What are the most commonly claimed issues in construction defect litigation?

By: David M. McLain

As a lawyer that has spent his career defending against construction defect claims, one of the most common questions I get when counseling clients regarding risk management is: “What are the most commonly claimed issues in construction defect litigation?” Until very recently, my answer to this question has been based on my own experience and knowledge on the subject, and only vaguely reliant on empirical data.

Recently, two engineers, Elizabeth Brogan and William McConnell, along with Caroline Clevenger, an associate professor at the University of Colorado, Denver, wrote a paper entitled “Emerging Patterns in Construction Defect Litigation: A Survey of Construction Cases.” The authors analyzed 41 multifamily construction defect cases litigated in 2015, 2016 and 2017, mostly in the Denver metro area.

The authors classified the 55 most prevalent alleged defects into the following categories: structural issues; civil issues; building envelope issues; roof issues; deck, balcony and porch issues; fire protection issues; and miscellaneous issues. The authors then identified the 10 most commonly claimed construction defects, which occurred in over half of all of the cases analyzed. These defects included:

Civil Issues:

• Inadequate grade adjacent to foundation (68%)
• Inadequate slope grading (improper management of concentrated flows) (61%)
• Flatwork or structures inhibiting drainage (59%)

Building Envelope Issues:

• Non-compliant clearance between siding, stone veneer or stucco and hard surfaces or grade (73%)
• Non-compliant weep mechanism in stone or stucco at horizontal terminations (71%)
• Non-compliant flashing (base, head, sill, clearance, blocked or improperly sloped) (68%)
• Improper water table construction (rowlock, stone, stucco, EIFS, precast or other) (71%)
• Non-compliant moisture management integration (weather resistive barrier, self-adhered membrane or other) (71%)
• Non-compliant isolation to penetration and dissimilar materials (76%)

Roof Issues:

• Non-compliant roof flashing (diverter, rake, head, chimney, air handling units, jacks, etc.) (54%)

The authors further investigated each of these issues to describe specifically what the homeowners associations claimed to be non-compliant; the potential damage, issue or concern with the non-compliance; the code allegedly violated; and the repair proposed by the homeowners associations’ experts. Needless to say, this paper is full of valuable information for any home builder, developer, contractor, architect or subcontractor who is interested in improving its risk management program.

To the extent that you are already working with a third-party QA/QC provider during the design and construction phase of your projects, or are considering doing so, I think it would make sense to review this with those inspecting your projects to ensure that there is a high correlation between the items for which they are inspecting and those things that appear with the most frequency in construction defect litigation.

For additional information or about construction defect litigation in Colorado, generally, you can reach David M. McLain by telephone at (303) 987-9813 or by e-mail at mclain@hhmrlaw.com.