EXPRESS WARRANTY TRUMPING SPEARIN’S IMPLIED WARRANTY

Posted on February 27, 2022February 27, 2022 by Edward Garber

Be mindful of that express warranty provision in your contract. It could result in an outcome that you did not consider or factor when submitting your proposal or agreeing to your contract amount.

An express warranty could have the effect of eviscerating the argument that you performed your scope of work pursuant to the plans and specifications. In other words, the applicability of the Spearin doctrine could be rendered moot based on express warranty language in your contract that is fully within your control because you do not have to agree to that language.

Under the Spearin doctrine:

[W]hen a ‘contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specification.’ Spearin and its progeny set forth a default rule of fundamental fairness that when a general contractor requires a subcontractor to follow certain plans and specifications, the general contractor impliedly warrants that those plans and specifications are ‘free from design defects.’ Put simply, Spearin protects subcontractors from liability for simply following the general contractor’s direction and requirements.

However, the implied warranty set forth in Spearin and its progeny may be overcome by express agreement. Where a general contractor and subcontractor expressly agree to allocate the risk of a defective product to the subcontractor, that express agreement must prevail over Spearin’s implied warranty.

Lighting Retrofit International, LLC v. Consellation NewEnergy, Inc., 2022 WL 541156 (D. Md. 2022) (internal citations omitted).

Does this underlined language above mean that an express warranty provision in a contract can trump the Spearin doctrine’s implied warranty of building according to the plans and specifications? According to this decision in Lighting Retrofit International, the answer is a resounding yes!

This case involved energy savings construction improvements to a federal prison in Florida, although the dispute was decided under Maryland law (likely due to a choice of law and venue provision in a subcontract). A subcontract between the prime contractor and a subcontractor was predicated on LED retrofit kits from a specific manufacturer for certain exterior lights. There was no other manufacturer that offered such retro kits on the market.

The subcontract contained a very detailed express warranty provision:

6.8 Warranties. Subcontractor warrants that (a) all services will be provided by qualified, competent and professional persons in a timely, good and workmanlike manner and with a degree of skill and care in conformity with industry standards, (b) all equipment will be free from defects and installed in accordance with manufacturer’s specifications, and (c) all services and equipment shall be in compliance with all applicable laws, licenses, and permits. Subcontractor will obtain vendor/ manufacturer/supplier warranties and pass through all such warranties to both Constellation [prime contractor] and Constellation’s Customers. Subcontractor shall, if available, with the prior written approval of Constellation, obtain extended warranties, and pass through all such extended warranties to both Constellation and Constellation’s Customers. The Subcontractor shall, at its sole expense interface, and act as liaison with Subcontractor-purchased materials manufacturers, vendors, and suppliers to resolve problems and pursue warranty claims on behalf of Constellation and Constellation’s Customers. In the event a manufacturer, vendor, or supplier of such materials ceases operations or is otherwise unable to meet its warranty obligations to Constellation or Constellation’s Customers, Subcontractor agrees to provide or secure, at its sole expense, for Constellation and Constellation’s Customers, all such warranties including but not limited to any required spare parts.

The warranties set forth herein shall continue for a period of one (1) year after the date of Constellation’s final acceptance of the work or Customer’s beneficial use, whichever is later, unless a longer period is set forth in the Contract Documents. Unless otherwise provided on the Scope of Work, if the services and materials provided by Subcontractor hereunder do not conform to the warranties included herein, then Subcontractor will (at its sole cost and expense) do any of the following upon Constellation’s request: (a) re-perform the services, or repair or replace the equipment, in a satisfactory manner that conforms to the terms of this Subcontract, (b) pay Constellation any money damages that Constellation owes as a result of nonconformance and refund the portion of the cost hereunder which is attributable to such nonconformance, (c) if Constellation chooses to correct the breach by re-performing the services or repairing or replacing the equipment, (by itself or through another subcontractor), pay Constellation any expenses Constellation incurs itself or pays a third party. This warranty shall not in any way limit any standard warranties provided by Subcontractor to its customers generally.

The LED retrofit kits failed miserably resulting in a dispute between the prime contractor and subcontractor. The subcontractor was not paid and filed a lawsuit. The prime contractor had to hire another subcontractor to ultimately remediate the failure and countersued.

The subcontractor argued under the Spearin doctrine, i.e., that the prime contractor impliedly warranted the LED retrofit kits which the subcontractor furnished for the project.

The issue was whether the express warranty provision above should supersede Spearin’s implied warranty. In reviewing this issue, the Court noted cases in jurisdictions other than Maryland where an express warranty trumped Spearin’s implied warranty; however, there was a case from Missouri where Spearin’s implied warranty trumped an express warranty due to a circumstance outside the party’s control. See Lighting Retrofit International, supra, at *6.

Yet, even giving the subcontractor the benefit of the doubt, the Court noted this was NOT an issue beyond the subcontractor’s control.

While the fact the retrofit kids failed was beyond the subcontractor’s control, the subcontractor was free to negotiate the express warranty provision in its subcontract – the express warranty provision was within its control: “[E]ven assuming [the prime contractor] forced [the subcontractor] to use that particular product, [the subcontractor] freely and willingly agreed to the unequivocal warranty provisions in the Subcontract – a conscious choice that was, undoubtedly, within [the subcontractor’s] control.” Lighting Retrofit International, supra, at *6. “Therefore, an implied warranty that exists to prevent a general contractor from unfairly taking advantage of a subcontractor for merely following the general contractor’s directions must yield where a sophisticated subcontractor expressly agrees to shoulder the risk.” Id.

Is this a harsh outcome? You betcha! And it’s a harsh outcome form an express warranty provision that contains language that exists in some fashion in many contracts. This outcome goes to the point that it all starts with your contract and what you are agreeing to on the frontend.

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.

SPEARIN DOCTRINE AS AN AFFIRMATIVE DEFENSE

Posted on November 26, 2016November 8, 2024 by Edward Garber

The Spearin doctrine, referred to as the implied warranty of constructability doctrine, is oftentimes utilized as an affirmative defense by a contractor being sued for construction defects. Under the Spearin doctrine (recognized in the government contract setting), a contractor is NOT liable for defects in the plans and specifications furnished by the owner if the contractor constructs the project pursuant to the plans and specifications. This is because the owner impliedly warrants the constructability of the plans and specifications it furnishes to the contractor. Hence, the contractor should not be liable for defective construction caused by the owner furnishing defective plans and specifications.

As with any affirmative defense, the contractor asserting the Spearin doctrine has the burden to prove the merits of the defense. Specifically, the contractor has the burden to prove that there was an error in the plans or specifications and that such error was the proximate cause of the defective construction. The contractor needs to prove this in order to sustain the Spearin doctrine as an affirmative defense. See, e.g., Underwater Engineering Services, Inc. v. Utility Board of the City of Key West, 194 So.3d 437, n. 4 (Fla. 3d DCA 2016) (“By raising this defense [of the Spearin Doctrine] Underwater [contractor] had the burden to prove not only that there was a defect in the specifications, but that the defect in the specifications was the proximate cause of the failure of the eight [concrete] collars.”); see also Rick’s Mushroom Service, Inc. v. U.S., 521 F.3d 1338, 1344-45 (Fed.Cir. 2008) (“‘When the government provides a contractor with defective specifications, the government is deemed to have breached the implied warranty that satisfactory contract performance will result from adherence to the specifications, and the contractor is entitled to recover all of the costs proximately flowing from the breach.’”) quoting Essex Electro Eng’rs, Inc. v. Danzig, 224 F.3d 1283, 1289 (Fed.Cir.2000).

Asserting the Spearin doctrine as an affirmative defense is one thing, but proving it is another. If relying on this defense, make sure to prove through expert testimony that there was (i) a defect in the plans or specifications furnished by the owner and (ii) that this defect proximately caused the defects or failures being asserted by the plaintiff (e.g., owner).

DIFFERENCE BETWEEN A DESIGN AND PERFORMANCE SPECIFICATION AND THE SPEARIN DOCTRINE

Posted on November 3, 2013November 3, 2013 by Edward Garber

The difference between a design specification and a performance specification is important under what is known as the Spearin doctrine–the implied warranty of constructability doctrine–based on the United Supreme Court case U.S. v. Spearin, 248 U.S. 132 (1918). The Spearin doctrine is recognized in Florida. See Martin K. Eby Const. Co., Inc. v. Jacksonville Tranp. Authority, 436 F.Supp.2d 1276 (M.D.Fla. 2005).

Under the Spearin doctrine, a general contractor is not liable for defects in the plans and specifications furnished by the owner if it constructs the project pursuant to the plans and specifications. This is because the owner impliedly warrants the plans and specifications that it furnishes to its contractor. The Supreme Court in Spearin stated:

“[I]f the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications. This responsibility of the owner is not overcome by the usual clauses requiring builders to visit the site, to check the plans, and to inform themselves of the requirements of the work….”

Travelers Cas. And Surety Co. of America v. U.S., 74 Fed.Cl. 75, 89 (2006) citing Spearin, 248 U.S. at 136.

There are many cases discussing the application and limitations of the Spearin doctrine arising from federal government contract law. What is important is that the Spearin or implied warranty of constructability doctrine applies to design specifications and does not apply to performance specifications. See Martin K. Eby, 436 F.Supp.2d at 1308 (“The purpose of the Spearin doctrine is to allow contractors to recover when the government [owner] does not fulfill the responsibility it has undertaken in preparing and supplying design specifications.”)

So, what is the difference between a design and performance specification? The difference between these two types of specifications is best described as as follows:

“Design specifications dictate the ‘how’ governing a contractor’s tasks, in contrast to performance specifications, which concern the ‘what’ that is to be done…The relevant inquiring [as to the distinction between these specifications] concerns quality and quantity of the obligations that the specifications impose. Hence, detailed measurements, tolerances, materials, i.e., elaborate instructions on how to perform the contract qualify as design specifications. In other words, where the specifications are described in precise detail and permit the contractor no discretion, they are design [specifications]. In contrast, where the specifications set forth simply an objective or standard and leave the means of attaining that end to the contractor, they are performance [specifications].”

Travelers Cas. And Surety Co. of America, 74 Fed.Cl. at 89; See also Martin K. Eby, 436 F.Supp.2d at 1308, n.47 (“Design specifications explicitly state how the contract is to be performed and permit no deviations. Performance specifications, on the other hand, specify the results to be obtained, and leave it to the contractor to determine how to achieve those results.”) (internal quotations and citation omitted).