5.3.1.6.3 Enforcement of Implied Warranty Claims

• Jurisdiction: Arizona

There are several target defendants for a contractor’s damages claims arising from defective plans and specifications. The obvious principal defendant is the owner. If the owner is found liable to the contractor, he is obligated to pay all of the contractor’s extra costs and expenses proximately resulting from the defective plans and specifications, which could include loss of efficiency or productivity and other delay damages such as standby time, increased cost of labor and materials and, arguably, extended home office overhead (Eichleay damages).^[148]

An additional target defendant is the design professional engaged by the owner (i.e., the architect or engineer) who prepared the defective plans and specifications. However, these design professionals are potentially liable to the contractor on a professional negligence basis and not breach of any implied warranty. Traditionally, proof of negligence (and not implied warranty) has been required to impose liability upon design professionals. Despite the lack of any contractual privity (the basis for any implied warranty claim), the...