Construction Daily Logs,
Incident Reports, & Progress Reports
Contractor Forms Series
WHY USE DAILY LOGS AND INCIDENT REPORTS?
As if you haven’t already stretched yourself to the brink with contract negotiation, change orders, filing mechanic’s liens, ordering, scheduling, coordinating, safety meetings, employee relations, preparing various contractor forms, and the usual barrage of phone calls and job site meetings. Now someone is suggesting you fill out more paperwork. Well, we have a solution. Or more accurately, an easier way of doing one of your less desirable tasks.
The importance of filling out daily logs and incident reports cannot be overemphasized. There is no better way to prove your position, resolve disputes, be successful in a mechanic’s lien foreclosure action, and keep track of progress. More significantly, these reports are “gold” if you end up in court or arbitration. Most court proceedings involve the scenario of: “He said A, she said B” –with no definitive documentation to prove either side’s position. Contractor attorneys and expert witnesses agree that one of the most crucial pieces of evidence (literally exhibit “1”) in court or arbitration are the notes taken at the time of the dispute or occurrence. And, we are talking about a simple contractor form anyone can fill-out. The sample below will demonstrate:
Example of a construction project from hell which ended up in litigation (and may have been prevented if there was a Log):
This is an actual case involving the substantial renovation of a hillside home in Pacific Palisades, California. The general contractor entered into a lump sum contract with the homeowner which essentially provided for the demolition of the existing structure and construction of a new two story home. To the south, the property sloped off dramatically and had a history of landslides. As a result, the project soil engineer prepared engineering plans for the placement of ten soldier piles on the south slope. The drawings outlined the locations and cross-section details, including the depth of the footings. This additional cost was approximately $100,000 and was part of the overall base contract.
It was understood by all that the final determination as to the need of such piles would be made by the city building inspection department. After reviewing the soil tests, the city engineer determined the piles would not in fact be required. Among other factors, was the re-investigation that showed the landslide debris was 20 to 30 years old and that the hillside had actually stabilized. On the other hand, that same engineer required a substantial amount of additional engineering for foundations, drainage, and retaining walls. As the contractor testified at trial, the $100,000 saved on the soldier piles was pretty much “eaten up” with the other structural requirements.
The homeowner brought a lawsuit for construction defects to the residence itself (with a mechanic’s lien cross-complaint), but at the same time had a separate cause of action for $100,000 damages which she claimed should have been a deduction due to the deletion of the piles. In other words, she thought she had overpaid. She testified she had never been told verbally or in writing they were going to be deleted, and actually assumed they had been installed. She further stated she had no evidence to the contrary, because the experts indicated soldier piles are buried underneath the surface of the slope.
The general contractor testified he had told his foreman to tell the homeowner about the deletions of the piles and that the cost was pretty much a” wash” with the other structural “add-ons” and so no deduction form the overall base contract was made.
There was no written evidence of the conversations of the parties of what occurred as to the deletions, the add-ons, or the pricing difference, whether by way of memos, letters, or anything else–other that the new plans themselves. The case took approximately three years to go to trial and was a literal nightmare of multiple depositions, retained experts, settlement conferences, pretrial hearings, and then a six week trial—at a cost to the contractor of over $75,000.00 in fees and costs.
The good news is that the contractor won on the piles issue, but the bad news is it cost thousands of dollars of fees and much wasted time and aggravation. The judge indicated the revised structural drawings clearly showed added work that was as much or more as the deleted soldier piles and that the plans were readily available to the homeowner.
Having said this, the entire controversy of the piles could have been prevented by a few minutes of time by the contractor. After the city engineer eliminated the requirement of the piles, either a daily log or a progress report to the homeowner could have said:
“Met with city engineer John Huston on August 17. After looking at the revised soil reports and revisiting the site, the good news is that he will no longer be requiring soldier piles”.
A month later after the revised structural drawings came in and required additional work to the foundation, drainage, and retaining walls, a short notation to the homeowner with a Transmittal Cover Sheet (as included for sale on this web site) would have buttoned up the case once and for all:
“Please find enclosed a copy of the revised engineering drawings dated September 13. You will note the changes I have highlighted in yellow which show the extra work to the drainage system along the south edge of the property, the two retaining walls, and the additional depth and widening of the foundations all around the perimeter. That new cost amounts to $107,500.00, and as matched against the omission of $102,500.00 for the deleted soldier piles, we will consider it a wash and no net additional costs to you.”
Enough with the lecture—here are the forms.