The Hidden Trap In Construction Defect Cases

I’ve previously written about the need for expert testimony in construction defect cases. It’s not enough to just point at something that’s wrong with a house and say it’s the builder’s fault. An expert witness, often an engineer or some other expert in the construction field, must identify what’s wrong and explain how the issue shows that the builder or contractor did not comply with applicable building and construction standards. In most construction defect cases, the failure to have such expert evidence is fatal to the claim and will result in its dismissal. There’s no presumption that an issue with a house is the builder’s fault or that, even if the builder is responsible for the issue, that the problem demonstrates that the builder failed to comply with applicable building and construction standards.

There’s an additional component to the expert requirement, what I call a hidden trap, that many homeowners miss when trying to prove a construction defect claim, especially one involving water intrusion. It’s not enough for an expert witness to identify possible causes for an issue, such as water intrusion through a foundation wall. The homeowner also has to establish that the possible cause actually exists. It can’t be a speculative or hypothetical cause of the court will dismiss the case.

This hidden trap was the topic of the Iowa Court of Appeals’s recent decision in McIntosh v. Classic Builders. The McIntoshes bought a home built by Classic Builders. After the McIntoshes purchased the house, water seeped into the basement a number of times, damaging some of the McIntoshes’ personal belongings. To prevent further problems and damage, the McIntoshes incurred significant expenses to waterproof the basement.

The McIntoshes sued Classic Builders, seeking damages related to the basement flooding issues. They asserted a claim for breach of implied warranty of workmanlike construction. To support their claims, the McIntoshes procured an opinion from an expert witness who opined the flooding occurred due to “one or more of” four possible causes: (1) a crack in the city’s waterline, (2) a crack in the house’s foundation, (3) a crushed drain tile, or (4) the house being built below the water table. They did not, however, undertake any further investigation to determine whether any of those four possible causes actually existed.

The court of appeals decided that the McIntoshes failed to prove their claim because they couldn’t establish the presence of any of the possible causes their expert identified. The court expected them to take further steps to determine the existence of the various causes that their expert hypothesized might exist. That was their burden as the parties suing Classic Builders for money damages. They didn’t meet that burden, so their case was dismissed.

The lesson from the McIntosh case, especially for cases involving water intrusion issues that are often difficult to source, is that there are no exceptions to the proof requirement simply because obtaining such proof may be difficult or expensive. For water intrusion/foundation problems, that may mean tear out of interior basement walls or excavation around the foundation is necessary to get a look at the foundation and the area around it. If such efforts aren’t undertaken, or if they are but the exact cause of water intrusion is still unknown, the consequences of that fall on the suing homeowner, not the defending builder or contractor.