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Who's responsible if design and install was insufficient?

We own a property in South Carolina that was a former big box (170KSF) retailer. We redeveloped the building for a large, single-floor office use. A portion of the exterior wall was rebuilt since it occurred where a former auto-repair use had been located. The architectural drawings do not include any waterproofing (sealing of densglass or EIFS to slab or flashing) for the walls built in this area. During a heavy rain, water is entering the building in these areas. When the GC was challenged as to the cause of the issue, they identified it as I have described above and also said those waterproofing methods would be "typical of these systems." We don't have real experience with latent defects (fortunately) but I'm not quite sure how to triage this one. Is it the architect's responsibility for an insufficient design? Or the GC's since they seemed to know it was atypical and perhaps should have questioned it? Or both? Then, depending on this, where does the responsibility for the repair cost fall? If the architect had designed it correctly, we would have paid for the additional (albeit minimal) cost to construct but now the cost to repair will be much more. Before I start the conversation with my partners on the issue, I would like to be armed with information on how to proceed. Your assistance with this will be very appreciated.

2 replies

Dec 11, 2019

I'll be the first to admit I'm not intimately familiar with the process for pursuing South Carolina construction defect claims. But, there are some general ideas which should apply here. First, note that it may be hard to hold a contractor accountable for an architect's mistake in the plans. This is particularly true when the difference in the plans was more along the lines of atypical than a serious deviation from accepted practices. But, an owner should generally be able to hold their architect liable if the architect made a misstep or oversight in creating the project plans. If industry standards and norms weren't adhered to which caused a defect and ultimately damage, an owner should be able to pursue recovery against their architect. Of course, before pursuing an official claim, it might be wise to first approach the architect about the defect. Providing ample evidence of the defect - pictures, third-party inspections, statements, etc. - in order to show the architect the gravity of the issue could be helpful. And, it would be cheaper and easier for everyone involved to try and resolve the matter outside of the courts. For the best clarity on what options may be available and how best to proceed, though, it would be wise to consult a local construction attorney. They'll be able to review your situation, the project documents, and any documentation regarding the defect and advise on how best to proceed.

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