Construction contracts usually include an express warranty of workmanship and materials. The contractor promises to replace or repair, at no cost to the project owner, any defect that appears within one year of completion. While this seems straightforward, it actually leads to a common argument. Was the problem of which the owner complains actually caused by defective workmanship or materials?

A recent decision in a federal appellate court addressed this issue. Vinyl floor tiles in a hospital surgical suite started lifting and separating before the owner even took occupancy. Repeated repairs by the contractor, before and after project acceptance, failed to solve the problem. The owner eventually brought in another company to replace the tiles. The owner sued the contractor for breach of warranty in order to recoup the cost.

At trial, the owner was unsuccessful in introducing expert opinion regarding the cause of the tile failure. Nonetheless, the jury awarded the owner significant damages. The contractor appealed, arguing there was no evidence to support the award. The appellate court disagreed. Expert opinion was not necessary to prove causation. The jury could use common sense to infer that the problem resulted from defective workmanship or materials.

Other cases this week involved a mechanic’s lien where some of the work was allegedly defective and a proposal that was delivered after the time deadline. The lien could attach unless the defects were so serious that the contractor failed to substantially perform its contractual obligations. And late delivery of the proposal was not excused by the “government control” exception.