Litigation of Construction Defect claims often brings together an admixture of product manufacturers, product sellers/distributors, and product installers. While these groups may coordinate and work together in the field, the joint-interests and common ground can be challenged in the context of a lawsuit.
The divergence of interest among these parties arises from several factors:
- The statutory and common-law framework governing liability to the Owners may differ in ways that create finger-pointing and differing critical interests to protect (“hills to die on”). For example:
- The elements of proof for construction defects versus product liability may create a conflict of interest among the defendants.
- The reporting and regulatory schemes that affect manufacturers of consumer products may motivate a defense strategy that implicates installation and “proves the Plaintiff’s case.”
- The differing applications of joint-and-several liability influence cooperation.
- The potential of inconsistencies between governing building codes, adopted industry standards and manufacturer’s installations instructions may create chaos that increases the overall value of the claim.
- Contractual relationships between the parties may attempt to shift or allocate risk and responsibility in ways that are contrary to joint interest of the group.
- On-going business relationships may over-ride legal positions and put limits on defense strategies.
This Reference Guide is intended to provide a tool for anyone who manages claims and risk in the context of construction—whether a general contractor, trade/installer, seller or manufacturer. Specifically, this will provide a state-by-state summary of three questions:
- When is a contractor, particularly a sub-contactor or installer, a “seller” of a product and, thus, exposed to strict product liability or other product-related liability?
- Under what circumstances can an installer seek indemnity against the manufacturer of a defective product?
- What are the Statutes of Limitations and Statutes of Repose for products manufacturers and product installers?
While these are not all of the considerations that will inform legal strategy in a construction/product defect lawsuit, these are legal foundations from which an effective strategy can be developed.