Co-Authored with Jacob A. Altmyer, Associated Builders and Contractors, Inc. Pelican Chapter Merit Shop Message, Winter 2018/2019
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 engineer or architect. This principle is the cornerstone, upon which the traditional relationship between the owner and contractor (as well as between the contractor and subcontractor) is built. 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] Therein, 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 thereof gives rise to liability for the extra costs incurred by the contractor.
In the late 1950’s, due to the efforts of forward-thinking, industry leaders, SCOTUS’s rationale in Spearin would be codified, as Louisiana law, and brought to fruition in La. R.S. 9:2771, known as the Design Sufficiency Law. That provision dictates that a contractor, who complies with the plans and specifications furnished to it, 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. The current expression of La. R.S. 9:2771, as amended, 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.
Immunity thereunder is established from proof of compliance alone, and La. R.S. 9:2771 “does not require that the contractor prove the fault or insufficiency of the plans or specifications.”[ii]
Even today, some 60 years later, owners attempt to shift the risk of the sufficiency of the plans and specifications to the contractor, either directly or through devices having that effect. Contracts entered into, in violation of public policy, are unenforceable under Louisiana law.[iii] 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 the professional community and stand against those who would seek to erode and ignore these basic rights.
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.
[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] 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.
[iii] See, e.g., La. C.C. art. 7; La. C.C. art. 1971.