A person may sue a contractor when they suffer economic loss or harm because the contractor they hired to complete a construction project fails to deliver work that is competently done and meets the professional standards of the construction trade in their location. For example, a contractor may fail to obtain the needed building permits for a project from the local government agencies that issue these permits.
Reportedly, in Washington state, breach of contract disputes often arise because of change orders. A contract may have a clause requiring that change orders be in writing. However, a clause such as this may be modified orally or even modified by conduct that implies that the parties agreed to a modification. So, change orders may lead to a lawsuit against a contractor.
A contractor may perform their work so poorly that the defects constitute a safety hazard. In this case, the owner may sue the contractor for negligence. And a person may end up suing a contractor for poor workmanship.
What Are Some Legal Claims That Can Be Filed Against a Contractor?
When suing a contractor for poor workmanship, a person may have several possible causes of action, including the following:
- A lawsuit for breach of contract;
- A lawsuit for breach of an express warranty;
- A lawsuit for breach of an implied warranty.
In order to sue for breach of contract, an owner would have to prove that they had a contract with the contractor, that the contractor owed a certain performance to the owner under the provisions of the contract, that the contractor breached their duty, or failed to perform as promised in the contract, and that the owner suffered economic harm as a result.
In order to sue for breach of an express warranty, the contract must contain an express warranty about the quality of the product the contractor would provide. Warranties may be present in the construction contract itself or in sales or marketing material.
Washington state recognizes a limited implied warranty of habitability only in contracts for the sale of new residential dwellings. The builder-vendor of a new residence must be a commercial builder. The warranty would apply only to the sale of a new residential dwelling, and the warranty would protect only the first occupants of the residential property and not subsequent owners.
Lastly, the warranty covers only fundamental defects in the structure of a residential dwelling. A fundamental defect would be a defect that makes the residence unfit for occupation by its owners. Whether the warranty applies to a particular defect would be the subject of analysis by a court.
A seller may disclaim the implied warranty of habitability in a contract for the construction of a new residential dwelling. However, to be valid, the disclaimer would have to be conspicuous. There would have to be proof that the buyer knew about it, and it would have to be something for which the contractor and buyer specifically bargained. Proving that an implied warranty of habitability was disclaimed would be challenging.
Warranties of workmanlike performance are not implied by Washington law in construction contracts. But an owner could negotiate to include one in their construction contract if they wished.
A person might sue for strict product liability for defective products used in construction but not for construction services. Still, other options are suing for intentional fraudulent misrepresentation. To succeed with a claim for intentional fraud, a person would have to prove the following:
- The residential dwelling contains a concealed defect;
- The builder knew of the defect;
- The defect presents a danger to the property or the safety of the purchaser;
- The purchaser did not know about the defect and could not have discovered it through a reasonable inspection.
A purchaser may also claim negligent misrepresentation. Both causes of action, intentional misrepresentation and negligent misrepresentation, must be proven by “clear, cogent, and convincing evidence.” This is a higher standard of proof than that which applies to other civil actions.
Can I Sue a Contractor for Negligence for Construction Defects?
It was believed that in Washington state, contractors and developers could not be held liable for negligence for construction defects. However, in a recent opinion, a Washington Court of Appeals stated that in the construction context, a contractor does owe a duty in tort independent of any contract if the contractor creates a defect that creates a significant safety risk and its professional role puts the contractor in the best position to prevent harm.
This opinion suggests that in Washington state, a contractor owes a duty of care where its work results in a defect that creates a significant safety risk in a project, and its professional role puts it in the best position to prevent harm. So, in a situation in which a contractor has done work on a project that creates a safety hazard, a person may be able to sue the contractor for negligence for construction defects.
Can I Sue a Contractor Without a Contract?
If a person hires a contractor to perform construction work for the person, the person has made a contract with the contractor. The contract may not be in writing, but a contract may be perfectly valid even if it is not in writing.
Contracts may be oral. Contracts do not even have to be expressed in words, orally, or in writing. They may be implied by circumstances or by the law, although that is unlikely in the situation in which a person hires a contractor.
There is a situation in which Washington law requires a contract to be in writing, and that is if the contract is not to be performed within one year from the date when the contract is made. This is a requirement of Washington’s Statute of Frauds.
Some states have extensive requirements for contracts regarding residential construction projects. Washington state does not require that certain provisions be included in a residential construction contract. There is one requirement, and it is that a contractor must include their name, address, and state license registration number in each contract. The penalty for failure to include this provision is payment of an administrative fine to a state agency.
There is one other provision that should be included in some contracts to secure the ability to file a mechanics lien, but this is technical and not of concern to most consumers.
However, even if a person does not have a written contract with their contractor, it is probably the case that they have an oral contract. That is because they talked about the project that the contractor was hired to complete, even though they did not express their understanding in writing. This is enough to create a valid oral contract.
It is important to note that when hiring a contractor, a person should insist on a written contract. As noted above, an adequate contract would specify the timelines for project completion, a description of the product the contractor must deliver, the schedule for payments, how progress is to be verified, and whether payments are tied to verification. Other provisions would be helpful as well.
Putting a contract into written form helps prevent misunderstandings and is also important if there is a dispute, especially one that ends up in a court of law. It is much easier to prove the terms of a contract that is in writing than it is to prove the terms of an oral contract.
If a person is hiring a contractor to do a job that is substantial, they would want a local attorney in Washington to review their contract and possibly to draft it for them.
How Do I Sue for Breach of Contract?
The District Courts are trial courts in Washington that have limited jurisdiction over criminal and civil cases. This includes civil claims for damages of less than $75,000.
Each district court in the State of Washington has a “Small Claims” division. A person may sue for damages of up to $10,000 in the Small Claims division of a Washington district court. A person may sue for up to $75,000 in a district court. If a person seeks damages of more than $75,000, they would file their claim in a Superior Court in Washington state.
How Much Does It Cost to Sue a Contractor?
It is not possible to give a specific answer to this question. How much it would cost to sue a contractor is going to depend on a number of things. If a person files their complaint in a Washington small claims court, they would not have to be represented by an attorney. This would reduce their cost of suing a contractor significantly.
If a person sues the contractor in a District or Superior Court and has an attorney to represent them, the cost would depend on how much the attorney charges and how much time the attorney must devote to the case before it can be resolved. That is because an attorney is likely to charge an hourly fee for their service.
Reportedly, the average hourly rate for a Washington lawyer was $288 an hour. This is the average hourly rate. Some lawyers are going to charge more. So, a person can estimate what the cost of a case might be. In addition to attorney’s fees, a person would have to pay court costs, e.g., the fee to file a complaint. There would also be other costs.
In a case about a construction project, a person might need to hire an expert witness to testify about how the contractor’s work is deficient. This would add to the cost.
What Is the Statute of Limitations for Contract Disputes?
The statute of limitations in Washington is 6 years for breach of a written contract or breach of warranty. It is 3 years for breach of an oral contract. Tort-based claims, e.g., negligence, strict product liability and misrepresentation, also have a statute of limitations of 3 years.
Do I Need an Attorney for Suing a Contractor?
If you have received substandard work from a construction contractor, you want to consult a Washington contract lawyer as soon as possible. LegalMatch.com can connect you to an experienced lawyer in your area. Your lawyer will be able to analyze the facts of your situation, tell you what your best options are, and guide you through the process of getting the remedy you deserve.
