ConstructionPro Week, Volume: Construction Advisor Today - Issue: 116 - 07/14/2011

Do Workmanship Warranties Amount to Strict Liability for Contractors?

Construction contracts usually include an express warranty of workmanship and materials. The contractor promises to replace or repair, at no cost to the project owner, any defect which appears within one year of completion. While this seems straightforward, it actually leads to a common argument. Was the problem of which the owner complains actually caused by defective workmanship?

A recent decision in a federal appellate court addressed this issue. Vinyl floor tiles in a hospital surgical suite lifted and separated. Repeated repairs by the contractor were ineffective. The frustrated owner eventually brought in another company to replace the tiles and sued the contractor for breach of warranty.

 

 

At trial, the owner was unsuccessful in introducing expert testimony regarding the cause of the tile failure. One witness failed to qualify as an expert. Another qualified, but his testimony was excluded as unreliable. Nonetheless, the jury awarded the owner substantial damages. The contractor challenged the award, contending there was no evidence to establish causation of the problem. The appeals court rejected this argument. The jury could use common sense to infer that the problem must have resulted from defective workmanship or materials. No expert opinion was necessary.

 

Does this amount to strict liability for contractors under the express warranty of workmanship and materials? Strict liability may be an overstatement, but it appeared in this case that there was a presumption the defect must have resulted from contractor shortcomings. The contractor failed to rebut this inference, so it was held liable for the problem. What do you think? Are warranties being interpreted in a way that is unfair to contractors? I invite your comments.

 

Featured in Next Week’s Construction Claims Advisor:

  • Trade Contractor Price Proposal Did Not Lead to Binding Subcontract
  • Ohio Supreme Court Rules CM-at-Risk Not Subject to Bond Statute
  • Pennsylvania High Court Addresses Alleged Favoritism and Misrepresentation

 

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