December, 2006

Crash Course

What’s in a word? Could be hundreds of thousands of dollars.

By Greg Brooks

You know the situation is urgent when a lawyer calls you minutes after receiving your name, which this one did.

A few months ago, I received an e-mail from an association exec asking if I knew anyone who could serve as an expert witness in a case where a lumberyard was being sued over a job site injury. As it happens, I’ve done it before (and we won) so I volunteered. My reply was barely gone from my outbox when the phone rang.

The purpose of the Innocent Sellers Fairness Act, sponsored by the National Lumber and Building Material Dealers Association and currently under consideration in the U.S. House of Representatives, is to protect retailers from liability when there was no wrongdoing on their part; for example, the attorney who bought a hammer, then sued when his son tried to smash rocks with it and put one in his eye.

The bill will pass if Congress has any common sense at all (which is to say, maybe not), and it’ll help reduce abusive lawsuits. But there’s something you need to do on your own, too. Here’s the story:

An excavation contractor was building a pole barn on his own property. If you’ve never sold one, the framing is dirt-simple: stud walls, trusses 8 ft. on-center, and 2x4 or 2x6 purlins between the trusses as a nailing base for the roof panels.

He hired a couple of framers who raised the walls, set the trusses and installed a third of the purlins before deciding that work just wasn’t their thing. When they walked off the job, one of the contractor’s own subs volunteered to take over. That was nice, except that an excavation contractor’s subs are ditch-diggers, not framers. A few days into the job, one of them was installing purlins near the ridge when the purlin he was kneeling on broke.

Falling 25 ft. is not dangerous. Landing is, and the worker was permanently disabled. He eventually did what any red-blooded American would do: he sued everyone in sight.

When I inspected the building, I thought we had an open-and-shut case. The purlins installed by the original framers—including the one that broke—were precut Lodgepole pine studs. Everyone agreed that stud grade was inadequate for the job, but the lumberyard had shipped No. 2 & Better SPF, and even the plaintiff’s expert witness, a structural engineer, said it was fine. The contractor claimed that all the lumber came from one source, but the lumberyard had never sold Lodgepole pine.

Then things got squirrely. As often happens on projects like this, there was no set of plans. All the lumberyard manager had was a rough sketch, so when he made up his materials list, he sized the framing according to common practice, based on years of experience supplying pole-barn builders.

That’s as normal as it gets. The problem was that, in his deposition, the lumberyard manager repeatedly spoke as if he had designed the structure.

That’s common, too. We “value-engineer” homes when we do take-offs and say we built them when we supplied them. In this case, the word “design” was just enough to muddy the waters. When everyone finally went to arbitration, the wholesaler and the mill were dismissed; the lumberyard wasn’t. While the contractor was clearly to blame, the dealer still paid six figures to settle.

The lesson? Speak precisely. Unless you’re licensed, you don’t design structures; you use span tables or software developed by licensed designers. You don’t make structural recommendations; you just share your knowledge of what others do.

It seems like splitting hairs, but when it comes to structural decisions, it’s important to keep the ball in your client’s court.