This article takes a brief look at possible remedies for faulty work following project completion. Thoughts expressed here are based on construction-contract language found in many standard contracts, but differences in contract language and project location can change these basic propositions so attorney review and consultation is critical.
Under a standard AIA contract and many other standard forms, faulty work might be addressed under several legal theories. First, owners typically receive a “call-back” warranty applicable for one year following substantial completion. Second, owners typically benefit from several warranties, some required by the standard construction contract and some required by law. Third, owners often pursue contractors for breaches of other contractual provisions governing quality of the work. Fourth, owners often seek indemnification from contractors under most standard contracts. Other remedies may apply, but we will briefly focus on these four common approaches.
1. The “Call-Back” Warranty
The call-back warranty, also known as the correction period, is an owner’s first line of defense. The purpose of the call-back warranty is to require the contractor to physically return to the site to correct faulty workmanship and materials.
The call-back warranty puts the burden of correction on the contractor, rather than the owner. Owners need not prove why a particular defect occurred, only that a defect exists. The contractor is obligated to either correct its work or show why its work is not defective or falls under an exception to the call-back warranty. Under the call-back warranty, the contractor is obligated to return to the site and correct its work at its cost. Call-back warranties typically expire one year after substantial completion.
2. Express and Implied Warranties
Depending on the contract’s language, the call-back warranty is arguably different from other warranties provided in the contract. It’s important to consult your attorney regarding the possible differences.
Construction contracts often also provide the following three warranties: (a) a warranty regarding the quality of materials used in construction, (b) a warranty that the work will comply with standards provided in the contract documents, and (c) a warranty that the work will be free from defects. Additional special or extended warranties may also be expressly provided and there may be express warranties for supplies incorporated into the project. Express warranties are often subject to exclusions.
In addition to the express warranties, several implied warranties may apply, depending on applicable law and contractual disclaimers. While express warranties arise from contractual language, implied warranties are inferred from the facts or created by operation of law. These implied warranties could include workmanlike performance, suitability of construction work, and, for supplies provided on a project, warranties for merchantability and fitness for a particular purpose.
If the contractor breaches one of these warranties, the owner’s damages may be based on either the cost to repair the defective work or the difference in the value of the project with the faulty work as compared to the project’s value had the work been properly performed. In either case, the damages can be substantial. Additional remedies might include rental costs incurred due to delayed completion, economic loss resulting from breach of warranty, loss of full use and enjoyment of the property caused by the breach, and the probable costs of future repairs.
As discussed above, the call-back warranty period is typically effective for the one-year period following substantial completion. Other express and implied warranties, however, are governed by the applicable statute of limitations period in the state in which the project is located. In Indiana, the statute of limitations is 10 years, but states vary considerably. A state’s statute of repose can also be critical. As opposed to applicable statutes of limitation, statutes of repose generally begin to run upon substantial completion of the project. These statutes operate to cut off claims after a designated period of time, regardless of whether a defect is discovered during the period. These periods also vary by jurisdiction. In Indiana, the statute of repose is 10 years.
3. Breach of Contract
In addition to the express warranty provisions discussed above, construction contracts often contain other provisions obligating the contractor to ensure that its performance and work meet certain standards. Sometimes those provisions are very similar to warranty language, but they are different because they permit a breach of contract action, rather than a breach of warranty action. That distinction can be important because (a) the burden of proof may be different, (b) different statutes of limitations may apply, and (c) different damages measures may apply. For example, contracts may permit recovery of consequential, incidental, liquidated damages, and other remedies for breaches of contract, while not providing those remedies for breach of warranty.
Common indemnification provisions may provide another distinct avenue for recovering damages resulting from faulty work. For instance, standard AIA language obligates the contractor to indemnify the owner “from and against claims, damages, losses, and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the Work . . . to the extent caused by the negligent acts or omissions of the Contractor . . . .” Unless otherwise provided in the contract, the limitations period for contractor’s indemnification obligation is the same as for breach-of-contract actions. However, the section affords at least one additional, and significant, benefit—recovery of attorneys’ fees.
Under standard construction contracts, a variety of approaches exist to remedy faulty work. The call-back warranty is the first line of defense. Additionally, recovery may be available under express and implied warranties, other obligatory standards in the contract, and through indemnification. Differences in contract language and project location vary the availability and scope of these remedies, making attorney review and consultation critical.
By: Charles B. Daugherty
A “flow-down” clause provides that a subcontractor assumes toward the builder all the duties and obligations the builder has assumed toward the homeowner. Flow-down clauses can create a number of problems. If the clause is interpreted broadly, the subcontractor may have agreed to build the entire home. If the intent of the clause is to impose on the subcontractor only the technical requirements of the contract that apply to the subcontractor’s scope of work, an overly-broad flow-down clause obviously will not accomplish this intent.
In a Nevada case, a contract clause stated that the risk of loss of completed work remained with the builder until final acceptance by the project owner. The clause was incorporated into a subcontract by a flow-down clause. The subcontractor ultimately bore the risk of loss until final acceptance of the home.
And in a Washington State case, a prime contract required the builder to name the owner as an additional insured on the builder’s liability policy. The court held that a general flow-down clause did not impose this obligation on a subcontractor since it was not sufficiently precise to put the subcontractor on notice that this was required.
A few Indiana courts have interpreted flow-down clauses, often with mixed results. In one Indiana case, a contract required the builder to provide the owner with lien waivers prior to receiving payment. The subcontract contained no such requirement, but a flow-down clause incorporated the lien waiver requirement into the subcontract. The lien waiver was held to be a necessary condition to the subcontractor’s right to get paid.
In a 2002 case, the court considered the standard flow-down clause contained in the contract forms promulgated by the American Institute of Architects. The court noted that “a flow through provision is intended to incorporate into the subcontract the provisions of the prime contract which related to the subcontractor’s performance.” The court found that an acceleration claim submitted by the subcontractor was barred by the failure to provide written notice of the claim within the time required by the contract between the owner and builder.
Conversely, the court refused to flow-down for the benefit of a subcontractor a preferential interest rate contained in the prime contract in a 2002 Indiana case. The court determined that the flow-down clause only pertained to the “work” provisions of the prime contract applicable to the subcontractor “and as such do not include the payment provisions” of the prime contract. The court also recognized “a public policy interest in allowing subcontractors to negotiate a price without being constrained by the contractor and owner’s negotiated price and method of payment.”
By: J. Greg Easter
Construction contracts come in all shapes and sizes. For commercial projects, the parties often use pre-printed contract forms such as forms promulgated by the American Institute of Architects, the Associated General Contractors, and the Engineer’s Joint Contract Documents Committee. However, there are few generally-accepted contract forms applicable to residential projects, although pre-printed forms used for commercial projects may be modified for use on some residential projects. They may be particularly appropriate for large or complex residential projects.
Most residential contracts are “customized” forms drafted by the attorney for a party. Many disputes have arisen as a result of the failure of the builder to include in the contract all of the essential terms of the transaction or to express the intentions of the parties in clear terms. Other disputes have originated from the failure of the builder to incorporate by reference the plans and specifications that govern the technical aspects of the builder’s work or other documents that were intended to be a part of the deal.
That leads me to Rule #1: All construction contracts should incorporate by reference a set of plans and specifications prepared by an architect, engineer or designer. Where the plans and specifications are incorporated by reference, the builder is bound to comply with the requirements of the plans and specifications. And when the builder strictly complies with the requirements of the plans and specifications, the builder will not be liable for the consequences of defects in the plans and specifications.
Under the doctrine of “incorporation by references”, a separate document may become a binding part of a construction contract by virtue of an express reference to that document in the contract. It is not necessary to attach the incorporated document to the contract, but the referenced document must be in existence and must be reasonably described.
An example: “The Builder shall perform the Work in accordance with the plans and specifications identified in Schedule 1 to this contract.” By referring to the Schedule 1 plans and specifications, and then attaching that Schedule 1 to the contract at the time the contract is signed, the plans and specifications are considered by the law to be as much a part of the contract as if they were physically reproduced in the body of the contract.
By J. Greg Easter
So how can a contactor limit its liability for bad work claims?
At least in Indiana, the answer depends on the type of project. For most commercial projects, the parties are free to negotiate the period of time the contractor can be held liable for defective or non-conforming work. A disclaimer or limitation of warranties will generally be enforced by the courts as long as the contract language is clear and unambiguous. Courts, however, generally disfavor disclaimer language; even the clearest language may not be enough to disclaim liability for a bad work claim depending on the nature of the claim and the factual circumstances involved.
It gets a bit trickier when the contract both creates and disclaims warranties. An “express warranty” is a representation or promise in a contract that certain facts are true and will remain true – it is not necessary to use words such as “warranty” or “guarantee” in order to create an express warranty. And an express warranty cannot be disclaimed by language disclaiming “all warranties.” Courts will attempt to reconcile the two provisions, usually finding that the express warranty trumps the disclaimer provision.
For example, a statement in a construction contract to the effect that the contractor will perform “in a good and workmanlike manner” creates an express warranty in favor of the owner; a disclaimer of “all warranties” will probably not be interpreted as excluding the “good and workmanlike” warranty created by the express language of the same contract. In other words, if you want to disclaim liability, avoid contractual language that may create an express warranty in the first place.
A contractor’s attempt to limit liability may be frustrated unless the contractor also disclaims “implied warranties,” warranties that are not stated in the contract but are “implied” from the nature of the work or the relationship of the parties. For example, most states, including Indiana, recognize that in performing work and furnishing materials, the contractor impliedly warrants that the work will be performed in a “workmanlike manner.” A disclaimer of “all warranties” probably will not effectively disclaim this implied warranty.
It is a bit more difficult to disclaim warranties applicable to residential projects – homes built for persons who intend to occupy them. Indiana’s “New Home Construction Warranties” statute permits a builder to disclaim all implied warranties only if the builder provides the homeowner with certain express warranties. In addition, those warranties must be backed by insurance, including completed operations insurance for consequential damages, and the homeowner must sign a disclaimer form entitled “Notice of Waiver of Implied Warranties,” the language of which is set out in the statute.
It should be noted that a valid contractual disclaimer of warranties may not be a winning defense to a third party claim involving property damage or personal injury. These are claims “sounding in tort” (a French word for a legal “wrong”) and the injured party may be able to maintain a claim for “negligence” against a contractor even if the contracting parties agree otherwise. Most contractors are protected against such claims by commercial general liability insurance.
By J. Greg Easter
Reminder: Accrued vacation time must be paid at termination absent a written policy to the contrary.
Today’s Indiana Court of Appeals decision in Shofstall v. International Union of Painters and Allied Trades is a reminder that accrued vacation time must be paid at termination unless the employer has adopted a written policy to the contrary. Such policies are often included in employee handbooks and can preclude payment of vacation time upon termination or otherwise condition payment upon a contingency such as providing and working through a two-week notice.