5.7 Contractor Defenses

• Library: Virginia Construction Law Deskbook (Virginia CLE) (2019 Ed.)

5.7 CONTRACTOR DEFENSES

5.701 Compliance with Plans. Compliance with the plans and specifications provided by the owner is a defense to a defect claim against the contractor. Under Virginia's version of the Spearin doctrine, ²¹² a contractor that is required to construct a project according to the plans and specifications provided by the owner may not be held responsible for defects arising out of those design specifications. ²¹³ The strength of the Spearin doctrine in Virginia, however, is not clear. At least one circuit court has ruled that the doctrine does not apply if the contract documents require the contractor to verify design details and notify the engineer of errors and omissions. ²¹⁴

5.702 Interference, Impossibility of Performance, and Waiver. Other defenses include interference by the owner and impossibility of performance. Furthermore, an owner may waive its ability to recover from a contractor by failing to protest a defect that is known or should have been known or by accepting a contractor's work and making payment without question.

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5.703 Opportunity to Cure. Construction contracts may provide language requiring that the contractor be given the opportunity to cure defects before a lawsuit is commenced. While Virginia does not have a general opportunity to cure or right to cure statute with respect to construction defect claims, the Virginia Condominium Act does provide for an opportunity to cure in the context of condominiums. ²¹⁵ A right to cure a breach of express or implied warranty under section 55.1-357 of the Virginia Code also exists where the claim pertains to construction of a new dwelling. Specifically, after notice, the builder has a "reasonable period of time, not to exceed six months, to cure the defect that is the subject of the warranty claim." ²¹⁶

5.704 Liability of Subcontractors and Indemnification. Many construction lawsuits involve a claim by the contractor against subcontractors. Often the subcontract will contain an indemnification provision in which the subcontractor indemnifies the contractor for losses and claims arising out of the subcontractor's work. If the owner's claims were for defects caused by a subcontractor, the indemnifying subcontractor will be ultimately liable for the defects. Virginia's "anti-indemnity" statute does not allow a subcontractor to indemnify a contractor against the contractor's own negligence. ²¹⁷

Absent a contractual indemnification provision, Virginia recognizes theories of implied or equitable indemnification under which a party at fault may be legally liable for damages resulting from its work. ²¹⁸

5.705 Statutes of Limitation and Repose. The statute of limitations for breach of written contract in Virginia is five years. ²¹⁹ The statute of limitations begins to run when the breach occurs, not...