Defective Construction

AuthorCarol J. Patterson - Ross J. Altman - Stephen A. Hess - Allen Overcash
Pages611-651
CHAPTER
611
Although the phrases “construction defect,” “construction deciency,” and
“defective construction” are convenient ways to refer to some aw in a struc-
ture that distinguishes the problem from, say, a payment dispute or an OSHA
claim, the use of these shorthand phrases belies the complexity of the sub-
ject. The mission of this chapter is to bring some analytical order to the broad
topic of “construction defects,” identifying some of the myriad ways in which
construction might be deemed “defective” or “decient,” outlining the spe-
cic legal claims under which an owner can recover for defective or decient
construction, examining some defenses that a party charged with defective or
decient construction might assert, and addressing a pair of special issues that
arise in dealing with construction defects.
20.01 OVERVIEW OF THE LEGAL ANALYSIS OF DEFECTS
In this section, we provide a rough overview of construction defect analy-
sis by reviewing the types of aws that may qualify as defective or decient
Defective Construction
RICHARD J. TYLER
20
The author acknowledges the contribution of Michael Drew, a partner in the New Orleans ofce
of Jones Walker LLP, to the original version of this chapter.
pat54645_03_b03_497-844.indd 611 6/28/19 1:53 PM
CONSTRUCTION LAW
612
construction, and then we provide an overview of the assignment of responsi-
bility for such aws.
A. What Constitutes “Defective” or “Deficient” Construction?
1. Types of Defects or Deciencies
There are many ways in which a property owner may be dissatised with the
results of the design or building process, and the variety of dissatisfaction
makes uniform denition of a construction “defect” elusive. One formulation
describes a construction defect as work performed that falls below the stan-
dard promised or reasonably expected by the purchaser of the work or ser-
vices. Another formulation looks at whether there is a lessening in the utility
and/or value of the project. Yet a third formulation looks to the appropriate-
ness or suitability of the work. However construed, there is general agreement
that actionable defects arise out of the construction process itself and that nor-
mal wear and tear are not “defects” for purposes of construction claims.1
For purposes of this chapter, we will consider completed construction
“defective” or “decient” whenever it fails to satisfy an applicable contractual
or legal standard that imposes requirements on the construction. The task of the
next few sections will be to describe the standards that apply to construction
such that a deviation renders it defective or decient in some actionable sense.
From a broad perspective, consider the many types of deciencies that
might result in work being deemed defective: (1) materials and equipment
furnished are not of the quality required or permitted by the contract (e.g.,
the pump installed does not work or has insufcient capacity); (2) the work
is executed in a defective manner (e.g., paint is applied with inadequate sur-
face preparation, resulting in premature scaling or peeling of the paint and
eventual rusting of metal structural members); (3) the work, while executed
correctly technically, does not conform to the requirements of the contract
(e.g., the contractor applies the wrong color paint);2 (4) the construction itself
1. See Richards v. Powercraft Homes, Inc., 678 P.2d 427, 430 (Ariz. 1984). The distinction
between wear and tear and defective construction has ramications in other contexts as well. See,
e.g., Walters Beach Condo. Ass’n v. Home-Owners Ins. Co., 2017 WL 5503789, at *3 (Mich. App.
2017) (insurance coverage); Central Parking System of Missouri, LLC v. Tucker Parking Holdings,
LLC, 519 S.W.3d 485, 494 (Mo. Ct. App. 2017) (liability for repairs under lease agreement).
2. One treatise suggests that nonconforming work may not be defective where there is no
economic consequence to the owner, such as the application of the wrong color paint. See 2
PhiliP
l. Bruner & Patrick J. O’cOnnOr, Jr
.,
Bruner & O’cOnnOr On cOnstructiOn law
§7:215 (West Group
2002) [hereinafter
Bruner & O’cOnnOr
]. But see American Institute of Architects, AIA Document
A201–2017, General Conditions of the Contract for Construction §3.5.1 (2007) [hereinafter AIA
Document A201–2017] (listing circumstances under which work may be considered defective,
including nonconformance with the requirements of the contract documents). We intend the
pat54645_03_b03_497-844.indd 612 6/28/19 1:53 PM
Defective Construction 613
is perfectly sound but violates building codes in effect at the time of design
or construction (e.g., a re suppression system is functional but undersized);
or (5) the work fails to meet professional standards for design at the time
drawings were approved (e.g., the roof is designed without taking into account
snow loads and the building collapses during a heavy winter storm). Although
each of these may constitute a construction “defect” or “deciency,” the legal
standards under which an individual claim is prosecuted may be different for
each of the causes listed. In assessing claims for construction defects, the rst
step is to determine the standard that applied to the construction at issue and
the manner in which the construction failed to satisfy that standard. The vari-
ety and sources of standards are discussed throughout the chapter.
2. Manifestations versus Defects
As the reader approaches construction defects claims, it is vital to note that
defects or deciencies must be distinguished from their manifestations.3
Although these terms are related—and, often, both must be corrected—a man-
ifestation is to a defect what a symptom is to a disease. The manifestation is
the obvious or apparent visible condition that serves as notice of the possibil-
ity of a defect.4 While a defect and its manifestation may be the same thing,
oftentimes they are not. For example, a crack in a newly constructed wall is the
manifestation of some defect—but what defect? Consider:
1. Is the crack the result of a problem with the material used to construct
the wall?
a. Were the material components defectively manufactured?
b. Did the design call for improper materials to be used on the wall?
c. Was the material improperly prepared?
d. Was the material improperly installed?
2. Is the crack the result of a problem with how the wall is attached to the
rest of the structure?
a. Did the design call for adequate reinforcement?
b. Was the wall improperly constructed?
c. Was the material reinforcing the wall defective?
phrase “defective or decient” construction to encompass all failures to satisfy applicable stan-
dards of construction as discussed in this chapter.
3. As but one example, statutes of limitations (discussed in Section 20.05) may start to run
when a defect causes physical manifestations rather than when the defect itself is discovered. See,
e.g., Broomeld Senior Living Owner, LLC v. R.G. Brinkmann Co., 413 P.3d 219 (Colo. App. 2017).
4. See generally Bd. of Trustees of Santa Fe Cmty. Coll. v. Caudill Rowlett Scott, Inc., 461 So.
2d 239 (Fla. Dist. Ct. App. 1984). There, the plaintiff discovered leaky pipes shortly after the com-
pletion of construction. However, it was not until years after this discovery that plaintiff was able
to determine that the defect causing these leaks was the contractor’s decision to bury the pipes in
clay, causing them to corrode.
pat54645_03_b03_497-844.indd 613 6/28/19 1:53 PM

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