How Divided Supervision Led to a Costly Stonework Redo [TCFA Classic]

In a historic restoration where three architects, an engineer, and a manager bombard a mason with conflicting orders, shoddy stonework triggers a costly redo. Can architects be liable for this mess when everyone’s calling the shots?

Uncover why too many cooks spoil the project, how documented orders save you, and why clear roles are your lifeline.

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Chapters

• 0:00 Cold Open
• 0:28 Podcast Introduction
• 1:08 Episode Introduction
• 1:58 Share This Podcast With Your Colleagues
• 2:26 Story Begins
• 9:07 Lessons
• 11:31 Credits And Thanks

Transcript

This Audio Claims Story is a textbook case of too many cooks spoiling the broth: Three Architects, an Assistant Architect, an Engineer and a Construction Manager – all supervising the work of a single stone-mason. Confusion and litigation ensue. Needless to say, written instructions would have saved a lot of grief. Keep listening, and maybe you can figure out … “Who’s in Charge?”

As part of a larger historic renewal project, a Mason, Philip Bloch, was contracted to reconstruct some rubble-stonework. The Specifications described the types of mortar to be used in different locations, depending on the exposure and strength required. The work called for the removal of old mortar to a certain depth, and the grouting of any cavities.

After the work had been completed, a large part of it was rejected, due to the mason’s failure to follow the Specifications. The Mason redid the work under protest and subsequently sued the Owner and the Construction Manager.

In this litigation drama, the Cast of Characters begins with:

The Plaintiff: Philip Bloch, Masonry Subcontractor; and 

The Defendants: Rubblestone Properties, the Owner, and the Construction Manager Derek Wynch. 

Drawn into the drama are the Engineer, and several Architects added as Defendants by amendment. They are: “The Design Architect,” who prepared the design and contract documents; “The Local Architect,” who was hired to review the work onsite; and “The Expert Architect,” whose job it was to provide advice on historical masonry. It was this Architect who was responsible for rejecting the mason’s work.

In his plea, the Mason claimed that there was nothing wrong with the mortar he had used, and he had expert opinions from the National Research Council to prove it. Furthermore, his work had been inspected – absolutely ... to death – and the mortar had been specifically accepted by the Engineer and by both the Design Architect and the Local Architect, all of whom had many opportunities to correct any error at an early stage. As for the Expert Architect, the Mason had no contractual requirement to please him, so naturally, he believed that approval had been withdrawn improperly and unfairly.

The Construction Manager stated that he had relied on the professionals, who were present at various meetings and who had – except for the Expert Architect – accepted the work. Since the Expert Architect reported directly to the Design Architect, the Construction Manager was not even involved.

The Design Architect admitted that he had observed the “wrong” mortar being used and that the Expert Architect had mentioned the problem to him. But The Design Architect had not recognized the significance and had taken no immediate action. In any event, he said, the Assistant Architect and the Engineer had issued only oral consent, and on this point, the Specifications were clear quote :“No substitutions or changes without the Design Architect’s written authorization.” Since the Mason had no written authorization, the Specifications should govern. He added dryly that the reason for requiring written instructions was to avoid problems such as this.

A second argument was also put forward: In redoing the work after rejection, it was discovered that the Mason had not removed old mortar to the specified depths, therefore, any problems with the new mortar were irrelevant. The original work was unacceptable.

The Local Architect thought the whole affair was a tempest in a teapot. All the mortar in question was going to be covered up anyway, and the Engineer had already accepted it. Besides, the Mason’s mortar was in common use in similar circumstances, so why make a fuss? Most other Architects would have accepted the work. He was aware that the old mortar had not been excavated to sufficient depth, but had tacitly approved it anyway, because the old mortar was extremely hard, so removal “to refusal” – that is, to a depth where it refused to budge – seemed more sensible. Why remove perfectly good mortar that had been there a hundred years?

As an added source of contention, the Local Architect had never been happy in his subservient role. When on the job, he acted as though he were the de facto Architect of the Works, and he was treated that way.

The Expert Architect had his own ideas about how things should be. The main objective was to ensure the strength of the wall and preserve its natural beauty by minimizing deterioration. He was the expert, and he was hired to advise specifically on the preservation of old masonry. However, his contract with the Design Architect afforded him three site visits only, and so he relied on the others to monitor the work.

The Engineer’s defence was simple and straightforward. The mortar was perfectly acceptable from an engineering point of view. He knew nothing of the preservationist’s theories and had not been consulted on them.

Pro-Demnity represented all three Architects, so a delicate balance had to be struck. The Architects all felt that the Mason was at fault … but as a back-up, each was perfectly happy to blame the other two.

Pro-Demnity felt that a court would have much less sympathy for the Architects collectively, than for The Mason, who was a “simple tradesperson” and had believed what an Engineer and two Architects had told him. Besides, if the Architects were to insist on adhering to the fine print of the specification, with its requirement for written authorization, it would cast them in a bad light, since the Design Architect’s Assistant Architect did not deny authorizing the continuation of the work.

Furthermore, the claim that the work was discovered to be substandard in the first place did not ring true. The Local Architect had, after all, accepted the work – and he was the review architect. It was also a potential embarrassment that the Design Architect insisted that the Local Architect had no authority, except to report to him – and was not entitled to waive the specification.

The Construction Manager also had a duty of care, since he was present when all the decisions were made, and should have insisted on the specs being followed. He could not claim, as he tried to, that he was merely an innocent observer.

In the end, the matter was settled with all three Defendants and their respective Insurers contributing. A much more expensive litigation was thereby avoided. 

The Lessons to be Learned from this Claims Story are simple and, in hindsight, glaringly obvious.

The First Lesson is a classic: “Too many cooks spoil the broth.” It’s good to be on a team, but every team needs a game plan and a captain. 

Lesson #2: According to another old saying, “If you hire a chauffeur, let him (or her) drive.”

The Design Architect wanted to be “in charge,” with the Local Architect having only limited authority on the site. But this arrangement proved unworkable. The Expert Architect was also hamstrung by having only a minimal role. He should have been engaged, as he claimed, to “review the work onsite, when it started, and at reasonably frequent intervals afterwards.” Why, he wondered, was he employed if not to be listened to?

Lesson #3: “Don’t rely on the fine print.” 

This may seem to contradict the well-established rule “Read the fine print.” But there has been an increasing tendency toward an excessive and unwarranted belief in the power of the written word. The fact is, you should always read the fine print – carefully – but you should not always expect that it will carry the day. If an Architect speaks directly to a Contractor and authorizes work, it is absurd to say later that his oral instructions should have been ignored. … which brings us to: 

Lesson #4: When you issue instructions, write them down.

When oral instructions appear to contradict written instructions, such as those in the Specifications, how can a contractor or tradesperson know which to follow? Your oral instructions may be obeyed on the spot, but those same instructions may be forgotten or denied the moment a problem arises. It’s been often said that “Oral instructions are of little value in a legal action.” This is certainly true if they appear to contradict written instructions. 

Always remember that the law also recognizes a quality called “reasonableness.”

As suggested at the beginning, you may very easily find yourself in circumstances like these. Remember these four lessons and, with care, and with some good fortune, you won’t also find yourself in a situation where everyone – and no one – is in charge.