The Claims-Free Architect

Client Demands

• Season 2 • Episode 5

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Many architects will tell you that some of their greatest professional rewards come from their relationships with their clients, working as a team toward a common goal. But occasionally, these relationships break down, and what starts out as professional affection deteriorates into outright animosity.

 It’s a fine idea to make friends of clients, and even clients of friends, but remember: business and friendship can sometimes make poor allies. 


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Client Demands

 Many architects will tell you that some of their greatest professional rewards come from their relationships with their clients, working as a team toward a common goal. But occasionally, these relationships break down, and what starts out as professional affection deteriorates into outright animosity.

It’s a fine idea to make friends of clients, and even clients of friends, but remember: business and friendship can sometimes make poor allies.

A prominent doctor, specializing in the physical rejuvenation of her aging clients, wanted to perform the same restorative magic on an old mansion, by converting it into a modern anti-aging clinic. A succession of architects failed to fulfill her desires, despite her constant interventions and threats, proving that, for architects at least, it’s sometimes healthier not to follow … “Doctors Orders.”

Celebrity doctor Rachel Kitchener purchased a recently renovated 19th century mansion in Ottawa’s Dorset Drive area. She planned to convert the historic building into a specialized clinic for those with the desire, and the financial resources, to remain forever young. Her elite clientele had every right to expect that their medical procedure and convalescence would take place in an elegant environment. And Dr. Kitchener intended to provide it – for an appropriately exorbitant fee.

Naturally, the doctor also required a private luxury apartment for herself on those occasions when her attendance at the clinic, or at social events, required her to be in the nation’s capital.

Although the house was historic, it was by no means antiquated. At some point, the original house had been updated to more modern standards, although no documents remained concerning the work, and even the identity of the Architect was unknown. We’ll call them Architect No. 1. A subsequent owner had engaged the Architect Alfred Aaron—Architect No. 2—to make further alterations. But when the work was 95% complete, Aaron retired to a sheep farm in Australia, leaving his colleague Billy Barxon—Architect No. 3—to finish the project.

Shortly after these renovations were completed, the house went on the market again, and Dr. Kitchener made an offer. But … before finalizing the purchase, she called Barxon, to satisfy herself that the recent renovations had indeed been completed and that the structure was sound. She respected his opinion so much that, as she later claimed, she took his assurances to be equivalent to a guarantee.

Dr. Kitchener quite liked Billy Barxon. His genteel manner and affluent background made him not only agreeable, but also the perfect professional ally for the kind of remodeling she had in mind. So, she engaged him to renovate the mansion again… to her standards.

The problem was that, as much as she trusted Barxon’s judgment, the Doctor was more of a commander than a collaborator. She set about instructing the Architect to move every wall, change every ceiling, lay down new floors, redesign bathrooms for hot tubs, replace the main stair etc., etc. 

What followed was a tragi-comic disaster that gave a whole new meaning to the phrase “Restoration drama.”

By the time the doctor started seeing patients in her new clinic, her affection for Barxon had worn thin. She prepared a list of typical small grievances: unlevel floors, ceiling lights off-centre, low water pressure, and so on. Dr. Kitchener knew enough about the law to know that errors and omissions could be blamed on Barxon, and if they predated his work, Aaron - Architect No. 2 - would be liable. One way or another, she would obtain perfection.

On legal advice, the Doctor made no move against the previous owner. There had been too many changes for that. So, the Architects were left to face her wrath alone, wherever they might be: in the Canadian capital or the Aussie Outback.

At the Doctor’s request, a meeting was held at the clinic, on a sunny but cold October day. Both the Pro-Demnity Claims Specialist and the Doctor were accompanied by legal counsel. Also in attendance were architect experts—one for the Doctor and one for Pro-Demnity.

Enter Architect No. 4, Frances Weldon, Dr. Kitchener’s architectural expert. Weldon presented a long and detailed indictment of the existing construction, sparing nothing. She had discovered beams that stopped short of their supports or were resting on non-load bearing walls, places where the duct installer had chopped away at structure creating the danger of imminent collapse, and other miscellaneous horrors, large and small. Furthermore, she pointed out, if the therapeutic hot tubs were ever filled and occupied, they would fall through the floor into the consulting rooms below, since they were neither fixed in place nor properly supported.

To gain some context, we toured the building … walking softly and carefully. Some of the problems were plain to see, and no reasonable defences came immediately to mind, except possibly putting the blame on the contractor, or on “hidden defects.” At the end of the visit, we departed through the lobby, with Dr. Kitchener warning us to be careful not to trip on the level change, where the parquet met the marble. This was an effective parting shot. We were all glad to get out of there.

But things got worse.

The Claims Specialist felt the need to obtain a quick engineering report on the safety of the structure. Was it really as bad as it appeared? If so, we needed to act immediately, to avert the disaster that Architect Weldon predicted; otherwise, further liability—possibly even injury—was inevitable. We immediately engaged an engineer known for forensic work. With the doctor’s permission, he inspected the house the very next day.

After spending a few unsettling hours in the house, the engineer called Pro-Demnity with the bad news. The lower chord of many roof trusses had been removed to provide the extra height required by some of the therapeutic equipment. The roof was now in imminent danger of implosion, and all it would take was a snowfall – not unheard of in Ottawa, in October. The clinic had to be vacated until the roof could be strengthened.

Pro-Demnity called Barxon, and Barxon, reluctantly, called Dr. Kitchener, who took the news with mixed emotions. She was exultant that her claims of negligence proved true; but angry at having to call off a reception to which several potential patients—including a Federal Minister and an Ambassador—had been invited. At least that’s what she told Barxon.

Dr. Kitchener begrudgingly moved herself and her recuperating, out-of-town patients to the Château Laurier.

And yet, there was more bad news.

The new main staircase—the clinic’s centrepiece—had been conceived as a solid oak grand ceremonial gesture, down which the hostess would sweep to greet guests in the lobby, and which guests might later ascend to view the art collection on the first floor gallery. The engineer reported that this staircase was fastened to the gallery edge beam by a few small nails—obviously intended for alignment purposes, awaiting the heavy-duty bolted connections that were required … but never installed. It was the engineer’s opinion that the staircase would quite possibly have collapsed under the weight of the doctor’s guests, crushing anyone underneath, and causing those on the stair to tumble to the floor below. The resultant injuries would be a liability lawyer’s bonanza—but a sadly ironic ending to an evening at a therapy clinic.

Meanwhile, Architect Weldon was working away at the growing defects list. Having become virtually a construction manager, she had become the de facto director of the works and was ordering tradespeople here and there to make whatever corrections she deemed necessary.

Then, the bills started coming in. To date, Dr. Kitchener had resisted any settlement discussions, and no claim had been filed, but this situation was about to change. She now instructed her lawyer to sue.

The Statement of Claim was specific on all counts. It alleged that the Architects owed a duty of care to Dr. Kitchener, even for the work done prior to the purchase. This the Doctor justified by saying that the Architects, Aaron and Barxon, had designed the renovations and controlled the construction process, knowing that their client intended to sell. They could not hide behind the fact that their only contractual obligation was with this previous owner, because he was not a knowledgeable party and had relied totally upon them.

Furthermore, hadn’t Dr. Kitchener contacted Barxon before the purchase was made, and hadn’t he warranted that the mansion was without fault?

The damages were not modest. To begin with, the defects were so numerous that the building was virtually a total reconstruction project…to Versailles standards. Then too, there were the additional expenses of the hotel accommodations, gastronomic necessities, car parking at the Château for the doctor and her patients, pain and suffering, lost income due to the interference with the Doctor’s medical practice, as well as the usual legal and expert witness expenses. It was all far in excess of insurance limits or any personal funds that might be available.

 

Since we couldn’t deny Barxon’s shortcomings, we considered a third-party action against the engineer—shifting the focus to his “failure to mitigate” the excessive remedies instigated by the architect Weldon. But we couldn’t really establish that he had actually done very much. It was a stretch to claim that he was “the structural consultant” just because he was asked for advice. In fact, he had visited the site only once to comment on a minor structural question—and had never even sent a bill. We never served the Third Party Claim.

At pre-trial discoveries Barxon was not at all nervous during his cross-examination.

The Claims Specialist and the defence counsel had carefully prepped him, stressing the need to a) answer only the questions asked, without elaboration; b) minimize his own role; and c) establish that Dr. Kitchener had constantly intervened, dealing directly with the contractor and trades. But Barxon could not resist being himself. He was gregarious, knowledgeable, well-read and well-spoken; and he had a natural tendency to be talkative. Not at all the “silent type,” he held forth on the Architect’s role throughout history, and presented himself as “the master builder,” hands on, managing every phase of the construction process, etc. This was hardly an appropriate position to take, given the number of major errors that he had made and could not account for. He wasn’t remotely concerned that he had produced so few construction drawings, pointing out that he had generated a plethora of design ideas—and he was on the site virtually every day. 

For the defence, Billy Barxon’s testimony was a disaster.

Dr. Kitchener, on the other hand, although frequently argumentative and sarcastic, was able to establish that she had relied on the professional advice of Barxon, both before the purchase and afterwards, during her renovations. The negligence of this advice spoke for itself. Our attempts to obtain any admissions useful to the defence were singularly unsuccessful. Dr. Kitchener, never losing sight of her objectives, provided us with a good look at her potential demeanour if the matter went to trial. It was not encouraging.

 After the discoveries, Dr. Kitchener continued to put on the pressure. She proved to be a resourceful opponent, not unskilled in psychological warfare. She phoned the claims Specialist frequently, keeping him informed of each new discovery of error and every ounce of suffering her patients were forced to endure. In vain, she was asked to please communicate through counsel. The claims Specialist could not bring himself to refuse the calls, out of politeness, possibly, but certainly due to the need to be available to a member of the public.

When settlement negotiations finally started up, both sides had a clear idea of how this conflict would end, and victory for the plaintiff seemed assured.

We had lost contact with Aaron who was half-way around the world and unlikely to be a contributor. But also, these were “tough times” for architects here in Canada, and Barxon was without substantial assets and had no excess insurance. Therefore, for the plaintiff, the Pro-Demnity coverage was the sole source of recompense.

After considerable huff and puff by Dr. Kitchener, whose counsel searched frantically for hidden assets that didn’t exist, the matter settled within insurance limits.

As fantastic as the elements in this true story may be, there was one more incredible event still to come. 

Just as Pro-Demnity had predicted, Dr. Kitchener was gearing up to attack Weldon, Architect No. 4, for a new list of defects. We opened another claim file. But Fate suddenly intervened. The doctor’s connections with Ottawa’s movers and shakers had paid off. She was dispatched, as Canadian Ambassador, to a small but wealthy UN member-nation that had only recently become a country. Her appointment, one imagines, closed many files, pending her eventual return.

As for Weldon, no claim was ever filed against her, and this seemed entirely just. We were all a little annoyed by her persistence in demonstrating the errors of Barxon, but she served her employer well, as many of us do.

Lessons Learned:

The moral of this complex chronicle is this: When it comes to rejuvenating your body, it’s best to follow your doctor’s orders. But for rejuvenating a house, even considering the errors made by these professionals, your advice as an architect is a much better bet, keeping the following lessons in mind:

Lesson No. 1: Know your client. Dr. Kitchener’s rejuvenation project seemed like an ideal commission. But Dr. Kitchener, it turned out, had an alarming history of litigation in several previous property dealings. 

Lesson No. 2: Remember that poor site review is a prime cause of claims. Inspect the work often and carefully, and see that your fees reflect the amount of work you put in. Barxon was on the job a lot, but as a “designer,” sometimes ignoring the nitty-gritty of how the beams sit on columns; how the structure is connected; how the floor levels line up; and whether 2x8 joists can support the 2000 lb. dead-weight of a fully loaded jacuzzi. 

•••••

It’s been said that we are all architects of our own fortune. But at times, the opposite is true, and we become, as this claim story is entitled: “the architects of our own mis-fortune”. This is certainly the case when a fastidious watchmaker hires a slightly less attentive architect, to design a home.

The Chevaliers had settled in the Ottawa Valley in the late eighties. Albert Chevalier, having apprenticed as a watchmaker in Geneva, had set up a prosperous watch repair and jewelry shop in Ottawa, in which he now also created fine precision instruments. Annette Chevalier was an imposing figure in her own right, with jewellery to match. She was convinced that her newly acquired lofty station in life entitled her to “only the best,” as she was fond of saying. It also allowed her to dispense with niceties. Neither she nor her husband were, what the French would call, sympathique.

Monsieur and Madame Chevalier had hired their friend, the architect Paul-Emile Rousseau, to design a house for them in the Vanier neighbourhood of the nation’s capital. They anticipated that the structure would live up to their expectations of careful attention to detail and precise craftsmanship.

As the construction neared completion, Rousseau issued a Certificate of Substantial Completion. However, to be certain that their standards had been met, the Chevaliers inspected the work themselves. Using a metre-long carpenter’s level, applied to floors, walls, ceilings, sills and countertops, Monsieur Chevalier observed that nothing that was supposed to be level, flat or vertical actually was. Countertops tilted slightly, windows were not quite square, brick coursing appeared to be irregular, etc., etc. The discrepancies were as much as a half-centimetre in some places, and in other places, errors were as large as two-to-three centimetres. In one case, the windows were misaligned by 6 millimetres. The list of deficiencies was distressingly endless.

Monsieur Chevalier had independently conferred with an eminent firm of engineers, regarding acceptable tolerances. Virtually everything failed to meet those standards. To a watchmaker, the discrepancies were inexcusable. The house was nothing less than a complete shambles. The contractor Bollard was immediately terminated.

Monsieur Chevalier then asked the Architect Rousseau to withdraw his Certificate of Substantial Completion and help them prepare a deficiency list. As the list grew, it became apparent that the house would have to be practically rebuilt. 

Rousseau, with reluctance, or so he later claimed, issued a letter with the intent to withdraw his Certificate of Substantial Completion and reduce the “amount completed” by $120,000. He then worked diligently with the owners and the owners’ lawyers to flesh out a case against Bollard Construction. His reports were unreservedly contemptuous of the quality and the workmanship, and entirely supportive of the watchmaker’s standards.

The subsequent lawsuit, “Bollard versus Mr. and Mrs. Chevalier,” played itself out through discoveries and trial.

The contractor’s defence was based on the fact that the certificates issued by the Architect Rousseau showed that he had achieved substantial completion. The list of deficiencies attached to the Substantial Completion Certificate was very short and contained no serious issues. Bollard believed that the work was not only acceptable, but had actually been accepted, and the standards now being applied, after the fact, were absurd and unattainable.

Unfortunately for him, Bollard lost the case. The weight of architectural and engineering testimony against him was too much to overcome, and he was unable to afford the legal and expert representation that his defence required. Ordered by the court to pay $280,000 in damages, plus costs, he simply shrugged his shoulders and gave up his corporation, whose assets did not cover court-awarded costs, let alone damages.

This fruitless litigation had lasted three years.

The Chevaliers now turned on their friend and Architect Rousseau, issuing a second Statement of Claim: “Mr. and Mrs. Chevalier versus Paul-Emile Rousseau, Architect.” Rousseau immediately filed a Notice of Claim with Pro-Demnity.

The Chevaliers’ claim listed many of the usual complaints: they knew nothing about architecture or construction, they had depended solely on their architect; and they had expected, deserved and had paid for the highest quality of workmanship, which they had not received. They also claimed that they had faced the extra costs of redoing work due to the Architect’s negligence, in addition to the bills for engineering inspections and reports that they had commissioned to back up their claims.

The Claims Specialist arranged a meeting with the Architect at the Pro-Demnity offices, with appointed counsel also in attendance.

The Architect admitted that he had been foolish and was perhaps responsible for his own misfortune. He had never really administered the contract. Instead, he was commissioned to perform “on call” site visits to look at matters that the owners thought important. All told, he had made no more than five or six visits, and for these, he had been paid by the hour. His total fee had amounted to less than two percent of the value of the construction contract.

Throughout the entire job, Rousseau said, the Chevaliers had acted as their own site inspectors. Both of them were constantly interfering and giving orders directly to the contractor’s crew. 

Rousseau had believed that Bollard’s work was of acceptable quality and had issued his Certificate of Substantial Completion on that basis. Nonetheless, when called upon to withdraw the Certificate—which was an act of doubtful legal authority—he had complied. Added to that, he had assisted his clients’ legal counsel in producing a report that found the work previously deemed acceptable, to be unacceptable, referring to it as “substantially below standard.” This same report was now being produced as evidence against Rousseau.

When asked how he could have reversed his position so thoroughly, without realizing that he was acting in bad faith, Rousseau replied that he had issued the certificate as the … Architect …; his report was an entirely separate matter, produced for … legal purposes …only. He never conceded the glaringly contradictory and untenable nature of his position.

Paul-Emile Rousseau was a quiet, deferential and exceptionally polite man who avoided confrontation of any kind. During interviews and discoveries, he never raised his voice or expressed any emotion other than, to the claims specialist, painful remorse for how he had been manipulated into creating this mess.

The defence had an obvious problem. The work couldn’t possibly be acceptable one moment and unacceptable the next. Had Rousseau been negligent in issuing the Certificate of Substantial Completion by failing to observe possibly unacceptable work? Or did his Certificate represent a competent professional opinion? In that case, he was guilty of aiding and abetting his client’s deception, which was to create a list of trumped-up deficiencies, to enrich himself at the contractor’s expense.

Rousseau’s reasonable course of action would have been to question the Chevaliers’ unreasonable standards and confront his client, before it got out of hand—which it definitely did, placing architect and insurer in an impossible position, from which no clean exit existed.

The pre-trial discoveries lasted several days, and served only to cement the parties into their initial positions, with the trial date fast approaching. 

A settlement meeting was arranged in the boardroom of Pro-Demnity’s lawyers. Attendees included the parties, their experts, their legal counsel, and the Claims Specialist.

Plaintiff’s counsel, invited to speak first, enumerated the many shortcomings that his clients had identified, and upon which their claim was based. Delivered in a low monotone, it failed to spark the degree of outrage that Annette Chevalier felt to be appropriate. To set matters straight, she interrupted constantly, using words like “horrible,” “appalling,” and “frightful.” Plaintiff’s counsel was clearly unsettled by his clients, whose interjections, nervous gestures and indignant stares were embarrassing and counterproductive. He soldiered on through his prepared text.

When our turn came, we pointed out that Mr. Rousseau had not been engaged to review the construction—and certainly not to the level of detail that Monsieur Chevalier’s standards demanded. His work was minimal, and he was paid accordingly. We rejected the contention that the Architect’s report, and that of the engineering consultants, represented anything like a true assessment of the work.

The Architect’s only mistake was to allow himself to assist in the case against the general contractor. We believed that the Chevaliers knew full well that their demands were exaggerated and unrealistic.

Much heat was generated, and the plaintiffs left the proceedings in a huff. The settlement meeting had settled nothing.

At a pre-trial hearing, the judge suggested that the parties compromise regarding acceptable standards of work required by the contract. Pro-Demnity supported this suggestion, offering to abide by the decision of any mutually acceptable, independent architect or engineer.

The Chevaliers refused. They believed—with good reason—that few consultants would recognize the high standards demanded by the prestige of their position. For them, the “ordinary standards of the industry” were insufficient.

The judge pointed out that the costs of the first trial with its worthless judgement, plus the costs of the action contemplated, would certainly exceed the value of the remedial work, many times over. The action, he said, was an absurdity. But the advice went unheeded. The Chevaliers were intent upon retribution and recompense, in a cause that was now consuming them. 

The matter dragged on for another year until the trial date loomed.

The Chevaliers’ lawyer was having a difficult time. Between his unreasonable clients and the ridiculous nature of much of the case, he lost his composure on several occasions. However, his strained relations with the clients and his growing desperation to get away from them must have eroded the Chevaliers’ resolve. In a final flurry of activity, he persuaded them to settle.

In truth, we had no case we could be proud of, but the usual sparring succeeded in reducing the clients’ demands to an offer that could be accepted. The settlement amounted to a fraction of the total costs involved in the action, and we paid out less than our minimum costs would have been, had the matter proceeded to trial. 

The clients had anticipated an easy score against the contractor, but when this failed, they had no qualms about going after their “friend” the Architect. Thanks to a vigorous defence, the Architect was not an easy target.

As a postscript, we don’t believe that much remedial work was done with the settlement money. It would probably have amounted to less than the Chevaliers’ legal fees. And, in any event, there was very little wrong with the house.

Lessons Learned:

In this story, there was no clear victory. The claim was ill-conceived from the start, based on poor behaviour by both Architect and clients. And it cost the parties dearly, in money and dignity. The only winners are those of us who stand to learn valuable lessons from this chain of avoidable misfortunes and blunders. 

Lesson No. 1: Seek advice from Pro-Demnity early enough for it to be useful—and before you take well-intentioned steps that only worsen the situation.

Lesson No 2: Remember that your professional obligations require you to be unbiased and prudent when dealing with a disagreement between client and contractor. Never collude with one against the other, especially when your actions may be seen as unprofessional or even incriminating. This architect showed extreme lack of judgement in agreeing to assist in an unreasonable claim and find workmanship problems that did not by normal standards exist.

Lesson No. 3: Believing that your responsibility to observe errors onsite is dictated by the amount you are being paid will have little sway in courts of law. This architect wrongly believed that “periodic” visits meant “casual” visits, and that he didn’t have to look carefully at workmanship. This is a common but incorrect assumption. But in addition to working for a small fee, this architect made the additional error of failing to define the scope of work in a written agreement. 

Lesson No. 4: Certificates are binding documents that are meant to accurately reflect the work that has been performed and cannot be extended and withdrawn at will. This architect was prepared to issue certificates on demand after only cursory “inspection” of the work, including the final certificate. His standard of “general conformity” bore no relation to the ridiculously high bar set by his clients. Furthermore, he was naïve in not realizing that his “report” might be used against him.

Lesson No. 5: Most important: Be aware of your clients’ expectations. If they are inflated or unrealistic, realign them—otherwise, prepare yourself for a bumpy ride. This architect totally misjudged his clients, not foreseeing that their irrational and obsessive behavior would turn against him, just as they had turned against the unfortunate contractor.