It is well-settled, but apparently not widely known, that the contractor is not the guarantor of the plans and specifications drawn by the owner’s expert engineer or architect.  This governing principle is the cornerstone, upon which the traditional relationship between the owner and contractor (as well as between the contractor and subcontractor) is built.  The contractor’s duty is to build according to the plans and specifications, furnished by the owner; and the contractor’s warranty is limited thereby in scope.  Our industry is steadily losing sight of many of the core principles which guide our industry; and the importance of this principle cannot be overstated.

In 1918, the Supreme Court of the United States (“SCOTUS”) rendered its decision in U.S. v. Spearin, 248 U.S. 132, 39 S.Ct. 59, 63 L.Ed. 166 (1918).[i]  In U.S. v. Spearin,[ii] SCOTUS held that the furnishing of plans and specifications to the contractor carries with it an implied warranty that the plans and specifications will result in adequate and sufficient work, as intended.  The breach of this implied warranty gives rise to liability for the extra costs incurred by the contractor.  The Court in U.S. v. Spearin stated:

The risk of the existing system proving adequate might have rested upon Spearin, if the contract for the dry dock had not contained the provision for relocation of the 6-foot sewer. But the insertion of the articles prescribing the character, dimensions and location of the sewer imported a warranty that if the specifications were complied with, the sewer would be adequate. This implied warranty is not overcome by the general clauses requiring the contractor to examine the site, to check up the plans, and to assume responsibility for the work until completion and acceptance. The obligation to examine the site did not impose upon him the duty of making a diligent inquiry into the history of the locality with a view to determining, at his peril, whether the sewer specifically prescribed by the government would prove adequate. The duty to check plans did not impose the obligation to pass upon their adequacy to accomplish the purpose in view. And the provision concerning contractor’s responsibility cannot be construed as abridging rights arising under specific provisions of the contract.[iii]

In the late 1950’s, due to the efforts of forward-thinking, industry leaders, SCOTUS’s rationale in U.S. v. Spearin, would be codified, as Louisiana law.[iv]

In the State of Louisiana, a civil jurisdiction, we define law to include legislation and custom.[v]  In the 1950’s, law was defined as “a solemn expression of legislative will.”[vi]  Louisiana is unique, in that our law is primarily based upon statutes and codes, such as the Louisiana Civil Code; the Louisiana Revised Statutes, including the Louisiana Civil Code Ancillaries, published in Title 9 of the Louisiana Revised Statutes; and the Louisiana Code of Civil Procedure.

The aforesaid legislative efforts were brought to fruition in Acts 1958, No. 183, § 1, enacting La. R.S. 9:2771, more-informally-known as the Design Sufficiency Law.  That provision establishes that a contractor, who complies with the plans and specifications furnished to it, for which it did not make or cause to be made, is immune from liability for the destruction, deterioration of, or defects that may arise in its work, whether during or after completion of its work.  As currently amended, La. R.S. 9:2771 provides:

No contractor, including but not limited to a residential building contractor as defined in R.S. 37:2150.1(9), shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration, or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration, or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor.[vii]

Immunity is established from proof of compliance with the plans and specifications, alone;[viii] and La. R.S. 9:2771 “does not require that the contractor prove the fault or insufficiency of the plans or specifications.”[ix]

After the enactment of La. R.S. 9:2771 in 1958, it should come as no surprise that owners, especially public owners, immediately attempted to disclaim; disavow; and/or avoid La. R.S. 9:2771, by inserting contract language to the contrary in their bid specifications. So in 1960, those same industry leaders passed the first amendment to La. R.S. 9:2771, adding the third sentence: “The provisions of this Section shall not be subject to waiver by the contractor.”[x]  Thus, La. R.S. 9:2771 serves as an embodiment of Louisiana public policy.

The design sufficiency law has stood the test of time and, further, confers immunity to the contractor for the installation of materials specified by the owner.[xi]  However, as noted, in a circumstance where a contractor assists in making, or causing to be made, the plans and specifications, the immunity may not apply.[xii]

It is, admittedly, amazing how often owners, especially public owners, even today, some 60 years later, attempt to shift the risk of the sufficiency of the plans and specifications to the contractor, whether directly or through devices that have that effect.  Freedom of contract is not without limits; and contracts entered into, in violation of public policy, are null and void and unenforceable.[xiii] Ignoring a provision of law, that so limits the rights to contract away the owner’s risk, spawns unnecessary disputes and costly litigation. The industry must redouble its efforts to educate its members and design professionals, as well as other owner representatives; stand against those who would seek to erode these basic rights; and protect the industry’s longstanding interest, in the proper scope and interpretation of Louisiana law and public policy.

Russel W. Wray, partner, and Jacob A. Altmyer, associate, Wray & Pierce, L.L.P © 2018. Questions or comments can be directed to Mr. Wray, at russwray@wraylaw.com, or Mr. Altmyer, at jacobaltmyer@wraylaw.com.  Visit www.wraylaw.com for further information. Law office located in St. Francisville, La.

This article is informational and should not be used as legal advice.  One should independently consult with an attorney, prior to relying on any of the information provided herein.

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[i]           With regard to the Louisiana Supreme Court’s adoption of the Spearin doctrine, see, e.g., Louisiana Shipbuilding Co. v. Bing Dampskibsaktieselskab, 158 La. 548, 104 So. 364 (1925); Keller Constr. Corp. v. George W. McCoy & Co., 239 La. 522, 540, 119 So.2d 450 (1960).

[ii]           U.S. v. Spearin, 248 U.S. 132, 39 S.Ct. 59, 63 L.Ed. 166 (1918).

[iii]          U.S. v. Spearin, 248 U.S. 132, 137, 39 S.Ct. 59, 61, 63 L.Ed. 166 (1918) (emphasis added and footnotes omitted).

[iv]          U.S. v. Spearin, 248 U.S. 132, 39 S.Ct. 59, 63 L.Ed. 166 (1918).

[v]           La. C.C. art. 1 (“The sources of law are legislation and custom.”).

[vi]          See Article 1 of the Louisiana Civil Code of 1870; see also La. C.C. art. 2.

[vii]         See La. R.S. 9:2771 (as amended by Acts 1960, No. 84, § 1, and by Acts 2001, No. 179, § 1).

[viii]        See, e.g., Pittman Constr. Co. v. City of New Orleans, 178 So.2d 312 (La.App. 4 Cir. 1965); City of Covington v. Heard, 428 So.2d 1132 (La. App. 1 Cir. 1983); Sisters of the Good Shepard v. Quinn Constr. Co., 225 So.2d 225 (La.App. 4 Cir. 1969); Bernard v. State Dept. of (Highways) Transp. & Development, 93-1376 (La.App. 3 Cir. 6/01/94), 640 So.2d 694.

[ix]          See, e.g., City of Covington v. Heard, 428 So.2d 1132, 1134 (La.App. 1 Cir. 1983); see also Pittman Constr. Co. v. City of New Orleans, 178 So.2d 312 (La.App. 4 Cir. 1965); Sisters of the Good Shepard v. Quinn Constr. Co., 225 So.2d 225 (La.App. 4 Cir. 1969); Bernard v. State Dept. of (Highways) Transp. & Development, 93-1376 (La.App. 3 Cir. 6/01/94), 640 So.2d 694.

[x]           See Acts 1960, No. 84, § 1.

[xi]          See City of Covington v. Heard, 428 So.2d 1132 (La. App. 1 Cir. 1983); see also Sisters of the Good Shepard v. Quinn Constr. Co., 225 So.2d 225 (La.App. 4 Cir. 1969).

[xii]         See New Orleans Unity Soc. of Practical Christianity v. Standard Roofing Co., 224 So.2d 60 (La.App. 4 Cir. 1969) (serving as an example of where the contractor was involved in the preparation of the plans and specifications and, thus, was not entitled to immunity).

[xiii]        See, e.g., La. C.C. art. 7; La. C.C. art. 1971.