ForConstructionPros.com

Defect litigation presents a financial challenge to the concrete industry, and 2009 is unlikely to see any improvement in that regard. Whether fairly or not, concrete gets tainted by defects in other aspects of construction, both residential and commercial. That is to say, roof and window leaks seem to precede most complaints about the concrete. And when homeowners see the value of their homes fall dramatically, they can't help but wonder if a builder's negligence contributed to that loss of value. We've all seen from Wall Street to Washington that values have tumbled, and we can all expect litigation to increase because of this 2008 drain on equity.

In California, defect litigation proceeds unabated, and the concrete industry faces similar legal challenges in Arizona, Nevada and other states. Allegations of sulfate attack or related complaints about defective concrete are all too common.

Refuting allegations of sulfate attack, for example, requires hundreds of hours of expert analysis and testimony. Never mind that the Castron v. Fieldstone case in Orange County, Calif., demonstrated that claims of sulfate attack are often based on "junk science." The judge in the Castron trial lamented that junk science should not be used to "bludgeon" defendants - in this case defendant National Ready Mix Concrete Corporation - into costly settlements. Yes, National Ready Mix prevailed at trial, but at what cost? There is little to prevent plaintiffs in other cases making similar allegations. Castron was just one in the line of so much litigation that some describe it as "Same case, different zip code." Except unlike the vast majority of cases, a judge spent nearly one year of his life hearing the evidence. Ultimately, the defendant's insurance companies, when policies are still in force, can usually elect to settle them rather than incur the expense of a trial, even when they believe allegations are unfounded.

Due to the current legal environment and changing standards of practice, concrete contractors, suppliers and design professionals in the residential concrete business all are at additional risk of multimillion-dollar construction defect lawsuits. California's Right to Repair Law (SB 800) and similar legislation make defect litigation involving concrete even more complicated.

In November, Arizona voters defeated Proposition 201, the so-called "Homeowners' Bill of Rights," which construction and concrete industry representatives believed, if passed, would have spawned yet more defect litigation.