Our experienced Orlando construction attorneys have a great deal of knowledge about construction defects. We also understand the challenges contractors face daily in their pursuit of performing high-quality work. In spite of this, defects still happen occasionally. We advise contractors to use this article, as well as part one, as a resource to help minimize and avoid spoliation claims no matter if they are filing a claim or defending one.
Making a Spoliation Claim
To make a claim for spoliation, it must be proven that a potential litigation existed which required the evidence that was destroyed, and that there existed a duty to preserve that evidence. It must also be proven that the evidence has been destroyed and its destruction significantly impairs the claimant’s ability to pursue litigation as well as prove the elements of the claim. It’s important to note that all parties have an affirmative duty to preserve evidence. If you are a contractor who feels an owner has destroyed evidence, you have a right to submit a spoliation of evidence claim. For further assistance, we recommend contacting an Orlando construction lawyer.
How Contractors Can Protect Themselves
Contractors can find themselves in a bind when faced with a construction defect. Things can get risky when the evidence that needs preserving happens to be equipment that is needed to conduct ongoing business. Furthermore, what about a defected material that needs to be repaired promptly for immediate use? In these types of situations, quick decisions need to be made. Contractors can protect themselves against a claim or defend themselves against a claim by doing the following:
- Upon discovering a defect, gather information about the parties who may have caused the defect.
- If litigation has not occurred, alert the opposing party of your intention to file a claim or raise a defense.
- Request that the opposing party preserves evidence and allow you to inspect it.
- Inspect and photograph the evidence immediately and ask to participate in the storage and preservation of the evidence.
- Alerting your attorney of physical evidence in your or the other party’s possession.
- Notify potentially responsible parties before making repairs so they can inspect and collect necessary data regarding the defect.
- Provide all potentially responsible parties with an opportunity to supervise the repair.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.