We have all heard someone accused of defective design or construction say “we did it that way because that is the way we have always done it.” While there are circumstances that require analysis of industry standard behavior, those instances do not arise often. More often than not, your obligation is controlled by an interpretation of the contract documents: the construction agreement, the plans and the project manual including the specifications. The interpretation is dependent upon both the type of contract that exists between the parties and the type of direction that is provided by the project designer. Let’s begin with some fundamentals.

Under the traditional design, bid, build delivery system, the project owner grants to the contractor an implied warranty that the contract documents are fit for their intended purpose of constructing the improvement. This warranty is known as the “warranty of constructability” and referenced in legal circles as the “Spearin Doctrine.” This doctrine springs from a United States Supreme Court opinion written in 1918, the United States versus Spearin (248 U.S. 132 is the reporter citation). The Spearin Doctrine has been adopted throughout the United States. It was adopted specifically in Florida in a 1970 case between Wood Hopkins Contracting Co. and Masonry Contractors, Inc. (235 So.2d 548). The Spearin Doctrine stands for the notion that a contractor who performs the work and supplies the materials in strict conformance with the requirements of the contract documents may have no liability if the end result is not what was anticipated by the owner. Stated another way, if a defect in the resulting construction is due to a deficiency in the project plans or specifications then a contractor will not have any liability. That is typically our starting point.

Conversely, there is a different result in Florida if the contractor does not follow the project plans or specifications. When the contractor deviates from the project plans or specifications, the contractor may not avoid liability simply by providing evidence that the project plans or specifications were defective. That is because when a contractor fails to strictly follow the requirements of the contract documents, the Spearin Doctrine no longer applies. At the point the contractor’s deviation occurs, the contractor, not the owner, then warrants the sufficiency of its work and provides an implied guaranty with respect to the result of the contractor’s deviation. In Rouselle versus B&H Construction Co. the court ultimately found that when a contractor failed to follow the contract documents, the contractor was liable for the result (358 So.2d 614, a 1st DCA case).

Of course, both of these results may be affected by the type of specification that is at the heart of the unexpected result, design versus performance specification, or if the delivery system for the work is not design, bid, build. We will explore those differences in future posts.