by Joshua Mermis
America’s infrastructure is aging. Owners now more than ever are concerned about the condition of their buildings, roads, and bridges. Recent high-profile collapses of bridges and condominiums have crystalized the horrific and potentially deadly consequences of deferred maintenance and inattention. Moreover, lenders who are refinancing these structures and governmental entities recertifying their integrity are subjecting them to more scrutiny. But time and again these parties are running into a predictable problem: missing project files.
Retention Issues
Despite certain requirements placed on architects to retain design drawings, those requirements may demand a 5- or 10-year retention. But often the structure in question is much older than 10 years. Moreover, the project close-out file has been misplaced by the owner or archived in an antiquated software that makes accessing it exceedingly difficult. It is frequently the owners who are looking for this information, but they are ill-equipped to archive such information. Construction is not their core business, and the importance of the project close-out file is often lost on them.
But when the project-close out file becomes important and necessary, it falls upon the forensic engineers to search through public records or embark on time consuming searches to obtain the necessary information. Not only is this tedious and costly for the owner, but it also often results in a “dry hole.” It makes everyone’s job much more difficult. Sadly, this all-too-familiar scenario could have been avoided by some forethought and planning.
The Impact on Litigation
From a legal perspective, aging infrastructure leads to claims for money. Whether the owner is put in a position to defend itself against someone who was hurt by aging building or if it is the owner looking to remedy a latent construction defect, the owner is squarely in the middle of the dispute because it owns the building. But the owner did not construct the building. Inevitably, an owner looks to the contractor and the architect when claims arise.
It is the owner’s burden to prove its claims against the potentially negligent contractor and architect. But that burden is often difficult to meet if the owner does not have the project file. Without the project file, the owner does not have a clear picture of the design drawings, the design intent, the contractual obligations, and the communications between the parties prior to, during and after the project. And this lack of information puts the owner’s attorneys and consultants at a distinct disadvantage. They can’t do their job because they don’t have the necessary evidence. Again, this could have been avoided by some forethought and planning.
The Importance of Archiving
So, how does an owner avoid this all-too-common fate? It is imperative that the owner archive its project close-out documents. Ideally, the owner archives the project close-out file in such a way that it is readily accessible to the owner, the owner’s lawyers, and consultants. An ounce of prevention is worth a pound of cure, and the owner that invests in the archiving of its project file will save itself time and money in the future.
Joshua Mermis is a a founding partner of West Mermis, PLLC, one of Texas’s premier law firms for handling construction litigation, business disputes, and insurance defense. He is board certified in construction law and is a Fellow of the Construction Lawyers Society of America.
For more from Joshua about how owners can better protect themselves during construction-related litigation, check out his conversation with Owner Insite CEO Steve Harper on this month’s podcast.
