How Pool Builders Can Avoid Being Sued

Interview by Eric Herman

Through the past quarter-century, Skip Phillips – owner of Questar Pools in Escondido, Calif., and one of the founders of The Genesis 3 Design Group – has served as an expert witness in more than 300 lawsuits involving pool construction. He estimates that 60% of the time he has testified on behalf of pool builders and 40% on behalf of homeowners.

Phillips says that as an expert witness, credibility is everything. “If you start maneuvering your position to the advantage of one side or the other just because of who hired you,” he explains, “at some point it comes home to roost. That’s especially true in really big cases, where the attorneys take the time to do discovery on your testimony in prior cases.”

Recently, we asked Phillips what advice he would give to other pool professionals to help them reduce their risk of facing litigation.

When you look back at your experience as an expert witness, what stands out as the main reason pool builders wind up in court?

I think in the majority of cases the problem is either a lack of communication or miscommunication. Those are the big issues. It often starts when builders or their salespeople initially misrepresent the pool-building process or the outcome. They tell homeowners that their lawn won’t be touched by tractors, that the driveway won’t be affected in any way by dump trucks, and so forth.

How do you avoid that problem in your own business?

We hold a jobsite meeting where we, the subs who are relevant to the project and the homeowner all gather onsite before a single shovel even goes in the ground. The most important thing is to be open and candid about how the work will proceed. It’s a great opportunity to cover the questions and complications that may arise – instead of just having the excavator show up at the home with his tractor idling outside, asking the homeowner where the pool is supposed to go.

Describe how a typical meeting might go.

We bring along a complete set of plans – both structural and architectural – and display them while we discuss the project. Also, we introduce the homeowner to everyone: “This is who will be digging the pool. This is who will be putting the steel in,” and so forth. We reconfirm with the excavator what we’re thinking as far as access goes, and explore if there might be an even better way to reach the site. In short, we reconfirm all the major details about what’s going to happen.

By the way, I should emphasize that the need for good communication continues throughout the entire project. I’ll give you an example: Homeowners want to think that your attention is completely focused on their pool, that their project is the only one you’re concerned with. So the worst thing you can say is, “Sorry, I can’t make it over to your place; I’m busy with other jobs.” That’s just like slapping a homeowner in the face.

Once you’ve gone over everything with homeowners, do you have them sign something?

That can be pretty intimidating. Instead, I send them a follow-up letter that says something along these lines: “Consistent with our jobsite meeting on May 4, we’re confirming your excavation date of May 9. The excavator will be at your house at approximately 7:30, and we’ll arrive about 30 minutes after he’s off-loaded the tractor to reconfirm the layout with him and with you.” And so forth.

Why doesn’t every builder hold the kind of meeting you’re talking about?

Because it takes time. A lot of builders think it’s a waste of their time – when in fact, it actually could save them an enormous amount of time and expense in the long run. It’s a lot better to find and correct an omission in your plans (or something that’s there but won’t work) during the meeting rather than having to fix it after the fact.

Of course, if you’re trying to build 300 pools a year with four people, you really might not have time to hold these meetings – but in my opinion you shouldn’t be building that many pools in the first place.

We live in a highly litigious society. Even with the best communication, aren’t there homeowners who hear that they want to or deliberately lie?

The communication I’m talking about – whether between you and the subs or between you and the homeowner – doesn’t cure all the problems. It’s not a panacea, but there’s no doubt that it helps enormously.

It’s true that there are a small number of cases where pool builders deal with homeowners who are never going to be happy no matter what, and who are intent on suing anyone and everyone who works for them. But that’s a relatively small percentage.

Besides the communication issue, what other problems lead to lawsuits?

Unfortunately, another big problem I’ve seen is the inability of some pool builders to properly draw a set of plans. So the homeowner winds up claiming – perhaps rightly – that he didn’t reasonably know what he was getting.

Part of a pool builder’s responsibility as a contractor is to be able to make an accurate rendering, to scale, of what’s going in. If you look at the pool industry in this country, you’ll see that it’s not at all uncommon for builders to present a single page with a hand-scribbled, not-to-scale sketch of a pool, with no elevations, no sections and no accurate dimensions.

Then the drawing gets faxed to the excavator, and the fax machine further distorts it. With this single sheet of paper in hand, the excavator starts digging the wrong pool in the wrong location – and everything kind of goes downhill from there.

You’d think that in this age of computers and design software, people would not be scribbling plans on a legal pad.

But even when you use a computer to draw your plans, the old adage “garbage in, garbage out” still holds true. If you don’t put in the right information, you’re not going to wind up with a good outcome. You can’t assume that a guy who is generating plans on his computer knows what he’s doing. Some pool builders who tout the fact that they’ve been in business for 30 years have been making the same mistakes for 30 years.

Do improper construction techniques and structural engineering play a role here?

Absolutely. You can have the best communication skills and the best plans, but if you don’t follow the fundamentals of building a pool the right way, you could still wind up in a legal jam. For example, if the structural engineering isn’t appropriate for the particular site conditions or the design, don’t be shocked if you wind up being sued.

What about soil conditions?

If you’re a professional in this field – which you’re supposed to be as a pool builder – you need to make sure about the soil conditions. That means you need to get a geologic study done. It doesn’t mean you have to pay for it; the homeowner is going to pay for it. But you do need one.

Now, there may be some applications where it’s a standard backyard in a subdivision, and there’s already a report on the as-built conditions – and the report says the soils are fine. In cases like that, a redundant soils report may not be needed. But in that situation, you’d better at least read the existing soils report.

I was a witness in a case where a well-respected pool builder built a pool in a development, and the pool wound up dropping because of subterranean voids. If the builder simply had read the existing soils report for the development – which he did not do – he would have known that it said you cannot do a backyard pool in the development using standard engineering.

Don’t some builders assume that because they once successfully built a pool a few blocks away, the new project they’re working on will be fine?

Yes, and that’s not necessarily true. At the very least, you should have the homeowner pay for a bottom inspection. Why? You could have a situation where your excavator left some poorly compacted stuff at the bottom. In that case, even a very small movement that results might create a structural failure. Having the bottom inspection could bail you out from facing a big civil case.

What’s your final piece of advice?

Pool builders have a fundamental responsibility to execute well what they sell, and to meet or exceed their clients’ minimum expectations. Notice I didn’t say minimum industry standards. We have some so-called standards, but all they show is how bad you can get before you’re no longer defensible legally. Pool builders need to aim higher than that.

For more informtation, go to www.questarpools.com.