In construction defect litigation, one scenario appears repeatedly: a subcontractor installs work in a manner that differs from the plans, specifications, manufacturer instructions, or industry standards after being verbally directed to do so by the general contractor, superintendent, architect, or owner’s representative.
At the time, the decision may seem minor. The project is moving quickly, the field team wants to maintain progress, and nobody wants to stop working over what appears to be a small issue. The subcontractor may trust the superintendent or project manager and assume the conversation will be remembered later if questions arise.
Years later, however, when the project experiences problems, the people involved may deny the conversation occurred, remember it differently, or simply no longer remember the project. Without written documentation, the subcontractor can find itself defending claims for defective work, even though it performed the installation exactly as directed.
In Colorado construction defect litigation, these disputes frequently arise years after project completion, long after project personnel have changed and memories have faded. By that point, the project record often becomes more important than anyone’s recollection.
The core problem is usually the same: there is no written record showing that the subcontractor raised concerns about the deviation and that someone with authority approved the alternative installation method.
When construction defect litigation begins, verbal approvals often become disputes about memory and credibility. Without documentation, the subcontractor may be left defending claims that the work was performed improperly, even when it followed clear field instructions from others.
Why Verbal Construction Directives Create Litigation Problems
Construction schedules move quickly. Decisions are frequently made in the field to keep work progressing. These decisions often occur during short jobsite conversations, telephone calls, or walk-throughs rather than formal meetings.
Communication on construction projects is also frequently informal. Superintendents, project managers, and subcontractor foremen regularly discuss installation details verbally rather than documenting them in writing.
In many construction defect cases, plaintiffs do not particularly care who originally made the decision during construction. They care who performed the work. The installer is often sued first, even when the installation method originated elsewhere.
Subcontractors may also feel pressure to maintain good relationships with general contractors. Requesting written confirmation or insisting on formal change orders can feel uncomfortable or unnecessary at the time. Experienced contractors, however, understand that documenting field directives protects everyone involved in the project.
Dry-Stack Brick Veneer: A Common Example
Consider an example involving brick veneer installation on a commercial project in Colorado.
The architectural plans and manufacturer guidelines require that the brick veneer be installed with grout joints. The manufacturer’s instructions also specify that grout is necessary in colder climates. Grout helps seal joints, adds stability, and reduces the risk of moisture intrusion caused by freeze-thaw cycles, conditions commonly found in Colorado.
During construction, however, the general contractor decides that the building should have a dry-stack appearance, where bricks are installed tightly together without grout joints. The subcontractor responsible for installing the veneer explains that the manufacturer guidelines require grout and that installing the bricks without grout would not comply with the plans or installation instructions.
According to the subcontractor, the general contractor responds that the architect has approved the dry-stack appearance and directs the subcontractor to proceed.
Relying on that direction, the subcontractor installs the brick veneer without grout.
But there is one major problem: nothing about this decision is documented.
There is:
• No change order approving the deviation from the plans
• No email confirming the dry-stack installation method
• No text message requesting or granting permission
• No meeting minutes referencing the decision
• No written confirmation from the architect
Years later, moisture begins to penetrate the brick veneer system. Water infiltrates the ungrouted joints and eventually causes damage within the building envelope. The owner files a construction defect lawsuit alleging improper installation of the brick veneer.
The subcontractor explains that it installed the veneer exactly as directed and that the general contractor represented that the architect approved the approach. However, because the installation deviated from both the plans and the manufacturer’s instructions, and because there is no written proof of approval, the subcontractor may still face significant liability.
Even if the subcontractor’s recollection is entirely accurate, the lack of documentation makes the defense substantially more difficult.
Why Documentation Matters in Litigation
In litigation, the issue is often not whether the conversation occurred. The issue is whether the subcontractor can prove it occurred.
Jurors, mediators, arbitrators, experts, carriers, and attorneys frequently evaluate cases based on the project record. If there is no documentation showing that a deviation was directed or approved, the subcontractor may appear to have independently ignored the plans, specifications, or manufacturer instructions.
Even a short e-mail or text message can materially change how responsibility is allocated in a construction defect claim.
Best Practices for Subcontractors
The safest approach is simple: create written documentation whenever installation methods deviate from the plans, specifications, manufacturer instructions, or industry standards.
The following practices provide a practical hierarchy of protection, from strongest to weakest.
- Obtain a Written Change Order
The most effective protection is a formal change order signed by the general contractor authorizing the alternative installation method.
A change order should clearly identify:
• The portion of the work affected
• The alternative installation method
• That the method differs from the original plans or specifications
Ideally, the change order will also reflect approval from the architect or engineer.
A signed change order provides strong evidence that the subcontractor did not independently choose to deviate from the project requirements. Instead, it demonstrates that the deviation was knowingly approved during construction.
In many cases, a clear change order can resolve disputes before they escalate into litigation.
- Send Written Communication Explaining the Correct Method and Request Confirmation
If a formal change order is not available, the next best option is to send a written message, such as a letter or an e-mail or text, explaining the correct installation method and requesting confirmation of the alternative instruction.
For example:
“Manufacturer guidelines require grout joints for brick veneer installations in cold-weather climates like Colorado. Installing the veneer as a dry-stack system would deviate from those guidelines and the plans. Please confirm that you want us to proceed with the dry-stack installation.”
This type of communication documents that the subcontractor understood the proper installation method and warned the general contractor about the deviation.
If the contractor responds by approving the alternative approach, that response may become valuable evidence later.
- Send a Follow-Up Message Confirming the Conversation
If the decision has already been made verbally, the subcontractor should still document the conversation afterward.
A simple message might say:
“Following up on our conversation today on site, you asked us to install the brick veneer using a dry-stack method without grout.”
Even a brief follow-up message creates a written record of the instruction. If the general contractor disagrees with the summary, they have the opportunity to respond and correct it.
- Keep Detailed Notes of Conversations
The least protective option, but still far better than nothing, is keeping detailed notes on important conversations.
Subcontractors should record:
• The date of the discussion
• The location of the conversation
• The individuals present
• A summary of what was discussed
These notes should be prepared as soon as possible after the discussion so that details remain accurate.
Although personal notes are not as strong as written communication exchanged between project participants, they can still help establish credibility and provide context during litigation.
How Subcontractors Can Protect Themselves from Construction Defect Claims
A two-sentence email sent during construction may ultimately become one of the most important documents in the case.
When a project team directs work that differs from the plans, specifications, manufacturer instructions, or industry standards, subcontractors should protect themselves by creating a written record before the conversation becomes a dispute.