Transcript of Episode 17
David Supple: All right, brother. We’re going to roll. All right. This is the Design Build Show. I’m here with my good friend, Thomas Messier. Messier not Messier. I grew up with Mr. Messier from the New York Rangers so it messes me up a little bit.
Tom Messier: That’s okay.
David Supple: Do you prefer Tom?
Tom Messier: I do.
David Supple: Okay, good Tom Messier. And Tom is my insurance agent. He is amazing, incredible. He is like a freaking … He’s just the qualities you would want in somebody to make you feel safe, provided for, and cared for is like this guy has it. And in … He specializes in construction industry. Is that what you would say?
Tom Messier: It’s all I do is work with small and mid-size contractors. Actually I was inducted in 2017 to the Greater Boston Home Builders Association.
David Supple: Hall of Fame or what?
Tom Messier: Hall of Fame.
David Supple: Hey, man look that’s cool.
Tom Messier: I am a member of the Greater Boston Home Builders Association Hall of Fame.
David Supple: Wow. Yeah, you donated quite a bit of your time to that organization. To NARI which I’m more active in-
Tom Messier: But yeah. This is basically if you’re not a contractor, you’re not one of our clients and that’s all I’ve done for close to about 35 years.
David Supple: Yeah, and like reputable contractors. I would add that disclaimer too, right? Because you don’t … You do the legit stuff. You’re not going to give somebody bullshit insurance?
Tom Messier: Right. We have minimums that we let our contractors, yeah. If you don’t want real insurance, you’re not my client.
David Supple: Anyway, this guy is the real deal. How many years in the business?
Tom Messier: I started doing this in 1983 so 36 years.
David Supple: Okay. And you specialize in construction. And I’m having Tom on the show as my insurance and litigation expert. Is insurance, is that valid? Like do you partake in the … Like insurance touches litigation, right? Those things kind of-
Tom Messier: Insurance, yeah. And oftentimes in litigation, typically your insurance is paying for your defense with your litigation.
David Supple: Yeah, right.
Tom Messier: That’s what we do. There can be litigation that we’re not involved in because we don’t get involved in a contractual dispute. But if there’s damage or somebody gets hurt because of your job, that’s what your insurance is there for.
David Supple: What would be a contractual dispute that’s separate from?
Tom Messier: Oh we’ve had people that … There’s a fight over you said you build my house for $100,000 and you build me a $120,000 and I don’t want to pay you the last 20.
David Supple: Ah, right. It’s more like a civil deal.
Tom Messier: Yeah, it’s a contract … It doesn’t … It’s not … If the roof doesn’t work and it leaks, that’s our job. If you just … If you’ve got an issue over the price, that’s not our job.
David Supple: Yeah which is … That area where there is damage or somebody gets hurt, more so like the end product, there’s a problem with it. And that’s more why I’m having on as an expert who’s dealt with a lot of that. And it’s very difficult to find statistics on this. I’ve looked because my theory is that design build increases accountability. And as a direct result using common sense, you decrease liability for the ambiguity of where that liability lies. If there’s an issue on my job, ain’t nobody else to point the finger at. And that can be humbling, but I actually love it because you learn from it and you’re accountable for it and you can do something about it.
David Supple: Whereas if you have a separate architect and a separate contractor, unless those individuals or entities are unique, which they are, they do exist. But the way it’s set up is more to be adversarial. And so you have then … That’s where … That triggers the insurance. And the litigation. But it’s hard to find these statistics. That’s something I want to point out because you can have … A lot of things get settled out of court and so there’s no record of it, right? It’s just difficult to find. But just using common sense. Is that theory I have correct?
Tom Messier: I think it’s, for the most part, correct, yes.
David Supple: Okay.
Tom Messier: If your design is part of the construction team and everybody’s on the same page from day one. At least, there’ll be significantly fewer disputes.
David Supple: Yeah. I mean there can be disputes. Like I have had one claim in my history and it was for work we did and, a while ago. A subcontractor. I had an issue. Kind of as time went on when the job was closed out. And I actually filed the claim myself because I wanted to take responsibility for that. But there was no … There wasn’t an architect involved where you had to look at the plans. And were the plans executed properly? And there’s this split … There’s this split of responsibilities wherein the client is left in the middle. Do a lot of the claims you have and deal with involve separate entities with architect and builder?
Tom Messier: Quite often we see disputes where an architect has designed it this way. The homeowner wants it this way. And the contractor built it the third way because everybody’s not talking.
David Supple: [crosstalk] doesn’t understand. The client doesn’t understand the plans.
Tom Messier: They don’t understand, yeah. So sometimes things get lost in the interpretation. There’s other times where an architect puts something on paper and the contractor will build it exactly the way the architect designed it. And then it doesn’t work.
David Supple: Give me an example of that.
Tom Messier: I’ll give you an example. It’s not a residential example. But we were … One of my clients is a site contractor and was doing some in athletic fields. And they were hired to put the footings in for a big scoreboard at a high school athletic field.
David Supple: The goal post?
Tom Messier: Well, it was actually the scoreboard.
David Supple: Oh, the scoreboard. Okay, I dig it. Cool.
Tom Messier: The scoreboard. And they put the footings in and then about a week later, the contractor who was putting the … Building out the scoreboard called and said, “These footings are in the wrong place.” And he said, “They’re exactly where the architect put them. And they’re oriented exactly the way the architect had them.” And here’s the blueprints. And here’s the plans. And here’s the footings. And that was … Everything was exactly the way the architect had drawn it. The problem was from the field and from the stands, you would not be able to see the scoreboard.
David Supple: It was tilted or slanted?
Tom Messier: Yeah, it was oriented the wrong way. And the architect, his answer was, “Well, you’re the contractor, you should have known when you went to put them in it wasn’t going to work.” Well-
David Supple: It’s not the way it’s set up.
Tom Messier: I did exactly what I was told to do.
David Supple: Yeah.
Tom Messier: And it was … The plans are there, this is how high it’s going to be. This is the direction it’s going to be and it was exactly the way it was drawn on paper.
David Supple: But then you got pulled into that because there was a … Was there a claim?
Tom Messier: The wasn’t a … What you asked about contractual … That’s really a contractual issue because I did exactly what you told me to do.
David Supple: So there is no like default they can claim there? They’re just being like common sense, you should have observed or what have you?
Tom Messier: Yeah.
David Supple: Yeah.
Tom Messier: Now, I think architects, in the end, are going to have a real problem.
David Supple: Yeah, right.
Tom Messier: Now that’s not huge because-
David Supple: A couple of-
Tom Messier: It’s only a couple of footings. But I had another case where a big subdivision.
David Supple: The architect might have a claim going on right now.
Tom Messier: Oh yeah, that’s going to bean architect problem.
David Supple: Yeah, yeah.
Tom Messier: I had a big subdivision. It was … And I don’t remember what town it was in, but there was about 80 lots in this subdivision. And the engineer came out, laid out all the roads. Client came in, roughed the roads in.
David Supple: Who was a side contractor?
Tom Messier: Put the rough pavement down. Built the first half dozen houses. One of the people who bought one of the houses wanted to refinance their house. And the refinance company required a survey. And when the new architect, or the new engineer came on and did the survey, the house wasn’t where they thought it was. And all the lots, everything that the first engineer had laid out none of it matched-
David Supple: The deed.
Tom Messier: Well, none of it matched the subdivision plan that was approved by the town.
David Supple: Oh wow.
Tom Messier: And it was a real problem. There was … I want to say there was about 80 lots and they could either rip the roads up and start over again or they had to redesign the lots the fit the roads that were in. They end up losing like five or six lots.
David Supple: Wow, because they redesigned it.
Tom Messier: Which at $150,000 bucks a lot, changes the financial impact of that entire project.
David Supple: Right, yeah.
Tom Messier: And again that, to me, that engineer had a real problem.
David Supple: Yeah.
Tom Messier: Because he was the guy that designed it. Said this is where the roads go.
David Supple: Right. How would it be different with this scoreboard situation or the subdivision if that was one entity? If it was not separated?
Tom Messier: Well, I think in the scoreboard situation, you’re the contractor. You know what you want to do. You know that the purpose of the scoreboard is so that the people from the stands can see it. Then doesn’t it make sense that you’re going to make sure that it’s designed so that it can be seen.
David Supple: Right. As opposed to, what was the mentality he had?
Tom Messier: I don’t know why the engineer did it the way he did it?
David Supple: No, the builder? I mean the contractor.
Tom Messier: Well, the contractor, he did it exactly what-
David Supple: He was just executing. That was his job, right?
Tom Messier: Here’s the blueprint. Here’s the … This is where these are. This is the way they’re oriented.
David Supple: He’s just looking at that, his scope, right? I’m must doing my job. He’s not thinking outside like I’m responsible for-
Tom Messier: And even if he was. Even if as he’s putting it in, he’s going, “Boy this doesn’t look right to me.”
David Supple: He would have just been saving the architect’s ass.
Tom Messier: Well, and if he called the architect and said, “I don’t think this is right.” And the architect says, “No, that’s the way I want you to do it.”
David Supple: Yeah.
Tom Messier: “Do it … Here those are the plans. Do it per the plans.” “Well, okay.” Again, I think it goes back to this is what my end result is. How do we get to that end result? And make it the way we want it?
David Supple: Yeah. I mean, and go ahead.
Tom Messier: On a single … On a home, on a residence. Being a homeowner myself. This is my dream. This is what I want my house to look like. Now what are my options to get it there. And I think that’s why working with a contractor that had his own design team. I think you can-
David Supple: Or an architect that has his own contracting team.
Tom Messier: Yeah.
David Supple: I mean it’s design build. So it’s really it’s bringing … The whole deal about it. Like you get into this architect led design build now and contractor led design build. It’s like getting away from the whole thing where it’s like, “We bringing it back to one baby.”
Tom Messier: These are my dreams. Get me to my dreams. Not … So somebody’s-
David Supple: Yeah. Be responsible for my vision. Carrying it through. Conception to creating, yeah.
Tom Messier: Overseeing that whole thing, yeah.
David Supple: Amen, brother. And I’m thinking like in the subdivision, putting myself in that position. So the engineer could have been a design build team and he just messed that up. And so, mistakes … It’s not like mistakes don’t happen with my company. We’re not perfect. But it fucking simplifies who the hell is going to handle it. I’ll teel you that right away. Like it simplifies who’s handling it. And from a client’s … Like that was a development and so that was their own deal. Like the developer is the client.
David Supple: But when you’re a homeowner, do you have any stories of a homeowner being stuck in the middle of a discrepancy. I know you do, man. You got stories out the yin yang.
Tom Messier: I can … I mean there’s lots of stories about … Well, I have one … I can do this … One of my clients, the contractor, he was hired to put a big addition on a house. And the people didn’t want any supports or columns in their room. But they wanted a family room that was, I want to say, 30 by 40. So it was a big space. And the master bedroom was above it. They built the room out and everything was done to code.
David Supple: Separate architect?
Tom Messier: Separate architect. Everything was done to code. Everything was done to the plans. I’m not an engineer. But there’s this thing called-
David Supple: Deflection.
Tom Messier: Deflection or refraction or something. When you were in the bedroom above that big room, and you were walking across that floor, it was like you were on a trampoline. Because it bounced. There was a lot of give in that floor. And the people moved in. They said we can’t live with this. And ceiling in the big room underneath kept cracking. And the contractor said, “I built it to the plans.” And the architect said, “It’s designed to code.” Well code is the minimum.
David Supple: Right.
Tom Messier: Code doesn’t mean it’s done right. Code is the minimum.
David Supple: Right.
Tom Messier: And they needed stiffer beams. And they just needed more support. But was it possible to do? Absolutely. And the way it was, it would have worked.
David Supple: But they would have just had a trampoline on their-
Tom Messier: It was fine. There was nothing wrong with it. Nobody was going to get hurt. And the building’s not going to fall down. It just wasn’t real comfortable.
David Supple: Yeah, right. So it just makes the … It gives you ambiguity, right?
Tom Messier: Right.
David Supple: And it’s set up that way because the architect, when it is separate, is not responsible for the execution and there is … That’s where I came from. And there is a bit of this cover your ass mentality. In terms of just wrongs. Yeah. Can you speak to that?
Tom Messier: I think there’s a lot of … Well, that’s what I did. Whether it’s the contractor that says, “I did it to the … I built exactly what was drawn.” Or the architect saying, “Well, it’s designed to code.” Just because you did that doesn’t mean it’s the way … It’s the best way to do it. And remember, code is a minimum. That’s not the best way to build. Code is a minimum.
David Supple: Right. I mean it just skirts the issue of just being … Because one is not responsible. It’s like if I’m designing something and there’s things in the field that are uncovered and there might be things that need to be worked out. Like a lot of drawings you’ll see, “Verify in field or work out in field.” Like there’s these acronyms. And man, I tell you, it’s like that comes from not being responsible for the execution.
David Supple: Being responsible for the whole deal, it actually brings freedom because you don’t have to worry about that stuff. Like you can just see it through and you’re not … And you’re able to in that ability to just be responsible for the whole project. It makes … It gets you starting to look out more as opposed to just your own deal and then this kind of cover your ass mentality.
Tom Messier: Yeah.
David Supple: But I will say, and I know a lot of them are your clients. There’s this hybrid that exists which is becoming extremely popular now where it is separate. Where you have a separate architect and you have a separate builder, but they’re hired at the same time. And they hooked up together. It’s not this design, bid, build. Where the build … It’s bid out and then you get the builder. And this is design build. Like that is the same fucking thing that we do except we’re all in house. So my argument is we’re … It’s in house. It’s simpler. It’s more efficient because we got the whole team together here. But hell, like as long as all the bases are covered and that’s where that comes from. That is where that comes from. Because those two professionals get it. And they understand the … I know you have a bunch of these clients, right?
David Supple: They’re like higher end builders and they work with amazing designers, architects, and they respect each other and their talents. And they’re … The designation of hats and what they’re responsible for is clarified. And as long as you got that from the beginning the client’s rolling. And pricing is figured out and execution and the workability of the design is got all thought through and collaborated and it’s not this complete disconnect. That can be very successful. And do you see that often now with your clients who are not design build? I
Tom Messier: Yeah. When you said that are not design build, the old … The architect designs
- The homeowner then goes out and gets four or five bids and now I’m bidding it. Now I’m going to build what I bid. Because a lot of times, there’s some real stuff lost between the architect’s vision, the homeowner’s preliminary vision, what the architect … And then, what the builder’s going to build.
David Supple: Yeah. How so?
Tom Messier: Well, the builder is … When it’s just this bid process. It’s almost like he’s cranked down to, “I just got to build what’s here, because that’s what they’re going to pay for and that’s what’s affordable to them.” And if they never had the discussion originally with the homeowner or with the architect, what’s the dream? What is it that I want at the end?
David Supple: What’s the big picture here, yeah?
Tom Messier: I don’t just want my kitchen with this counter. I want my kitchen to do this. I want my house to do this. And too often when it’s the design, quote, build. I think that whole question of functionality or why I’m doing something gets lost.
David Supple: Yeah. Amen. How big is this industry, insurance litigation in the construction industry? Just I know it’s kind of … Is it a big industry?
Tom Messier: Oh it’s … Well, I don’t know what you mean by big. I can tell you there’s not … Clients get sued all the time for lots of things. Clients have disputes with homeowners pretty regularly over … Sometimes it’s over a couple of dollars, but sometimes it’s at the end of the project. And “But I wanted my house to look like this.” “Well, you never told the contractor that’s what you wanted it to be.” You might have told the architect. But somehow the big scheme, the reason I’m doing it, the why got lost.
David Supple: Right.
Tom Messier: And the whole reason you’re investing this money in your house and doing the work that you’re doing is because you’ve got internally a big why.
David Supple: Yeah, because if you’re going to pay a lot of money, you’re going to go through some inconveniences.
Tom Messier: This is what I want at the end. Whether it’s for the kids, for the grandkids, for my … I want to be able to entertain. Or it’s for your dogs and cats. I don’t know who it’s for. But you’ve got a reason you’re doing this. And you need to make sure that the why doesn’t get lost in the process.
David Supple: Good, so I’m going to ask you again now, would the industry going into a more design build route, which it is already.
Tom Messier: I think it is.
David Supple: I think the consumer just doesn’t know about it yet, isn’t … Like HGTV, that’s all they watch is design build. All that is design build. They just don’t know it yet. And it’s intrinsic. It’s natural. It makes sense for things to go back into that direction. Is it simpler and would it reduce this liability game?
Tom Messier: I definitely think it’s simpler. I think it reduces the liability game because everybody has the same goal from the beginning. To me, that’s a big deal. What’s my goal? Why am I doing this? And as long as that goal is not lost, I think everybody’s better off.
David Supple: Yeah. And for me it reduces it because there ain’t nobody else. If something does come up, it’s like-
Tom Messier: It’s me.
David Supple: Yeah, I mean you can always point the finger at the client. But as a design build firm, it’s like it’s my job to find out what the client wants and then to design something and make sure they understand it. It’s me, no matter what. And so for me, it just is so much simpler. And so, how do you feel about that though business wise? Do you want me to … Do you still want me to put this out? You might lose business.
Tom Messier: No, because … Well, I don’t think I’m going to lose business. The best place to be… I would like this industry to get better. And the fewer the complaints that are out there, the better off everybody is. Through the Remodelers Association. The guys that are there and are active tend to be the more professional contractors. And I don’t know where we’re going here, but I will tell you that one of the things, as a homeowner, you don’t want to do is you don’t want to be the only major project that your contractor has done.
David Supple: Yeah. You got to have a track record.
Tom Messier: And if a guy has been doing kitchens, you don’t want him putting a big addition on your house.
David Supple: Yeah, if that’s his first one.
Tom Messier: You don’t want to be his first addition.
David Supple: Yeah. That’s very true.
Tom Messier: So yeah.
David Supple: Cool, man. Well, thank you for very much. I really appreciate you being on the show, taking the time. Really appreciate what you do for me and all my colleagues.
Tom Messier: Thanks for the opportunity.
David Supple: You do an amazing job, man.
Tom Messier: Thank you.
David Supple: You really … This guy’s amazing at what he does. And yeah. Please share this with folks. Really trying to increase awareness of design build because it does create a better experience. And in the end, better buildings.
Tom Messier: Thank you.
David Supple: All right, peace out. All right, man. Good job, dawg. That was-