, settlement talks
Trial or Settlement: Verdict or negotiated resolution
In parallel, mechanic’s liens, bond claims, and insurance subrogation may add complexity.
Litigation: Phases and Critical Path
GC liable for subcontractor’s materials (Davis v. FTJ)
6. Expertise and Causation
Each party typically hires expert witnesses to establish standard of care, causation, and damages:
Architect or engineer testifies on design flaw.
GC explains coordination failures.
Subcontractor defends workmanship.
Building code consultant verifies compliance.
Expertise and Causation
$7.6M awarded for engineer malpractice
Source: https://www.irmi.com/articles/expert-commentary/design-build-engineer-held-liable-for-negligence
7. Outcome and Enforcement
The court may award:
Damages (costs, lost profits, delays)
Specific performance
Declaratory relief
Lien enforcement
Post-judgment, collection or project unwinding (e.g., bond payout or forced repair) finalizes the process.
In essence, construction disputes are multi-party systems failures, requiring clear documentation, contractual clarity, and procedural rigor to resolve through law or negotiation.
Let me know if you’d like this restructured as a flowchart or tailored to a specific state or project type.
Outcome and Enforcement
$97M settlement for falsified Navy soil samples
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