We are a subcontractor that recently finished a project. There was a situation where our work damaged someone else's work by accident. The GC at the end of the project sent us a backcharge for the repair. We disputed in saying that according to the plans we were clear of utilities, someone deviatated from the plans. If utilities were not placed in that area we would of never caused the problem. We received a response," just because something is not where it is supposed to be, does not give us the right to damage it." We expressed it was an accident and we referenced the plans/drawings so we would not damage utilities. I have not heard back about the matter, I'm refusing to sign the backcharge. We still have monies owed to us. By the sounds of it, it is going to be a dispute. Should we request a prompt payment, or file a mechanics lien? Or both?
Yes, you should most likely demand payment, file a lien and do not "accept" the back charge. As a subcontractor, you're allowed to rely on the accuracy of the plans and specifications provided to you by the Owner/GC and if the error/omission in the drawings was the cause of the problem, then you should make a claim against the GC and the GC should make a claim against the Owner. If you need assistance from an experienced construction attorney, please let me know.
I agree with Attorney Brown though I don't recommend that you file a mechanic's lien just yet if you have time to file it within 90 days of your completed work, if only to try to amically resolve the dispute between you, the GC, and the property owner. Filing a lien does not foster goodwill. Actually, the location of any underground utility pipes and cables in the area of the proposed work site should have been clearly marked under the Call Before You Dig (CBYD) Connecticut program. In fact, it is the law in Connecticut that anyone who requires excavation must call for this free service to flag the location of the underground pipes and cables. This knowledge would not only have prevented the utility facilities from being damaged but also protect your own workers from harm. The GC and property owner should consider themselves fortunate that no one was injured or killed by improperly deviating from the plans and drawings.
Thanks Austin & Carlton. Carlton, this was a new construction project, so the utilities damaged had been in place for months before the incident occurred & was found at the tail end of the project. The utilities damaged luckily would of never harmed or hurt anyone.
I have not executed the back charge for the repair. There has been no response or update for weeks.
I don't disagree with any of the advice above. I will say that a sub's decision to file a lien does not automatically mean that the relationship between the sub and GC is beyond repair. The filing of a lien is a business decision that protects the sub and is oftentimes quite useful in leveraging a settlement or resolution. You reference "prompt payment" rights as well- you may be aware that CT has a set of statutes (CGSA 42-158 et seq) that are distinct from lien laws and provide unpaid subs with additional remedies. You can learn more about it in my blog post here: https://mkrb.com/a-mechanics-lien-is-not-your-only-option-connecticuts-fairness-in-construction-financing-act-will-also-get-you-paid/. Good luck and feel free to contact my firm if you have additional questions. Paul Fitzgerald, MKRB, 860-522-1243
Rather than bringing out the big guns, it's best to take the high road while at the same time being pragmatic. You didn't mention the amount in repairs. Since you're a subcontractor and might hope to get more work from the GC, you might want to meet the GC half way on the repair cost after calmly and professionally explaining your position. Also, did you and the GC file a notice of claim with your respective commercial insurance carriers? Depending on the repair cost, the construction liability coverage might not exceed the deductible. But, just a thought. In any event, I suggest that you continue to reach out to the GC to try to resolve the issue as expeditiously as possible so that, in large part, you can get paid for your work.
Carlton- I professionally explained my position and pointed out that I viewed the drawing before our installation to avoid any encumbrance. I received that prat response. That was one option I thought of was to let my insurance company handle it. Unfortunatley I was never given the option or choice. I think it may be too late for that matter. The monies owed is almost equivalant to the back charge. They were tranparent with the charges for the repair.
unfortunately its at a stalemate as I have not heard anything in about 2.5 weeks. We are owed final payment and retainage. We are still within our lien rights. Techincally I'm disputing the charge. If I'm correct in speaking they may not withold monies over a dispute.
I appreciate everyone's input on the matter.