That sinking feeling has crossed everyone’s mind at some point: “Did I accidentally throw out…?” It can happen to anyone, from valuable jewelry to uncashed checks or even (in the case of one contractor) to fire-pump control cabinets.
Demolishing the wrong equipment is a concern construction and demolition contractors should review before beginning any project. Recently, one general contractor and its demolition subcontractor would have benefitted from a more detailed “trash” talking session, which could have helped them avoid a dumpster-fire of a legal dispute.
In this case, the general contractor was contracted to renovate a hangar for a military base. The company subcontracted the demolition work to a local, family-owned contractor to demolish aspects of the hangar’s fire-suppression room. The two companies met many times, from planning to daily field walk-downs. They discussed that any equipment that was tagged with bright orange tags would remain in the fire-suppression room. The contractor also reviewed the demolition plans with the demolition company, detailing what should and should not be removed.
Later, through an amended drawing, the construction company circulated changes to the items that were tagged for removal, and the demolition company was tasked with removing a number of tags. With the removal of these tags, items that were previously marked to stay in place were now slated to be removed during the demolition process. After those changes and prior to starting the demolition process, representatives from both companies completed a walkthrough of the fire-suppression room. The contractor’s superintendent further confirmed that everything on the side of the room with the fire-control cabinets was to be removed and everything on the opposite side should stay. The demolition crew spent two days disassembling the control cabinets, including the tedious task of separating copper, nickel and steel components from the cabinets’ interiors.
A week after the demolition, the contractor had that “oh no” moment—they realized that the control cabinets should have stayed. At that point, the cabinets had already been discarded to the landfill. The general contractor blamed the demolition contractor for removing the cabinets, but the demolition contractor pushed back, indicating that they followed the general contractor’s instructions.
The parties took the issue to arbitration, and the arbitrator found that the contractor actively directed the demolition company to remove the control cabinets. The evidence established that the superintendent had daily meetings at the project site, so he was aware of what was being removed and what was staying. Furthermore, the superintendent often gave directions on the spot (including regarding the placement of tags) and expected the demolition company to follow through on those directions, despite what was shown on the plans. Given his daily involvement with the demolition company’s work and the testimony of all witnesses describing the superintendent as detail-oriented, the demolition subcontractor prevailed.
The arbitrator was not persuaded by the contractor’s contention that the demolition company should be liable based on the amended drawings, which reflected that the control cabinets should have been preserved. The arbitrator based his reasoning on three crucial facts. First, the demolition company was expected to follow the general contractor’s onsite directions to remove the control cabinets. Second, the demolition company double-checked with the superintendent, who had authority to give the demolition company field directions, regarding the final scope of the demolition of the fire-suppression room. Third, project progress photos showed the portable toilet used by the superintendent placed next to the control cabinet in the middle of the dismantling process. The proof required to sort out the circumspect/conjecture/aspect of the case was in those pictures. Ultimately, the general contractor was required to pay the demolition company the payment it was withholding for its demolition work.
To avoid this situation on your own projects, here are some best practices:
- At the start of any project, give subcontractors explicit instruction on where (from the supplied drawings) or from whom (the general foreman) it should be taking direction. If you are the subcontractor, ensure that your contractor makes those directions explicit.
- Together, both companies should develop a protocol that will be followed if there are any changes to the plans. For example, if the general contractor receives new plans regarding an item that was originally going to waste, the companies should review the plans during the daily walkthrough.
- If the general contractor will have someone onsite giving directions, determine together whether those directions will supersede any other directives, such as those from the drawings, or if the subcontractor should only follow written directions—which would be ideal, though is not always possible in fast-paced environments.
- This should go without saying, but a paper trail of the decisions that have been made can save both parties from headaches down the line. Foremen and superintendents should also keep daily logs, detailing each day’s work.
While demolition companies are in the business of removing rubbish, they need to remember the adage that one man’s trash is another man’s treasure. Demolition companies must work to identify their contractor’s treasures early on and contractors need to ensure they mark their treasures clearly.
