IS A GENERAL CONTRACTOR OR LICENSED HOMEBUILDER LIABLE FOR REPAIR WORK CONDUCTED BY ITS SUBCONTRACTORS

IS A GENERAL CONTRACTOR OR LICENSED HOMEBUILDER LIABLE FOR REPAIR WORK CONDUCTED BY ITS SUBCONTRACTORS

In Franklin v. Mitchell, the defendant was a licensed homebuilder who agreed to construct plaintiff’s residence. 2011 Ala. Civ. App. LEXIS 234 (Ala. Civ. App. Sept. 2, 2011). The construction was completed by October 2001. In April 2006, the plaintiff observed that the home’s floors were sagging in several areas. In March 2007, a home inspector, hired by the plaintiff, investigated the problems and opined that the sagging floors were a consequence of moisture from condensation on air-conditioning boots and the floor decking. The plaintiff immediately notified the defendant of the problems and the defendant agreed to repair the condensation problems.

In April 2007, the defendant hired two subcontractors who replaced part of the subfloor while bracing other parts of the subfloor. Ultimately, the plaintiff was not satisfied with the work and asked that additional repairs be performed. The defendant declined on grounds that the one year warranty period had expired and all repair work had been gratuitous.

The plaintiff had a second home inspection performed in March 2008, which indicated defects in the home’s brick work. The plaintiff filed suit on February 11, 2009, claiming negligent construction and subsequent negligent repairs. The defendant answered and filed third-party claims against the subcontractors that had performed the work.

The trial court granted summary judgment to the defendant on grounds that the plaintiff’s negligence claims were barred by the statute of limitations and the subsequent negligent repairs were not performed by the defendant, but were performed by independent contractors. The plaintiff appealed.

The Alabama Court of Civil Appeals held that the repair work was performed by independent contractors, at the defendant’s request, and that the plaintiff had failed to present evidence indicating that the defendant controlled the manner by which the independent contractors performed their tasks. The defendant did not supply the materials used in the repair work and was not present when the repair work was performed.

For repair work undertaken by an independent contractor, outside of the express warranty period, a general contractor may avoid liability for work that it did not perform. It would logically follow that a general contractor, in similar circumstances, would be liable only for breach of warranty claims where repair work was conducted by an independent contractor within the express warranty period. Interestingly, the Court also held that failed repair work that does not cause additional damages to the home will not support a negligence action.