BarbriSFCourseDetails
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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

  • work Practice Area

    Real Property - Transactions

Date & Time
  • event Date

    Wednesday, August 3, 2022

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE course will advise construction counsel on the most common defenses to construction defect claims brought against general contractors and subcontractors. The panel will advise counsel on reducing clients' exposure through sound management practices and careful contracting practices. The panel will discuss best practices in limiting liability and how courts are likely to assess the reasonableness of repairs and damage costs.

Faculty

Y. Lisa Colon
Partner
Saul Ewing LLP

Ms. Colon advises on legal issues involving public and private construction projects and real estate development, along with government contracting compliance. Board Certified in Construction Law by the Florida Bar, she focuses on both negotiation of deals and litigation of construction-related disputes involving businesses and professionals. Owners, contractors, designers and suppliers look to Ms. Colon to draft construction contracts across various project delivery systems. In particular, she has in-depth knowledge of the American Institute of Architects (AIA) and ConsensusDocs contract forms. Her experience with claims, litigation and arbitration includes matters involving liens, defects, contract disputes and disaster recovery. Ms. Colon has significant trial experience taking cases to verdict in state and federal courts as well as arbitrations resulting in awards for clients. 

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Patrick J. Perrone
Partner
K&L Gates, LLP

Mr. Perrone concentrates his practice on construction and product defect matters. He is an experienced trial attorney who has handled hundreds of cases involving consumer/building products and construction defects. Mr. Perrone is also an experienced class action attorney and has defended a variety of consumer/building products class action suits.

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Terence Kadlec
Director of Specialty Practices
Envista Forensics

Mr. Kadlec practices as a forensic engineer and expert witness, provides mentorship and technical oversight to colleagues, regularly collaborates with industry professionals, and leads Envista’s Construction, Digital Forensics, Energy, and Marine practices. As a design professional, he performed civil and structural engineering design of residential, commercial, marine, and industrial structures, which included supervisory roles in design and technical oversight. Mr. Kadlec’s experience with construction and design defects includes evaluations in civil and structural engineering matters, specifically related to residential, commercial, industrial, marine, and mixed-use properties. Mr. Kadlec is a frequent presenter at industry seminars across the United States on the topics of forensic engineering, expert witness testimony, and construction defect claims. As a licensed Professional Engineer in 18 states, and credentialed by NCEES as a Model Law Engineer, Mr. Kadlec has provided expert witness testimony through sworn affidavits, deposition, and trial.

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Description

Construction contractors and subcontractors are subject to complaints about the quality of their work. Project managers and construction executives should be aware of the defenses that may be available if a customer complains that work is defective.

Every party aggrieved by a construction defect owes a duty to mitigate damages. If an owner does not seek bids, the contractor may have a defense based on the owner's failure to mitigate damages.

Typically, if there is no express provision in the contract, then contractors do not have an automatic right to return to remedy defects, and the owner can employ anyone to complete remedial work. If there is an express right to repair provision, such as a defects liability period giving the contractor a period, such as 12 months, during which the contractor must return and remedy defects, it could be in both parties' interests for the contractor to return.

Many complaints about construction work are attributable to poor design. In general, contractors and subcontractors who build following the design furnished by the owner are not liable for the results, a concept known as the Spearin doctrine. Project managers and superintendents should review the progress and updated plans and schedules to verify that work is proceeding per the owner-furnished design.

Sometimes the repairs specified by owners include elements not called for in the original design. These additional elements would have cost the owner more money up front if the owner had included them in the original design documents. The "betterment" doctrine recognizes that it is unfair for an owner to get additional elements as part of a damage claim when the owner would have had to pay upfront for the omitted elements.

Listen as our expert panel discusses common construction defect defenses. The panel will address how contractors and subcontractors can reduce their exposure through sound management practices and careful contracting practices.

Outline

  1. Construction defect defenses
    • Loss mitigation
    • Notice and opportunity to cure
    • Spearin doctrine
    • Betterment doctrine
    • Discharge by prior material breach
    • Spoliation of evidence
    • Lack of causation
    • Fault of others
    • Acceptance
    • Exculpatory provisions
  2. Best practices

Benefits

The panel will discuss these and other relevant topics:

  • How is loss mitigation handled when a defective extension is demolished and rebuilt?
  • How are the Spearin and betterment doctrines applied to construction defect claims?
  • What are best practices for contractors to include in contracts to mitigate the most significant risks?