So What Exactly is a Construction Defect?
By Christopher E. Carter, P.E.
This is one of those 64,000 dollar questions. It is a question in which everyone has an answer, but one for which no one has a consensus.
The term, “construction defect,” is an important one in the industry, because it is what drives most warranty claims and resultant litigation. Indeed, it is also one for “construction professionals” in Colorado to understand, since it is referenced in HB-1161 – the modified Construction Defect Action Reform Act (CDARA II); the new law which now prescribes the administration of construction defect claims..
Given the above, it would be helpful to develop a working understanding of this term to assist construction professionals in evaluating claims made. Here is a suggested question that can be asked to help determine the existence of an alleged construction defect:
Is the alleged construction defect something that was intended or expected?
If the answer is yes, then be prepared to defend it. If the answer is no, then there will be several options.
Let’s look at a simple garage slab-on-grade example which goes to claim. Suppose it has experienced heave in the center of the slab which now causes vehicle water runoff to drain and pond at the rear wall. Let’s also suppose it has separated and diselevated one-half inch across the control joints.
Is the alleged construction defect with the garage slab something that was intended or expected?
If the answer is yes, some additional questions regarding initial homebuyer disclosures, design selection, material usage, construction conformance, etc. may subsequently come as part of a legal complaint.
If the answer is no, a variety of alternatives from slab repair/replacement, to statutes of limitation and repose, to negotiated settlement, to subrogation, to “sorry we don’t do slabs,” etc. will be available.
In being an engineer, it always comes down to design parameters for me. If the design was proper, and the component in question is performing as intended or expected, then there should be no construction defect. If not, then maybe there is one.
In either case, how the question is answered, is how your fate is likely to be determined. So, the key to understanding this term, “construction defect,” is not in trying to define a right answer, but is in asking the right question(s).