Legal Question in Construction Law in California

We enlisted the services of a Draftsman at a local lumber yard to draw house plans modified from a plan that we found online. The company advertises on their website under services offered: "Drafting Accurate CAD-generated plans which can be easily and quickly modified, enlarged, or reduced." The plans were completed and went through the County Planning Department where they were approved. When our builder got to the phase of contruction where the stairs to the upper floor were to be built it was discovered that there was only going to be four feet of clearance between the top stair and the line of the ceiling. This obviously is not code compliant or functional and revisions were necessary. Our builder reports that he made several attempts to contact the Draftsman about this issue but that his calls were not returned (I believe my husband provided our builder with the Draftsman's cell phone number). After going over several options we decided, with the help of our builder, that raising the ceiling height another four feet in the portion of the house affected would be the best fix with the least amount of change to the A-frame type style we had chosen. Our builder drew the plans for the additional ceiling height, had the appropriate engineering done, and proceeded with construction. The total cost for fixing the mistake came to 13,334.00. I contacted the manager of the lumber yard who empolyed the Draftsman and was informed that the Draftsman had left the company. I explained what had happened to the manager who was immediately defensive and told me that he couldn't believe the Draftsman would make that kind of mistake and asked if we had paid for the plans. I told him that we had not due to the fact that when we asked for the bill we were told by the Draftsman to call him out to see the place when the trusses were on and he would bill us then. Of course by that time the mistake had been realized. I told him that we had every intension of paying for the service had we received a bill. He told me that he would contact the Draftsman and get back to me. After more than a week I had not been contacted so I called the manager again. He said he had spoken with the Draftsman and he was going to meet with him to go over the plans and contact me then. After more than a week I had not received a phone call. I asked my builder to write a letter detailing all of the plan inaccuracies (of which there were several) including the ceiling height mistake, and providing an itemized list of costs associated with having the ceiling height raised. My builder provided me this information with detailed drawings of the changes that were made. I then forwarded this to the manager. A few days later I called him to see if he had received the letter (by email). Contrary to previous conversations in which the manager expressed disbelief that his Draftsman would make the mistake I was reporting, he now told me that plan mistakes like this happen all the time. During all of our conversations the manager has been very argumentative, and has denied any responsibility for the mistake saying that it should have been caught by the builder prior to construction beginning, or that the county should have caught the mistake. He has been critical of the way the situation was handled insisting that our builder should have contacted him rather than the Draftsman about the issue. I explained to him that his company advertises a professional and "accure" service and that I do not believe 13,334.00 mistakes are an accepted professional standard in the Draftsman's field. Also, it is unfortunate that the mistake was not caught earlier by others reviewing/working from the plans but the mistake originated from his employee and if it is the job of the planning department and builders to ensure plan accuracy then there would be no reason for Draftsmen to exist (I could have easily scibbled the rough plan on a napkin and brought it to the planning department myself). In our last communication 5 days ago the manager said he would be out to the building site to, I guess, see the mistake for himself within the next day or two. He never showed up and I have not heard from him. He has been given our builder's phone number for any additional questions he may have. We are not litigious people and are not out to own this guy's business. If he had ever shown any interest in being the slightest bit cooperative I would have told him that in order to make this right with his customer we would be willing to accept 13,334.00 worth of materials we will need for the completion of our project at retail cost, that way he would only have to absorb his wholesale cost. I think this is more than fair as we have not asked for compensation for any of the more minor mistakes or delays in construction. However, since he has been so uncooperative and quite frankly rude I would now prefer that that his company just cut us a check for the cost as I don't trust that any other arrangement would be handled honestly or competently. Are any of his arguments legitimate or should we get a lawyer?

Asked on 4/10/11, 6:25 pm

2 Answers from Attorneys

Timothy McCormick Libris Solutions - Dispute Resolution Services

The manager is trying to blow smoke up your kilt. City and county building departments never catch plan errors. They rarely check for code compliance. All they are looking for when they review plans prior to issuing a permit is compliance with things like setbacks, hight limits, and other planning issues. In fact, even after they issue a permit and come out and inspect, they are not legally responsible for catching mistakes. They are immune from liability. As for the builder being responsible, that is simply incorrect. In a more complex project where the designer leaves some detailed design to be completed by the contractor via "shop drawings," you can get into some pretty exciting litigation over who is responsible for design errors, but when it is a simple project where the owner provides the plans and the builder builds it, the owner warrants the accuracy and buildability of the design as between the owner and builder. Ultimate responsibility is on the design professional as between the owner and the designer.

And in case he challenges you about the quality of the information you are getting here, I have been a construction litigator for nearly 25 years. I started out in the construction litigation group at one of the 75 largest international firms in the world. I've worked on cases arising out of projects ranging from single family home remodeling, and apartment building projects, to the San Francisco Ocean Beach waste water treatment plant, Elk Creek Dam in Oregon, and decontamination facilities at Subic Bay Naval Base in the Philippines. My last job for a paycheck was as a San Francisco Deputy City Attorney in charge of all construction matters for San Francisco International Airport.

If I can be of any further assistance, please let me know.

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Answered on 4/10/11, 7:10 pm

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

I'd give you some chance of winning a suit against the buildong-supply company and the draftsman, and I'd include the software maker if they truly sell the software package with a claim that it catches errors of this kind, but I very much doubt they do. The biggest issues I can see developing are (1) what did the building-supply firm actually claim the draftsman could do? (Designing homes and modifying plans is beyond what draftsmen are trained and licensed to do). (2) Is the error traceable to the draftsman's work, or the original plans? (3) Was it reasonable for you to rely on the draftsman to be able to do this? (4) Was the store negligent in hiring and advertising the services of the draftsman for this kind of project? There may be other issues as well.

One of the problems with claims in the $13,000 area is that they are really too big for Small Claims Court, where you would have to pare down the amount requested to $7,500, but not big enough to warrant the time and expense of going to Superior Court. This is especially true where winning is by no means certain and the factual issues not completely simple.

I suggest you discuss your case with a local attorney who can look at the plans and discuss both your chances of prevailing and the cost you would incur in getting a judgment.

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Answered on 4/10/11, 7:34 pm

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