One of These Things Is Not Like the Others

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:

  1. 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:
    1. The elements of proof for construction defects versus product liability may create a conflict of interest among the defendants.
    2. 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.”
    3. The differing applications of joint-and-several liability influence cooperation.
    4. 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.
  2. 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.
  3. 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:

  1. 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?
  2. Under what circumstances can an installer seek indemnity against the manufacturer of a defective product?
  3. 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.