Source: http://www.lexology.com, April 21, 2016
By: John R. Lockard, Vandeventer Black LLP
The Supreme Court of Virginia recently addressed construction contractors’ potential liability for damages caused by design defects. In William H. Gordon Associates, Inc. v. Heritage Fellowship Church, a church hired an engineering firm to design a rain tank system to provide storm water management for a new sanctuary. The system was designed to be buried underground and paved over for use as a parking lot.
Shortly after installation, the rain tank and parking lot above it collapsed. The church sued the general contractor and engineer for damages caused by the collapse, including the cost to install a new storm water management system. The trial court found that the collapse was caused solely by the engineer’s failure to design the system in accordance with the applicable standard of care.
On appeal, the engineer claimed that under the terms of the construction contract, the contractor assumed liability for the failure because it incorporated the engineer’s design into its submittals. The Supreme Court of Virginia disagreed, finding that the general contractor was not liable since it built the system in accordance with the engineer’s plans. In reaching its decision, the Court noted that the design was not a “performance-type” specification that required the general contractor to perform additional design work to provide a finished product. In fact, the contract specifically prohibited the contractor from making any design changes without the engineer’s express written consent.
Although this decision reinforces the legal rule known as the Spearin Doctrine, which provides that a contractor is not liable to an owner for loss or damage resulting solely from defects in the plans, design, or specifications provided to the contractor, it also suggests that in Virginia, there may be exceptions to the Spearin Doctrine where a contractor:

• Agrees to accept liability for the design;
• Makes unauthorized changes to the design; or
• Performs its work based on a “performance” specification or otherwise provides design services for the project

To protect themselves against claims relating to design defects, construction contractors should not deviate from approved designs without express authorization from the owner and designer. Additionally, contractors always should employ licensed design professionals whenever design work—including design changes—is necessary.