There is an affirmative defense referred to as betterment in construction defect cases. This is a defense raised to challenge the amount of damages incurred by the plaintiff when the plaintiff performs repairs BETTER than the original design / contract documents. See Grossman v. Sea Towers, Ltd., 513 So.2d 686, 688 (Fla. 3d DCA 1987) (“It is significant on this point that neither the architectural specifications nor the structural design was deficient for the original intended purpose. The proper measure of damages, therefore, should have been the amount necessary to restore the deck to its original condition….”).
Say the contract documents called for cpvc water piping and as a result of an installation failure, the cpvc piping was replaced with copper piping. A claim was asserted against the plumber for the costs incurred to replace cpvc piping with the copper piping. But, the contract documents only called for cpvc piping which was an acceptable design requirement. So that fact that this piping was replaced with copper piping constitutes betterment or a repair better than the contract documents. The plumber should not be responsible for this betterment as it would give the plaintiff (such as an owner) a windfall since it is getting a repair better than what it originally bargained for in the contract documents. Rather, the damages should be to restore the cpvc piping to its original planned condition.
The theory is the repairs are not intended to constitute a windfall to the plaintiff with repairs better than what the contract documents called for. The defendant is only required to perform work pursuant to the contract documents because that is what it was paid to perform. It was not paid to perform work that exceeds the contract documents; thus, costs of repair work that exceeds the contract documents are “unreasonable” and should constitute betterment. The magic word is “unreasonable” as the plaintiff will and should establish in its case-in-chief that the repairs it performed were reasonable and cost effective in light of the given defect or failure.
For example, in Arch of Illinois, Inc. v. S.K. George Painting Contractors, Inc., 288 Ill.App.3d 1080 (Ill. 5th DCA 1997), a factory owner sued a painting contractor for defective painting. The painter was only to apply one coat of primer and one coat of enamel for a contract price of $59,000. After completion, the paint started to peel. The owner put on evidence that the bids to repair the work were between $120,000 to $248,000 to sandblast the peeling paint, prime the surface, and repaint the factory. The painter argued betterment. The appellate court, however, applied this logic: “If a paint job is substantially or completely defective and peeling, then completely undoing the faulty work so that the structure can be repainted does not amount to unreasonable destruction of the contractor’s work.” Arch of Illinois, supra, at 1084.
In construction defect disputes, whether a plaintiff or defendant, consider the affirmative defense of betterment. This consideration will help a plaintiff in putting on its case-in-chief and a defendant in putting on evidence to specifically challenge unreasonable / better repair costs.
Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.