The outcome of construction defect claims often depends on the warranties that courts "imply by law" into the relationships between the property owner, design professionals and general contractor. Implied warranties are based on the court's sense of fairness. They serve as "ground rules" for the resolution of disputes and often reflect construction industry standards. There are two basic implied warranties with construction projects: an owner's Warranty of Adequate Specifications, and the general contractor's Warranty of Workmanlike Performance.

Warranty of Adequate Specifications

On most projects, the owner hires architects and/or engineers to provide plans and specifications for the work and then hires a general contractor to build it. When construction defects are discovered, the parties often argue whether the defects were caused by faulty workmanship or by an inadequate design. Under this scenario, the owner is deemed responsible for any design defects. This is known as the Spearin Doctrine from a 1918 Supreme Court case.

Under the Spearin Doctrine, the general contractor has a safe harbor from legal liability if he follows the plans and specifications. Since the warranty is "implied by law", it is not superceded by general contract provisions which require the general contractor to visit the site, review plans or to assume responsibility for the work until completion and acceptance.

The Spearin Doctrine is a powerful defense against construction defect claims. However, this is not to say that the general contractor can turn a blind eye when faced with plans and specifications that appear to be defective because the general contractor's warranty of workmanlike performance comes into play.

Warranty of Workmanlike Performance

Workmanlike performance does not mean that the work has to be perfect. It means the work is to be constructed in a skillful manner. Some courts have held this warranty to also mean that the general contractor has a duty to inform the owner or design professional of defects in the plans or specifications that are either obvious or reasonably discoverable.

For instance, in the 1973 Dobler case from North Dakota (Dobler v. Malloy, 214 NW.2d 510, 513 (ND 1973), the court held that the general contractor had a duty to warn the homeowners that their decision to change roofing material from wood shingles to cement tile might cause the roof joists to fail. In the 1975 Lewis case from Alaska (Lewis v. Anchorage Asphalt Paving Co., 535 P.2d 1188, 1190 (Alaska 1975) ), the court held that the general contractor had a duty to notify the owner of problems in the owner's design of a roadway.

The lessons learned here are that a general contractor has a solid defense if defects are caused by bad design. However, this defense can't be used if the contractor knew of the design flaws and simply ignored them.

Thanks to Jack Levy for the information

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