3 ways to reduce construction defect claims

Builders can’t bulletproof their projects from construction defect suits, but they can take steps to limit actual defects

My last column in Colorado Builder discussed a recent research paper that classified the 55 most prevalent alleged defects from recent construction defect cases in Colorado. This article is intended to answer the question of what Colorado builders should do with this information. The obvious answer is “ensure that your homes do not contain these defects.” That may be easier said than done. If you don’t want to leave it to chance, consider following one or more of these suggestions.

[Related: What a construction defect ‘win’ looks like for a builder]

Don’t rely solely on a builder’s set of plans. In most residential construction defect cases we have handled over the years, the builder has relied on plans that are sufficient to obtain a building permit, but are devoid of details describing how the construction is to be performed. Typically, there will be a stamp on the plans indicating they are a “Builder’s Set” and that by accepting the plans, the builder certifies that it has the expertise to properly construct the home without a fully detailed set of plans. Given that the same defects come up again and again, I think it merits asking your design team to provide additional construction details, especially for issues most often cited in construction defect claims. This could come in the form of more detailed plans or a standard detail book that can be used by trade partners from project to project.

Coordinate with third-party QA/QC providers. With the advent of wrap insurance programs, more and more insurers are requiring the use of third-party quality assurance or quality control providers to inspect certain elements of construction. It makes sense to coordinate these efforts to ensure that the elements being inspected align with those for which builders are being sued. To the extent that the QA/QC provider performs only “spot inspections,” ensure that the inspections are more heavily weighted to the most critical aspects of construction; for instance, window installation or waterproofing of lightweight concrete decks.

Train onsite personnel to identify errors. Once you have a more thorough set of plans or detail book to be followed, make sure that your onsite superintendent understands the details, can identify deviations from them, and has good enough relationships with trade partners to get them corrected. There are companies in Colorado that train construction professionals to do this well. Some builders may wonder, “What happens if we spend money training our people and they leave?” A better question is, “What happens if we don’t and they stay?” Colorado’s history of construction defect litigation answers the second question.

While there is no easy answer or silver bullet that will protect builders from the threat of construction defect litigation, I believe that learning from past cases and using that information to avoid repeating known problems is certainly a step in the right direction.

[Related: The next evolution in Colorado construction defect litigation?]

Please feel free to reach out to me at (303) 987-9813 or by email at [email protected] if you would like to explore revamping your building practices in order to make yourself a hardened target.

David McLain

David McLain is a founding member of Higgins, Hopkins, McLain & Roswell LLC, a law firm specializing in construction law and litigation in Colorado. He can be reached at [email protected].

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2 thoughts on “3 ways to reduce construction defect claims

  • June 11, 2019 at 4:20 pm

    Loved the article, David. I agree with all 3 – just want to emphasize builders should do all 3. Also, a good QA Provider not only coordinates activities (2), but should serve as a reliable resource to help enhance construction documentation (1) train the builder’s team (3).

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