Question 1

I'm an owner with defective work — should I sue the GC or the sub directly?

Accepted Answer

Usually start with the GC, the contracting party. The GC's flow-down obligations to subs pull them in via cross-claim or third-party complaint. Direct-against-sub claims face privity, economic-loss rule (especially in Florida), and statute-of-limitations defenses. Filing against the GC first usually gets the right party at the table.

Question 2

How quickly do I need to file a mechanics' lien?

Accepted Answer

Alabama: four months from last work for original contractors; six months for materialmen and non-privity subs. Florida: 90 days from final furnishing for the lien itself, plus separate Notice-to-Owner deadlines as short as 45 days for non-privity claimants. Missing the deadline kills the lien remedy.

Question 3

Can we recover delay damages without an explicit delay clause in the contract?

Accepted Answer

Often yes — delay damages can flow from breach even without an express delay clause. Proof requires critical-path scheduling, daily logs, RFIs, and expert testimony. A 'no damages for delay' clause is unenforceable in many jurisdictions where delay was caused by active interference, fraud, bad faith, or fundamental breach.

Question 4

What's the difference between liquidated damages and actual delay damages?

Accepted Answer

Liquidated damages are a pre-set per-day amount the contractor owes for delay beyond substantial completion — enforceable if actual damages were hard to estimate at contracting AND the LD amount is reasonable, not a penalty. Actual delay damages are unliquidated — extended general conditions, financing, lost rent — proven at trial.

Question 5

What's the Spearin doctrine and when does it apply?

Accepted Answer

United States v. Spearin (1918) holds that an owner who provides plans and specifications impliedly warrants their adequacy. A contractor that builds in compliance with defective owner specs isn't liable for the resulting failure. Spearin applies on design-bid-build contracts; less so on design-build. Many defect-defense cases live or die on Spearin.

Question 6

I'm a sub on a federal project and I haven't been paid. What's a Miller Act claim?

Accepted Answer

The Miller Act (40 U.S.C. § 3131) requires prime contractors on federal projects over $150K to post payment and performance bonds. Non-privity subs and suppliers can sue on the payment bond if unpaid, with 90-day notice-to-prime for non-privity claimants. State Little Miller Acts cover state projects similarly.

Question 7

How do construction warranties work?

Accepted Answer

Three layers usually. Express written warranties (typically a one-year general plus longer component-specific). Manufacturer warranties for products and equipment, often passed through. Implied warranties — habitability, fitness, merchantability — often limited or waived by contract. The first analysis is which layer covers the defect, who provides it, and whether it has run.

Defects, delays, and subcontractor disputes

About this practice

From the Library — Construction Disputes writing