Contractor Right to Repair Defective Construction Work

Does a contractor have the right to cure defective construction work?

Where a contract requires notice of a defect and an opportunity to cure, an owner must give a contractor proper notice of their defective work and an opportunity to repair that defective work.

In Underwater Engineering Services, Inc. v. Utility Bd. of City of Key West 194 So. 3d 437, 441 (Fla. Dist. Ct. App. 2016), the Utility Board of Key West contracted Underwater Engineering Services, Inc. to perform maintenance on 57 pillars of the seven-mile bridge in the Florida Keys.  The contract between the Utility Board and Underwater had a defect assessment provision, which required the Utility Board to give notice of any defects to Underwater and to give them an opportunity to cure.  After completion of the project, the Utility Board discovered defects in the concrete coating of the pillars.  Without notifying Underwater, the Utility Board hired a contractor to repair Underwater’s defects, then sued Underwater for failing to properly pour eight concrete collars according to the project specifications.  Underwater raised a defense that the Utility Board was required to give them notice of the defect and an opportunity to cure the defect before engaging someone else to repair the collars.

The trial court held that Underwater was liable for the defects.  On appeal, the Florida Third District Court of Appeal reversed, holding that where the contract requires notice and an opportunity to cure, Underwater must have been afforded the opportunity to repair any of the work that was not conforming to specified requirements.  As a result, the Utility Board could not recover for the cost incurred to fix Underwater’s defective work.

Therefore, it is very important for an owner to provide a contractor with notice and an opportunity to cure its defective work where the contract provides for this right.  If an owner subsequently repairs the defect without giving the contractor notice and an opportunity to repair, the owner may not be able to recover the amount expended for the repairs from the contractor.