Posted On: January 10, 2007 by Donald B. Brenner

Who Do You Sue?

Generally, in determining who to sue and what claims to make, Stark & Stark's Construction Litigation Group is guided by our client’s knowledge of the history of the project, our experts and by our experience. We also review whatever documents are available and make reasoned judgments as to who to join in the original complaint. It is especially helpful to have the original as built plans, the records of the construction office of the local municipality, and any other local, state and federal agencies who may have played any role in approving the design of the development or project in question. We understand that we are going to have to amend the complaint—probably several times—until we have all parties joined who belong in the case.

We start with the developer and general contractor, and then add any subcontractors whose identities are known to us and who we have a good faith reason to believe have liability for the defects in question. If there are any defective products, we try to determine who the manufacturer and distributor are so we can join them to the suit. We frequently ask the developer-general contractor for a list of responsible subcontractors. They are usually willing to provide this information, since the developer-general contractor is typically looking to be indemnified by these subcontractors and design professionals anyway under the terms of the contracts between them or under state law.

Once the complaint is filed, we serve extensive requests for documents relating to, among other things, the approvals, design, construction and inspection of the project, insurance coverage and any deficiencies discovered or complaints by any unitowners, homeowners or other buyers or residents. We also serve written interrogatories on all parties to elicit important information such as: (a) who did what in connection with the project; (b) who supplied the materials in question; (c) who inspected the work; (d) what changes were made in the work; (e) what problems arose during the project; (f) what payments were made for the work or materials in question; and (g) what disputes arose during or after the project. After several months of discovery, we can usually identify most of the important players. We do additional amendments of the complaint as go forward and identify other responsible parties, such as subcontractors of subcontractors and repair contractors who may have come in after the job was well under way to fix someone else’s deficient work and thereby exacerbated already deficient work.

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