16 Trial Lawyer • Fall 2023 Residential Construction Continued from p 15 from the contractor. Sometimes, this process does result in a settlement of the issues either through the payment of money or the offer to repair the defects at the contractor’s expense. For Jane, there was no early settlement, so we waited 90 days from the date of the notice of defect before filing the negligence claim in court. Who is to blame Given that Jane could have sued anyone involved in the design and construction of her home, the question of “design versus construction” came up early in the case. This is an important distinction in construction defect negligence claims. Liability for construction problems is typically an installation or design question. Generally speaking, if a contractor follows a design provided by an owner or third-party, the contractor might not be found responsible for a defect. Instead, the architect or engineer behind the design might be responsible. This is sometimes referred to as the Spearin doctrine. Generally, under this doctrine, In the case where an owner supplies plans to the contractor, there is an implied warranty that the plans will produce a good product if followed. If there is no specific plan, detail or specification on point, or if the design was patently improper, then the doctrine is not available. And the doctrine will not work as a shield for a contractor who does not follow the plans. Why does this matter for a negligence claim? It matters because a negligence claim against a design professional such as an architect or engineer has a big initial hurdle. Extra protection A plaintiff who needs to allege a professional negligence claim against a design professional such as an architect or engineer faces an additional legal hurdle that is not present in a negligence claim against a contractor. As an initial matter, design professionals are held to a standard of care generally that of an ordinarily skilled design professional. But, a plaintiff such as Jane cannot just sue a design professional for negligence like they could sue a contractor. Instead, a plaintiff’s attorney must expressly certify in the complaint that the attorney has consulted a qualified, available design professional with similar credentials to the defendant design professional, who is willing to testify as to the liability of the defendant design professional. In other words, one design professional has to be willing to testify as to the negligence of another design professional in order to make out the claim. The plaintiff’s expert must be willing to testify that the defendant design professional failed to meet the standard of care of other design professionals with similar credentials, experience and expertise and practicing under the same or similar circumstances; and the alleged conduct was a cause of the claimed harm. If the statute of limitations is about to run, the attorney may submit an affidavit indicating that a good-faith effort was made to consult with an expert, and that the attorney will submit a qualifying certification within 30 days of filing. As you can imagine, it is not always easy to find a design professional willing to testify as to the negligence of another design professional. It is expensive. And, in the typical case, the design professional accused of negligence will have an expert of their own, to argue that the standard of care was in fact satisfied by the defending party. In such a case, assuming the experts are all qualified, the ultimate decision-maker would be the jury, asked to decide whether the conduct of the defendant fell below a minimum standard of care. In our case, we were able to retain a geotechnical engineer as an expert and “certify” the claim against the defendant geotechnical engineer. Along with the expert retained to prove the case for construction negligence against the original builder, we then had the necessary tools to prosecute the case. A smooth future Ultimately, the case was resolved through mediation, and Jane was able to repair her home. Jane is now comfortable living in her home. She fixed all the cracks in the walls, painted the house, and has been able to turn her attention to her kids and family life. The nightmare of owning a home that was falling apart is just that — a nightmare in the past. Rob Wilkinson is a partner at Vulin Wilkinson LLC, 1826 NE Broadway St ., Portland, OR 97232. His practice focuses on construction disputes, including construction defect and property damage claims. He contributes to OTLA Guardians at the Sustaining Member level. Wilkinson can be reached at 971-230-8136 or rwilkinson@vulinwilkinson.com.
RkJQdWJsaXNoZXIy MTY1NDIzOQ==