Brian K. Carroll’s family background—both his grandfather and father worked in construction—and his career, first as an engineer and now as a construction attorney, prepared him to focus on subcontractors and the special risks to which they are vulnerable. His emphasis on subs crystallized in part when he became co-owner and outside general counsel of a Texas paving and concrete contractor. Subcontractors took up even more of his attention when Carroll became an officer and then 2021-2022 president of the American Subcontractors Association that year. One of its core functions is to defend the legal rights of subs, with payment a constant concern.
The reality for subcontractors, says Richard Bright, chief executive of the ASA, is that “our people go out and don’t get paid up front, they have retentions and sometimes they wait years for final payment or never get it at all”.
Carroll and his colleagues at the Belton, Texas, law firm where he is the managing partner, Sanderford & Carroll, provide, at low cost, some of the intellectual and rhetorical firepower needed to win the support of judges deciding major construction disputes. Sanderford & Carroll have produced some of the most important amicus briefs for ASA and its chapters in recent years. And they do it for several thousand dollars, not tens of thousands of dollars, a discount to the current price of similar time-consuming legal services.
Amici briefs play a special role in American civil justice. Hundreds of trade associations in the sector present them every year.
This year, the Texas Supreme Court decided another major case for which Carroll and his colleagues wrote a brief. That case pitted traffic signal subcontractor Third Coast Services and general contractor SpawGlass Civil Construction against the family of Pedro Alfonso Castaneda, who died in a horrific car accident in 2019 next to an overpass being built in Pinehurst, Texas. Despite evidence that Castaneda had made a fatal driving error that led to the crash, his family tried to blame the recruiting team.
In most states, DOT contractors are immune from lawsuits if they meet state DOT specifications. In the Third Coast case, the contractors were employed by a county, and the Castaneda family claimed that, as a result, state DOT immunity did not extend to the contractors. A trial court and an appeals court upheld the Castaneda family’s argument that there was no immunity for the hiring team. Who the contractor worked for was a moot point. Sanderford & Carroll’s brief helped convince the Texas Supreme Court panel that the state DOT’s immunity extends to its contractors even when the work passes through a county, thereby insulating contractors from huge damages awards for accidents in which they have little or no actual liability other than that represented by creative personal injury attorneys.
The fees for these briefs charged by Carroll’s firm and others are paid out of the ASA’s Subcontractors Legal Defense Fund. The national ASA organization pledges a certain amount to support the fund, but relies on member donations, which can be made through the ASA website, to pay for all the necessary legal work.
Carroll is one of about 100 lawyers on the ASA’s Bar Council, whose members work with the association’s chapters, offering legal advice and speaking at webinars. While the landscape for resolving construction disputes, particularly those related to subcontractor payment and legal protection, “is a little better” than it was decades ago, Carroll says, the vulnerability still “requires continued diligence and advocacy.”
The subs, he says, “are the people who build the work and take the risk.”
