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Construction Defect Defenses: Loss Mitigation, Economic Waste, Right to Repair, Betterment Doctrine

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, August 3, 2022

Recorded event now available

or call 1-800-926-7926

This CLE course will advise construction counsel on the most common defenses to construction defect claims brought against general contractors and subcontractors. The panel will advise counsel on reducing clients' exposure through sound management practices and careful contracting practices. The panel will discuss best practices in limiting liability and how courts are likely to assess the reasonableness of repairs and damage costs.


Construction contractors and subcontractors are subject to complaints about the quality of their work. Project managers and construction executives should be aware of the defenses that may be available if a customer complains that work is defective.

Every party aggrieved by a construction defect owes a duty to mitigate damages. If an owner does not seek bids, the contractor may have a defense based on the owner's failure to mitigate damages.

Typically, if there is no express provision in the contract, then contractors do not have an automatic right to return to remedy defects, and the owner can employ anyone to complete remedial work. If there is an express right to repair provision, such as a defects liability period giving the contractor a period, such as 12 months, during which the contractor must return and remedy defects, it could be in both parties' interests for the contractor to return.

Many complaints about construction work are attributable to poor design. In general, contractors and subcontractors who build following the design furnished by the owner are not liable for the results, a concept known as the Spearin doctrine. Project managers and superintendents should review the progress and updated plans and schedules to verify that work is proceeding per the owner-furnished design.

Sometimes the repairs specified by owners include elements not called for in the original design. These additional elements would have cost the owner more money up front if the owner had included them in the original design documents. The "betterment" doctrine recognizes that it is unfair for an owner to get additional elements as part of a damage claim when the owner would have had to pay upfront for the omitted elements.

Listen as our expert panel discusses common construction defect defenses. The panel will address how contractors and subcontractors can reduce their exposure through sound management practices and careful contracting practices.



  1. Construction defect defenses
    1. Loss mitigation
    2. Notice and opportunity to cure
    3. Spearin doctrine
    4. Betterment doctrine
    5. Discharge by prior material breach
    6. Spoliation of evidence
    7. Lack of causation
    8. Fault of others
    9. Acceptance
    10. Exculpatory provisions
  2. Best practices


The panel will discuss these and other relevant topics:

  • How is loss mitigation handled when a defective extension is demolished and rebuilt?
  • How are the Spearin and betterment doctrines applied to construction defect claims?
  • What are best practices for contractors to include in contracts to mitigate the most significant risks?


Colon, Y. Lisa
Y. Lisa Colon

Saul Ewing

Ms. Colon advises on legal issues involving public and private construction projects and real estate development, along...  |  Read More

Kadlec, Terence
Terence Kadlec, PE

Director of Specialty Practices
Envista Forensics

Mr. Kadlec practices as a forensic engineer and expert witness, provides mentorship and technical oversight to...  |  Read More

Perrone, Patrick
Patrick J. Perrone

K&L Gates

Mr. Perrone concentrates his practice on construction and product defect matters. He is an experienced trial attorney...  |  Read More

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