Justin Stark – June 16, 2012
“Oh No.”
Construction projects are often humankind’s most remarkable undertakings, building beautiful improvements to our world. Sometimes, however, things don’t work out quite right.
Defective Construction
What makes for a “construction defect”?
Failure to Accomplish the Anticipated Result
In order to be “defective,” the actual construction must necessarily have failed to meet some standard. And the pertinent standard may come from:
The “Code”: The government may have imposed certain standards on the construction project participants for the work that was performed. By failing to perform to the standard in the applicable code, the builder’s work may be deemed defective.
The “Contract”: The prime contract, the subcontracts, the material product warranties, etc., may contain minimum standards of quality or performance for the construction project. By failing to provide the requisite performance or quality, the work may be deemed defective.
The “Common Law”: Under standards of tort law governing all persons (or governing particular relationships), the work accomplished in the construction project have resulted in a “wrong” and “damage.”
The above sources of standards are more likely to be objectively determined than one’s personal, subjective evaluation of the work. One is reminded of the profound statement of The Big Lebowski’s main character: “Yeah, well, you know, that’s just like, uh, your opinion, man.”
The Accomplished Result Should Be Changed
We all make mistakes, of course. Some of our mistakes “we can live with.” Others we cannot. A construction defect may be one that must be addressed.
In almost all instances, the cost to fix or “remediate” a particular construction defect is much higher than the original cost of constructing that item. (And that’s looking only at the costs of construction—not taking into account the costs incurred in determining who will pay for the remediation.) Insurance may be able to provide financial resources to address a construction defect (or maybe not).
Of course, parties can differ regarding their relative responsibilities for a construction defect (e.g., “We didn’t cause this. They caused this.”) And it is often the case that a construction defect arises from a combination of the work of multiple parties. The involvement of multiple parties, of course, increases the difficulty in managing a timely and cost-effective “fix” of the defective construction.
via Construction Defects.