Further Erosion of Spearin

This one is for construction lawyers who represent owners. A recent case out of the Ohio Court of Appeals overturned a large delay damage award to a contractor, whose claim was based on defective plans and specs. The trial court had awarded the contractor $800,000 in delay damages based on the Spearin doctrine (the owner's implied warranty of plans and specs), having been persuaded in part by the fact that the contractor had submitted 176 RFIs and the architect had issued over 50 field work orders and ASIs during a period of just three months.

The Court of Appeals, in overturning the trial court, said this: "Spearin does not stand for the proposition that owners, by virtue of having furnished the plans and specifications for the job, will indemnify and hold contractors harmless for all delays occasioned by changes in the work...not within the complete control of the contractor. This is true even where, as here, the contractor issued a large number of RFIs."

Even better for owners, the Court went on to say: "The Court finds that the record fails to demonstrate that the substantive concerns addressed in any one RFI or group of RFIs rendered the owner-furnished plans unbuildable or otherwise wholly inadequate to accomplish the purpose of the contract." (emphasis added).

This is a high hurdle for contractors to get over, and it is music to the ears of owners and architects! The case is Dugan & Meyers Const. Co., Inc. v. Ohio Dept. of Adm. Servs., 834 N.E.2d 1 (Ohio Ct. App.2005)