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6 Feb ’14
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Late Wednesday (9/24/2014) I terminated my contractor. I will attempt to document some of the more salient points while balancing that with what I disclose for potential legal reasons.
I had just returned from a trip into town to get some food. I went to Subway for myself. I offered to pickup something for each of the 2 men working that day. A snickers bar for the owner of the excavation company, and a 6 inch turkey sub for the man operating the excavator. I sat and had my food while watching. I had returned to find the excavator operator had built himself a mound of dirt to elevate his eye level over the edge of the dump truck. While I grasped this approach without it being explained to me, they had already been given prior instructions that the pond area was to be cleared of debris and mounds of dirt obstructing my ability to properly view, layout, and define. Before leaving I had the excavator dig down along what is to become the eastern edge of the pond about 2 feet deep. There was a long pile of surface dirt which I instructed the excavator operator to consolidate and load the dump truck to bring to the landfill area at the south side of my property. I suspected there were just about the correct number of truckloads to occupy them while I was gone. I had expected to return, eat, and be able to begin directing definition of the south edge of the pond. Lastly, I instructed the excavator operator to stay clear of the southern edge because that was to be the beach area and would require that I direct him more closely than for the other areas.
The excavator operator was not only sitting on a giant mound of dirt which should not have been there, he was still digging away making the pile larger at a pace faster than it could be trucked away. I was later told that this was because he kept hitting rocks. The excavator was not sitting on top a pile of rocks. The dump truck was not hauling away load after load of rocks. He had gone dig happy and had disregarded my clear directions. At what they charge per hour, I obviously had to get him back to doing what I had directed not more than an hour earlier.
I politely informed him to not dig any deeper and to get rid of the mound of dirt he was perched on. I explained that the objective was not to send dirt to the landfill, that creating the landfill was only incidental and only intended for the unsuitable "waste dirt" from the top layers. The mound he was perched upon was a mix of "waste dirt" and the higher quality fill dirt. It was then that the excavator operator responded by lecturing me how I was going to waste away all my good clay fill and that he was being efficient by churning up the soil loading the dump truck with loose dirt, but if I preferred he load up the dirt from the mound that it was just fine by him if he just sat there between loads doing nothing. He then quite dramatically sat back in his seat, crossed his arms for a moment and then began reaching for the door of the excavator to close it on me.
I told him he did not need to sit idle between truckloads. That he could consolidate the pile in preparation for each time the dump truck returned. The operator then complained to me that he felt like he had been working while not knowing what was expected of him. What the big picture was.
That statement was rife with the irony of the marking flags I had so carefully and judiciously placed marking every feature and boundary of the pond area needing to be defined. Earlier that day I had walked the entire property including the pond area with the owner of the excavation company reviewing the list I had created for the coming phase of work that needed to happen. I explained each area in detail including the pond. I would have happily included the excavator operator in the walk through, but he is an older man and has difficulty walking. At any point, had the excavator operator expressed his frustration about wanting to know more about the big picture, he could have asked me or his colleague. Instead, he had remained silent on the issue falling back on his default comment that it was my money and he'd do it anyway I like.
I told him that I would review everything with him, but that I needed the dirt mound gone before I could do so. It was left at that and at this point the dump truck had returned for the next load. I got into the cab of the dump truck to speak with the contractor. He was on his cellphone and I waited patiently without interruption for him to finish the call. He finished as we reached the south side of my property and I informed him that I needed to talk to him and that I would need his undivided attention and that I would wait till he dumped the load. When he dumped the load, I told him to seat the dump bed and shutoff the engine. I informed him that I had been polite with everyone throughout the job, yet that his excavator operator had been inappropriately rude. That I did not wish for it, but if it happened again that I would need to fire them. He acknowledged my concern and assured me there would be no further problem.
Upon returning to the north side of the property, while the dump truck was maneuvering to back up into the pond area, I fetched some marking chalk and drew a line between the marking flags to represent the waterline of the beach area and went to discuss it with the excavator operator. Right away I was informed that the excavator operator would finish out the day but would not be returning because he felt he "could just not please me". I looked at the time. It was 5:50 pm. I replied, "Okay. In that case, its 10 minutes to 6, you can just stop at 6." He looked surprised.
It was clear to me that the excavator operator had been carrying a chip on his shoulder for at least several days. I don't know why he thought I would want a man operating a 25,000 pound excavation machine with an axe to grind to continue working on my property.
6 Feb ’14
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(Continued)
I went and flagged down the dump truck as it was backing up and informed the contractor of what had just occurred. The contractor had not even had the opportunity to talk with his operator yet and I found myself trying to decide how to handle the situation.
The process of finding a contractor is long and frustrating. The remaining items on my list were expected to only take another 2 days. I was uncertain if the guy I had hired would be able to continue without his excavator operator. I did not want to make any rash decisions without talking the situation over with the contractor and thinking it through.
The contractor went to speak with his excavator operator. I followed and allowed them to talk. Once again the excavator operator felt the need to speak up to vent and rant at me in his good 'ol boy southern manner. I am not a person who is quick to anger, or inclined towards entering into verbal sparring. I could feel myself faintly growing angry, but my thoughts were already racing trying to weigh my available pros and cons. The operator commenced in a combination of bragging on himself and trying to accuse me of every perceived fault he could think up. I knew if I allowed myself to interrupt that it would just become an unproductive shouting match and while enduring his temper tantrum was not pleasant, he was simultaneously providing information that could prove useful in the event of filing a lawsuit against them.
He told me he had never before walked off a job and that he was not one to hold a grudge. That he took no issue with me as a person but that he felt that there was just no pleasing me and that he could not work for me. That he likes to be given an overview at the start and then to be left alone to do as he saw fit for the job. That when he's working, he doesn't stop and his customers get their money's worth. That he's worked for many large companies, done local government contracting, and once ran a company with 14 machines. That he's one of the top operators in the country and that I had been lucky to have him. That I had no sort of plan what so ever and had no idea what I was doing or talking about. That the way I had instructed them to undercut the driveway, build the stream crossing, do the pond without a levy, and prepare the foundation were all wrong and that in his entire career, no one had ever once asked him to do the sorts of things I had asked of him. That he had come to clear my right-of-way and that he had been lying to one of his regular customers to stall them for 3 weeks now. That I should have gotten round pipe (not arch) and built the bridge up taller and I would have had no problems with the driveway being too steep. That if I had done the driveway differently that I would not have to mess with that grid product I decided to use. That digging up the foundation area and turning up rocks and removing roots was undoing perfectly good compaction that was already better than anything that could be done with a machine...
It was about here where the contractor chimed in that when his cousin (who lives very close by to my property) had paid a visit (uninvited by me and ignoring trespassing signs with no notice from the contractor) that he thought what I did in the foundation area was crazy. This, after I had greeted him kindly as a nearby neighbor-to-be. I had not really processed that part until a while after.
The excavator operator continued his rant where he left off telling me that I should have known before he started where I wanted him to put the pile of trees from the pond instead of later moving them to the pile for the main clearing. That I should have known where I wanted the pile for the 2nd landfill area instead of later moving them.
Finally the excavator operator talked himself to a stopping point. All the while, the contractor had stood by listening, not interrupting as a professional might do. He was too busy nodding in agreement. I had not really processed that part either until a while after.
The contractor resumed speaking to the excavator operator telling him there was only 2 days more of work and began trying to review what he could recall of the list we had discussed earlier. I handed the list to the contractor and they discussed it. The excavator operator exclaimed that he would work for just 2 more days, that he would do it to help out the contractor. With that, the excavator operator went home leaving me to speak to the contractor alone.
It was determined that the contractor's own excavation machine was tied up and that there could be up to a month delay before work could resume without the help of his subcontractor. I explained to my contractor that I felt very uneasy about continuing with the subcontractor. I tried to weigh that against completing the remaining list.
The contractor assured me that he would manage his subcontractor much more closely and then warned me that if the current state of work was left to sit that rain could severely undermine site conditions and damage the foundation area and the stream crossing without at least performing certain work.
I thought to myself that this sounded like a hard sell pressure tactic but as a precaution, decided to go along with it until I could think matters through and possibly do some research to try to determine if there was any truth to the warnings. As long as I decided before they returned the following day, I would still have the option of firing them.
I continued the conversation with the contractor until a game plan of returning the following day with the subcontractor to complete the areas at the alleged risk from rain. He said he would return at 7:30 am. We said good night, and he left.
I decided to go to visit with a friend in Cabot to vent to and discuss possible social ramifications within the circle of people I know connected to her and to the contractor if I file a lawsuit against the contractor. She assured me not to worry about any social backlash and said she would sue also if in my position.
6 Feb ’14
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(Continued)
The contractor messed up the culvert install and stream crossing. Badly. I was prepared to fire them and sue then but was convinced by family not to in the interest of preserving certain social connections in the area and tied to the contractor and friends in Cabot. I was told I would have the financial backing to cover it if necessary. I was not comfortable with either option and while I did not like the thought of letting the contractor off so easy, nothing had been said yet which left the option of trying to preserve the various potential, and established social connections. I allowed myself to be swayed towards preserving things.
Talking to my friend in Cabot helped a lot. Not only in getting to vent, but in putting the concerns of established connections at ease. My emotions were filtering through at this point and I decided not only did I not have any interest in preserving the potential connections, I had no intention of establishing myself as a pushover by doing nothing. Being nice, polite, and civil are not to be confused with being a doormat. That is not a precedent I have any intention of allowing to occur. I realized that my usual instinct to individuate had worked against me causing my focus on the subcontractor's actions to blind me to the simple fact that all actions of the subcontractor were the responsibility of the contractor. That they cannot and should not be individuated, that they are effectively one and the same. I decided that regardless of any alleged rain damage, that the contractor/subcontractor had crossed a line and that should any alleged rain damage occur, that the contractor was liable as a consequence of their own actions.
I was satisfied and resolute now. I would fire the contractor. I sent a text message informing them and attempted to call as well, but only reached a full voice mail box.
The following morning, the contractor sent a text message reply to acknowledge and commenting that he did not understand.
6 Feb ’14
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(Continued)
That night I went to bed in a rotten mood which persisted into much of the following day (yesterday). Fortuitously I remembered that a social club I sometimes attend events by was having a special night with a stand up comic. If not for terminating the contractor I could not have attended... because I terminated the contractor, I was able to go after all and it was exactly the break I needed.
I now have a very daunting aftermath ahead of me with many concerns to juggle. It will be a long and difficult road. Yet, I can say I feel better having decided to terminate the contractor and proceed with a lawsuit.
15 Feb ’12
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I don't know man, from reading that, it sounds like a lawsuit will be difficult, it doesn't sound like any damage has happened yet and if there is, he will just say that the reason that there is, is because they were fired before they had a chance to finish the work. Do you have a contracted price? Or are you just doing time and material?
the operator sounds exactly like every operator I have come across though, generally just pissed off at the world
good luck, hope everything works out for you, do have any leads on any other operators that can finish it?
6 Feb ’14
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KVR said
I don't know man, from reading that, it sounds like a lawsuit will be difficult, it doesn't sound like any damage has happened yet and if there is, he will just say that the reason that there is, is because they were fired before they had a chance to finish the work. Do you have a contracted price? Or are you just doing time and material?
The basis for the lawsuit is based upon the faulty job done on the culvert install and the stream crossing. I have ample evidence of the exhaustive research I did beforehand on correct culvert install. On the initial visit with the contractor I discussed infilling in lifts (layers) following specifications and using a plate compactor. I questioned him on his experience installing concrete in particular. He claimed having adequate experience which he said mostly had come during local governmental contracts. He agreed that he would follow the specifications prescribed concerning lifts and compaction. He accepted the job.
Then he just pushed dirt over top insisting the weight of a bulldozer was better compaction than any "whacker-packer" despite my objections. He also ignored the slope I specified. The list is longer but those are some of the salient bits.
He can try to claim that I never objected or never specified lifts, but the proof of my research will support me talking to him about it. Heck, while researching, I was driving people crazy because I wouldn't stop talking about it. It doesn't follow that I would suddenly go quiet during my meeting with the contractor. Furthermore, lifts and compaction are standard practice no matter what type of culvert it is. In fact, the other types lacking structural support of their own require proper technique even more than concrete pipe. He can try to lie, but he did such a bad job, I think there is too much weighted against him.
I have pictures and video of much of the install and handling as well.
6 Feb ’14
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KVR said
do have any leads on any other operators that can finish it?
I do, but I also have some additional ideas on how to approach things. It will take some time, and I first must give some initial attention to pursuing the lawsuit. Lots to do and in multiple directions.
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