Articles & Case Studies

Site Photos as Safeguards Against Construction Litigation

If a picture is worth a thousand words, it can also save you thousands of dollars.

The Schinnerer Group reported that payouts for insurance claims against design professional policyholders for large architerctual projects can result in severe damages of over 2 million dollars.

XL Catlin’s 2009 “Risk Drivers” report also revealed that nearly 40% of insurance claims
against design professionals stemmed from a communication breakdown that weakened project management processes. Oftentimes, these breakdowns in communication can be directly traced to poor documentation.

Imagine your firm is facing such a claim or lawsuit, which is often tied to a survey error, design flaw, or construction defect. How can you best defend yourself?

The answer is simple: Strong documentation. This includes photographic evidence.

When done right, the documentation process starts well before your firm faces any litigation issues—and hopefully helps protect you against costly settlements or lawsuits down the line.

An example of the risks of poor project documentation should put things in perspective.

Picture This: Land Surveying Firm Sued for Inaccurate ALTA/NSPS Survey

The following scenario was adapted from an actual legal case: Clide Land Surveying, a land surveying firm in Colorado, faced a lawsuit for allegedly providing an inaccurate ALTA/NSPS survey of a large real property to a commercial developer, Tremant Development. The developer claimed that the sewer pipeline for which there was a previously existing easement was mapped incorrectly on the final ALTA/NSPS survey that Clide delivered.

The claim

While beginning construction on an in-ground pool as part of a major building project for a new hotel, Tremant’s crew hit a municipal sewer pipeline when digging, causing a substantial leak that required major repairs and significant money owed to the government in damages. Tremant Development claimed that the sewer line mapped on the original ALTA survey completed by Clide was off by several feet, placing direct blaim on the surverying firm for this costly error.

The defense

A veteran firm in the industry, Clide Land Surveying had taken care to document every step in the surveying process, down to the sewer line in question. The surveyors on that project had taken over 500 photos of the property, painstakingly capturing a photo at each notable point collected on the site, including pipelines and manholes.

What Clide hadn’t done was organize those photos. All 500+ images were stored in a single electronic folder along with other materials for the project. The owners knew they had the evidence they needed to defend against the lawsuit, but where was it exactly? They had no system in place to organize and locate job photos associated with a given project.

The Clide team essentially had to locate a needle in a haystack. The company poured all its manpower into non-billable hours sorting through photos and trying to match them with the site map. Luckily, after nearly a week a staffmember stumbled upon what they were looking for: photographs of the sewer markers and manhole associated with the pipeline, showing the same coordinates that were mapped on the final deliverable submitted to Tremant Development. It was just the proof they needed, just in time.

The outcome

Once Clide produced this evidence, the lawsuit quickly disappeared and it became clear that the error in pool placement stemmed from later designs developed by Tremant itself—Clide was in the clear. Still, the non-billable time spent searching through disorganized site photos had added up and Clide faced a financial loss of several thousand dollars, plus valuable time taken away from other projects.

While the owners of Clide Land Surveying were able to resolve the dispute before experiencing any legal ramifications, they were very fortunate to be able to locate the necessary site photos in time—and they came much too close for comfort. Subsequently, they spent additional company resources developing a streamlined photo management system as part of their project management workflow, carefully filing and annotating images to ensure easy retrieval in case they’re ever needed in the future.

Protecting Your Firm Against Similar Lawsuits

As this example clearly demonstrates, the process of visual record-keeping is crucial for any firm involved in land development, from the small, family-owned land surveying business to the international AE Design Consulting firm.

Global insurance company XL Catlin advises firms not to just document the surveying or construction process using site photos, but to have a clear system in place for managing and storing those photos: they state that best practice is to organize and store this evidence “contemporaneously, documenting and closing out the work as it is performed, and saving the information in an easy-to-access format that is agreed upon, consistent, and understood by all team members.” For the strongest evidence, they advise using photos that have a date, GPS coordinates, and a clear description or identification of the condition/point captured.

Morgan C. Smith, a construction law attorney and president/founder of Cogent Legal, has seen the outcome of construction litigation come down to photographic evidence time and again. He shares the following dilemma that he and his colleagues consistently face in these cases:

You are trying to prepare your case for mediation, and you have a hard drive full of photographs of the site from all different sources; it’s unclear what the photos show, where the scene is located, or even when the photograph was taken. You may have reams of images that look something like the example below [structural wood framing with a large area of what looks like black mold], without any context for understanding.

As Smith explains, “what is lacking is any point of reference, location or time” attached to the photographs, which makes it especially difficult when sorting through hundreds or thousands of site photos. This lack of context is most challenging in legal cases where “a solid photographic record is required of the exact condition of any item over time” – which is typically the case in construction defect or AE-related litigation or insurance claims.

To avoid such complications, Smith stresses that it’s important to have “a system in place that creates, annotates and organizes visuals” and can evolve with the project over time. This system should form part of your firm’s broader project management protocol.

New Technology Simplifies the Photo Management Process

By implementing a proper photographic survey system that attaches site photos to specific projects and stores them in a centralized location accessible by the entire team, AE firms can ensure that they’re properly safeguarded against construction litigation.

Zia Mapper’s Photo Manager offers an easy solution in a smartphone app that enables design professionals and developers to shoot, map, and annotate job photos from the field, simplifying the reporting and documentation process. For early access to this revolutionary app, click here to apply to be a beta tester.

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