Ed Cross – The Restoration Lawyer | Pete Consigli – The Restoration Industries Global Watchdog | Special Report Harvey, Irma and Maria: The Legal Perspective and an Update on Restoration Progress

Air Date: 9-29-2017|Episode 479                                                                              Listen|Download

This week we welcome The Restoration Lawyer Ed Cross and The Restoration Industry Global Watchdog and RIA Industry Adviser Pete Consigli for another special report on Hurricanes, Harvey, Irma and Maria.

 

Full Description:

This week we welcome The Restoration Lawyer Ed Cross and The Restoration Industry Global Watchdog and RIA Industry Adviser Pete Consigli for another special report on Hurricanes, Harvey, Irma and Maria. We will focus on legal issues for those doing restoration after hurricanes and also get some tips for consumers dealing with restoration related issue. Pete Consigli is based in Naples/Bonita Springs area and has been driving through Florida and networking with Restoration Industry Association (RIA) members from all the areas affected by these storms, we also look forward to an update from him on how things are going on the ground after this tri-fecta of storms hit the mainland and Caribbean portions of the US.

Ed Cross, J.D.
The “Restoration Lawyer” Ed Cross has built a successful law practice that specially caters to the needs of insurance damage repair contractors and remediators. Mr. Cross received a Bachelor’s Degree in Speech Communications with an emphasis on Public Speaking from California State University at Northridge in 1986 (Dean’s Honor Roll), and his Juris Doctor Degree from Western State University in Fullerton California. Ed is also well known for his risk management advice, cleaning and restoration contracts and related forms available for free and/or for purchase on his website. These are simple one page forms in plain English that protect payment rights and deter lawsuits. He has recently added contract forms specific to the needs of those doing work in Texas and Florida LEARN MORE at edcross.com

Pete Consigli, CR, WLS
The Restoration Industry’s Global Watchdog has been a long time friend and guest on IAQ Radio. Pete Consigli has been a member of the Restoration Industry Association (RIA) since 1977. In 2008 Pete was the recipient of the Martin L. King award and in 2012 was made an honorary member of the RIA. He has served the association the past several years in the dual role of RIA Education Director and Industry Adviser. Pete presently serves as an adviser with RIA’s education and certification committees and staff. He is a Water Loss Specialist (WLS) prep course facilitator and program adviser. Pete also advises the RIA board of directors and the association management team on matters impacting the restoration industry and RIA’s mission.

Z-Man’s Blog:

Quite a bit, for quite a while.”
Ed Cross, Restoration Lawyer and Pete Consigli, Restoration Industry Global Watchdog were the guests on this week’s episode of IAQradio. We updated our audience on Harvey, Irma and Maria and discussed legal perspectives of catastrophe restoration work.
Nuggets mined from today’s episode:
Pete Consigli, IAQradio’s global reporter, resides in Southwest FL and has been crisscrossing “Alligator Alley” visiting restoration contractors and key suppliers. Here is his firsthand account:
Marco Island, Collier & Lee Counties including Naples, Bonita Springs, Estero, Ft Meyers, Cape Coral and Lehigh Acres were without power for over a week. This region on the SW gulf coast of Florida was in the eye of the storm and hit harder than its counterpart region on the Southeast coast or Atlantic side of the state. There is significant damage that also occurred in the Tampa Bay area and the greater Orlando area, but received much less news coverage. East coast of FL was spared a direct hit while the FL Keys and Miami Beach were pounded. Dade and Broward Counties experienced tropical force winds and heavy rainfall. Florida’s east coast bounced back faster than the west coast. There is still standing water in low lying areas on the SW coast. Maria rewet areas that were drying. Significant levels of mold remediation projects are underway. Due to awareness of IICRC water damage and mold remediation standards; IEPs are in demand by: Home Owner Associations and on institutional and commercial projects. IEPs are writing remediation protocols and performing PRVs. Sunbelt Rentals and JonDon are helping to support remediation efforts with trucks and personnel on the ground. Interstate Restoration publicly announced they are deploying to Puerto Rico. Quite a bit of remediation will be going on for quite a while.
There is less insurance coverage in Texas. Remediators are seeking commercial work. Much of this work is being done by larger firms who had prior Disaster Plans and Emergency Response Contracts in place. Emergency response work is also being done by out of state firms, repairs and rebuilding most likely should be done by locals.
Florida Governor Rick Scott quickly stabilized fuel prices. Florida’s attorney general promised to punish those who take advantage of and/or rip off consumers. In fact, in the immediate aftermath of Harvey, Texas’s AG went on the news channels and sternly warned potential price gougers they would be prosecuted if caught!

The costs of Harvey, Irma and Maria will exceed those of Katrina, Sandy and the 2004 four hurricanes in 30 days in Florida. There is always a shortage of equipment with each larger event seemingly surpassing its predecessors. The new thing always seems to supplant the old thing.

Update from St. Croix

RadioJoe provided an update from Addison Christian in St. Croix. St. Croix was hard hit and Puerto Rico is devastated by Maria. Most electric still remains out after 8 days. Addison, a lifelong resident of St. Croix who has seen and been through prior weather events says this is the worst he’s ever seen or experienced. Hospitals and government buildings are still running on emergency back-up generators.

Has contract law changed, can contracts written for use in one start be used in another?
Ed Cross- The overview from California, the areas affected by hurricanes and tropical storms are in a period of great chaos, and a time of adjustment and adaptation.
Yes, contract law changes, and contractors should get an annual update from a lawyer who understands the unique challenges faced by contractors who perform disaster recovery work. That lawyer should be licensed in the jurisdiction where the work will be performed. Each state has unique requirements for what must be included in contracts, and many states require specific language dealing with issues such as the right to cancel, mechanic’s liens and insurance.
Ed offers contracts, disclosures and mandatory notices for free and for sale at  www.TheRestorationLawyer.com/contracts with special packages specifically designed for Florida, Texas and California. He collaborates with lawyers licensed in each jurisdiction.
Pete’s Lessons Learned from Prior Cat Losses
  • Do you have the financial resources to work out of state? Be prepared to wait 6 months or more for payment.
  • Do you have relationships and credit lines with suppliers?
  • Food and housing for staff?
  • Do you have work to do?
  • Who is your customer?
  • You’re an outsider, be aware of the local culture and customs?
  • Temporary CAT adjusters who are onsite at the outset of the project may vanish and when the claim is then turned over to a desk jockey, the question becomes are the “rules” the same?
  • Do you have a local strategic partner? [The value of association membership and networking relationships.]
Resources:
Purdue makes disaster recovery management book freely available
The 10th International Conference of the International Institute for Infrastructure Resilience and Reconstruction included an industry panel on best practices.
Direct download of proceedings from Purdue’s e-pubs
Check out the upcoming October Issue of Cleaning & Restoration Magazine for a round table feature on lessons learned from responding to CAT losses by RIA members.
Ed’s Lessons Learned from Prior Cat Losses
  • Big events create big temptations. Contractors with great intentions, do good work, but won’t be paid!
  • Be brutally honest with yourself about your capabilities, resources and how long it takes to get paid. Be prepared to wait at least six months to get paid.
  • Many owners do not have flood insurance. Try to confirm that insurance or other funds are available to pay for your work. Do you have generators or is electrical power available for your equipment?
  • Be aware the government can commandeer your vehicles and equipment. (Your fuel and generators are at greater risk).
  • Be very selective in selecting jobs and customers.

CAT Adjusters- Ed

CAT losses are a time of great chaos. Failure of communication causes most problems on insurance claims. As an attorney he untangles communications and often acts a bit like a mediator to bridge the gaps. Ed advises his clients to create a clear and organized paper trail of documentation. Understand that if it isn’t written down and documented, it’s like it didn’t happen. Take photos before, during and after the work. As you may be receiving instructions from multiple claims personnel, ask the Claims Manager or VP of Claims who is in charge and who’s instructions to follow.

CAT Adjusters- Pete

CAT adjusters are the initial eyes and ears of the insurance carrier. Temporary and/or subcontract CAT adjusters have limited authority. When CAT adjusters hand off the claim “understanding” may be lost in the transition; resulting in the contractor being blindsided months after the work is done by a desk adjuster or TPA who attempts to slash their bill and renegotiate the scope of work or policy coverages or limits.  Since emergency response and structural drying is more profitable contractors can better afford to take potential payment risks on these tasks rather than on lower margin and higher material cost repairs and reconstruction.

Lien Laws- Ed

Lien laws are highly technical. They change over time. Do not attempt to prepare them yourself unless you are very well-versed in the latest requirements.  It may only cost several hundred dollars to have an attorney file a lien, or at least counsel you on the rules. Rules regarding lien laws are strictly interpreted because they affect the owner’s property rights. Improper filing or technical defects of a lien can result in liability for damages. A lien puts a cloud over the property’s title, which can result in the owner losing an opportunity to refinance the property at a lower rate. The property owner can then sue the lienholder for damages. A lien begins as a notice of a claim of a lien, and a lawsuit must be filed to perfect the lien. It does not become an actual lien, at least in some states, until the court adjudicates the lien claim.

The American Rule says that each party in a contract must bear their own attorneys’ fees. A contractor may be entitled to collection costs and associated expenses when included in a properly-worded contract.

Lien Laws- Pete

Costs to file a lien are part of the costs of doing business and are not necessarily recoverable.

Assignment of Benefits- Ed

Many mistakenly believe they have an Assignment of Benefits (AOB) in their contracts, when they actually only have a Direction of Payment.  A Direction of Payment is an administrative provision that instructs the insurance company where to send the check.  It is not a transfer of legal rights to the insurance policy benefits.  A properly-worded Assignment of Benefits actually transfers ownership of part of the claim to the contractor.  It can also transfer the right to sue the insurance company for bad faith.  It allows the contractor to step into the shoes of the insured and become a claimant.

Most insurance policies have provisions that purport to prohibit assignments.  Those Anti-Assignment provisions are enforceable in some states such as Texas, but are not always enforceable in states such as Florida and California.  In some instances, a Florida contractor may be entitled to reimbursement of attorneys’ fees when pursuing a case against an insurance company to enforce an AOB.  Again, one must be familiar with the local law to operate without significant peril.

Assignment of Benefits- Pete

Mortgage companies can also get involved in insurance claims and use insurance proceeds for past due mortgage payments. Fee shifting in FL is more important than AOBs because fee shifted legal expenses are in addition to property repair/replacement costs.

The one thing there is in surplus on  CAT losses is GREED! RIA President Chuck Violand sent an email to association members thanking them for the service they will be providing after Hurricane Harvey and reminded them to remember the group’s Code of Ethics and the need to treat people fairly.

Advice for consumers from Ed Cross:

  • There are consumer protection resources and websites in each state, use them.
  • Have an attorney review any contract before signing. Don’t sign what you don’t understand.
  • The contract should detail the obligations of both parties.
  • Time and Material Contracts are illegal for residential work in many states.
  • Demand both a fixed price and a list of all suppliers and subcontractors. To avoid paying twice if general contractor fails to pay suppliers and subs, it’s preferable for the property owner to arrange to pay the GC’s suppliers and subcontractors directly.
  • Never issue partial payment without receiving a partial lien release.

Considerations for Consumers, from Ed Cross

Each state has one or more consumer protection Web sites, with lots of helpful information about contract law and the process of hiring a contractor.  If you are asked to sign a contract you do not completely understand, have it reviewed by an attorney.  Do not allow a contractor to rush you into signing a contract.

The contract should clearly explain the obligations of each party.  Do not sign a contract with empty spaces.

Many states require contractors to commit to a specific price for residential work, rather than hourly or “time and materials” contracts.  The price must be stated in dollars in cents in a writing signed by the customer before work must begin.  “Time and materials” contracts are illegal in those jurisdictions.

Owners should ask for a list of subcontractors and suppliers and require that it be updated whenever there are changes.  Pay the subs and suppliers directly and never make a payment to any contractor without a release of the lien rights for that payment.

Pete’s Comments about Pricing Structure

Pete is a longtime advocate of Time and Material billing and a Written Price List.

Large commercial losses have greater oversight (clerk of the works, etc.) than residential losses.

Change orders can be used to modify pricing on a fixed price contract.

Further Comments from Ed about Pricing Structures

“Time and materials” contracts are appropriate for many types of jobs.  But many contractors have found themselves in very difficult situations in court when the customer testifies that if she had known the price was going to be so high, she never would have hired the contractor in the first place.  The judge turns and asks the contractor: “Couldn’t you have provided an estimate?” and is disappointed with the contractor’s response.
In states that prohibit certain types of “time and materials” contracts, advise the customer that water damage is a progressive condition, that it is difficult to determine how long it will take to dry, but that the state requires a lump sum price.  The contract can explain that the price is subject to modification by change order.  Do your best to estimate the price as accurately as possible and revisit the job on day two or day three, monitor the progress of the drying and obtain change orders as necessary.  If the customer refuses to sign a change order, pull off the job, following reasonable precautions to protect the building.
Z-Man signing off
Trivia:
What is the derivation of the word lien?
Answer:

from the Middle French lien “a band or tie”

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