CONSTRUCTION DEFECT LITIGATION

Construction defect work is a focus of this firm and one to which Christopher S. Beard and Jonathan Arnold devote a substantial part of their practice. A defect claim is rarely about a single bad decision. It is usually about a chain of choices made by a designer, a builder, and a series of subcontractors, and about who carries the cost when the result does not perform. Whether you are an owner who has found a problem, a builder defending one, or an insurer weighing exposure, the early decisions about notice, inspection, and preserving evidence tend to matter more than anything that happens later.

WHAT COUNTS AS A DEFECT

Construction defects are commonly grouped into four categories. The grouping matters because it usually points to who is responsible.

Design defects. The plans or specifications themselves are inadequate. Responsibility tends to run to the architect or engineer who prepared them.

Material defects. The materials supplied were defective, were unsuitable for the application, or failed sooner than they should have. Responsibility may run to a manufacturer or supplier as well as to the party who selected them.

Workmanship defects. The work departed from the plans, the specifications, or the applicable building code. Responsibility usually runs to the contractor or the subcontractor who performed it.

Subsurface and site defects. The site was not properly prepared, drainage was inadequate, or soil conditions were not accounted for. These often produce the most expensive claims, because the damage is structural and tends to appear years after the work is finished.

Note: A single failure often falls into more than one category. Water intrusion at a window may involve a design detail that was never going to work, a sealant that was wrong for the exposure, and an installer who did not follow the detail as drawn. Establishing which of those caused the damage is usually the central question in the case.

HOW LONG YOU HAVE TO BRING A CLAIM

Alabama applies two separate limits, and a claim must satisfy both.

The limitation period. Under Ala. Code § 6-5-221, a civil action in tort, contract, or otherwise against an architect, engineer, or builder must be commenced within two years after the cause of action accrues.

The statute of repose. No relief can be granted on a cause of action that accrues, or would have accrued, more than seven years after the substantial completion of construction.

“Substantial completion” is the point at which the work is complete enough that the owner can occupy or use it for its intended purpose. It is not necessarily the date of final payment, and it is not the last item on a punch list.

Note: The dates that matter in a given case are worth establishing at the outset rather than assuming.

WHO CAN BE LIABLE

A defect claim often involves several parties at once, and the contracts between them usually decide how the cost is finally shared. In Alabama a homebuilder and a general contractor are not the same thing, and which one you are dealing with depends on the project.

• The homebuilder, on residential work, for the house as a whole and for the trades working under it.
• The general contractor, on commercial and larger projects, for the work as a whole and for the performance of its subcontractors.
• Subcontractors, for the trade work they performed.
• The architect or engineer, where the failure originates in the design rather than the execution.
• Manufacturers and suppliers, where a product failed or was unsuitable for the use.
• Developers and sellers, depending on what was disclosed and what was warranted at the time of sale.

Note: Indemnity provisions, additional insured endorsements, and the terms of the subcontracts often determine the outcome as much as the underlying facts do. These are worth reading early.

WHAT A CLAIM REQUIRES

Defect cases are proved with documents and with experts, and both are easier to assemble before the damage is repaired than afterwards.

• The contract documents, plans, specifications, and any approved changes.
• The construction file, including submittals, inspection reports, and correspondence.
• A record of the damage as it was found, photographed before any repair work begins.
• An expert assessment identifying the cause rather than only the symptom.
• Evidence of the cost to put the work right, and of any consequential loss.

Note: Repairing a defect before it has been documented and inspected can weaken an otherwise strong claim. Where the repair cannot wait, the condition should be recorded thoroughly first.