ALABAMA CONSTRUCTION CLAIMS RESOURCES
1 Construction Claims
- 1.1 Limitations & Repose Periods
- 1.2 Right to Repair Laws and/or Pre-Suit Statutory Procedures
- 1.3 Indemnity and Contribution
- 1.4 Certificate of Merit – Experts
- 1.5 Economic Loss Doctrine
- 1.6 Contractor Licensing Requirements
- 1.7 Common Law & Statutory Claims
2 Construction Damages
- 2.1 Economic Loss Rule
- 2.2 Recovery for Investigative Costs
- 2.3 Emotional Distress Claims
- 2.4 Stigma Damages
- 2.5 Diminution in value
- 2.6 Economic Waste
- 2.7 Delay Damages
- 2.8 Recoverable Damages
- 3 Trigger of Coverage
Common construction related claims in Alabama include:
- Breach of Contract
- Breach of Warranty
- Misrepresentation and Fraud
- Strict Liability
- Indemnity Claims
Limitations & Repose Periods
Statute of Limitations & Statute of Repose
Alabama’s construction-related claims are governed by Alabama Code Section 6-5-225, entitled “Time for Commencement of Action Against Architects, Engineers, and Builders”. All construction related claims are subject to a two-year statute of limitations period from the date a cause of action “accrues” and a seven-year repose period following “substantial completion” of the improvement. However, the seven-year statute of repose period following “substantial completion” does not apply to rights of action for breach of written express warranties, contracts, or indemnities which extend beyond seven years.
The Code provides that a cause of action “accrues” when the alleged defect was known or should have been known. This is otherwise known as the “discovery rule”.
The so called “discovery rule” provides that the two-year statute of limitation does not commence until the time of injury or damage, which extends the commencement of the time for filing contract actions, or where latent or by its nature not reasonably discovered, does not commence until the time of discovery thereby applying for the first time to both these tort and contractual actions.
A breach of contract claim in Alabama is subject to a six-year statute of limitations. See Alabama Code 6-2-34 (1975). The statute of limitations does not begin to run when the contract is entered, but rather when the case of action accrues.
Pursuant to Alabama Code Section 6-5-225(c), actions founded on contract may be commenced within two years for oral contracts, six years for written contracts, or ten years for written contracts under seal after the completion of the contract work.
For claims based on breach of warranty to construct a building in a workmanlike manner, the case of action accrues, and the statute of limitations begins to run, on the date that the defendant completes performance.
A breach of warranty claim brought under the Uniform Commercial Code has a four-year statute of limitations, while a claim brought under contract law has a six-year statute of limitations. See Alabama Code 7-2-725 (1975).
Alabama law is clear that a breach-of-warranty cause of action against a contractor or architect accrues upon the completion of the building regarding which the contractor or architect’s work was done. Any action that accrues more than 13 years after substantial completion of construction is barred unless the injured party can show fraudulent concealment. See Alabama Code 6-5-221 (1975).
Fraud claims are subject to a two-year statute of limitations. See Alabama Code 6-2-38.
Right to Repair Laws and/or Pre-Suit Statutory Procedures
Alabama does not currently have a “right to repair” or “right to cure” statute.
Indemnity and Contribution
Alabama is a contributory negligence state. In Alabama, contributory negligence is negligence on the part of the plaintiff that proximately contributed to his injuries. Alabama is also a joint and several liability state.
Contribution in Tort
The general common-law rule in Alabama, subject to exceptions, prohibits one of several joint tortfeasors from enforcing contribution from the others who participated in the wrong. It has been said that this rule is based upon the policy that no man should be allowed to make his own misconduct the ground for an action in his own favor. A result of this rule is that a tortfeasor generally cannot pay the plaintiff's judgment and then demand contribution from his joint tortfeasor.
The defense of no contribution as between joint tortfeasors is available only in actions seeking contribution between such joint tortfeasors. If the plaintiff gets recovery from one joint tortfeasor and pursues the other tortfeasor, however, the latter can claim setoff or credit against the plaintiff for any sums paid by the other tortfeasor.
The general rule denying contribution as between joint tortfeasors has exceptions. It has been held, for example, that the rule is limited to cases where the party claiming contribution has committed an intentional, known, or meditated wrong and not where the party is liable only by reason of the other's negligence or fault.
Where the right of contribution is recognized, it is subject to a lawsuit that is basically equitable in nature but has historically been available at either law or in equity. An action for contribution seeks to distribute the loss equally among all the tortfeasors.
Contribution in Contract
When one or more obligors satisfy and procure discharge of a common contractual obligation, the right of contribution arises as against the noncontributing joint obligors. One who discharges such a liability can recover the excess paid over his share of the obligation. The judgment paid is prima facie evidence of the right of the one paying the judgment to receive contribution from the others. Contribution in the contractual area is most actively sought about guaranty and suretyship. Should such a security party have to pay more than his proportionate share of the principal obligation, he has the right of contribution from the other security parties.
Indemnity in Tort
Indemnity is accomplished when the entire loss is transferred from one tortfeasor to another who should, by equity, pay it. As in the case of contribution, the general rule is that one joint tortfeasor is not entitled to indemnity from the other. There is an exception when the one claiming indemnity has not been guilty of any fault, except technically of constructively, or both were at fault, but the fault of the party from whose indemnity is claimed was the cause of injury.
Only where joint tortfeasors are equally at fault, in the sense that each is chargeable with active or affirmative negligence contributing to the injury for which recovery was had, is neither entitled to indemnity from the other. The courts have held that one can get indemnity if the other tortfeasor's negligence was the effective or efficient cause of the injury.
It has been held that the rule denying indemnity is limited to cases where the party seeking indemnity has committed an intentional, known, or meditated wrong and is inapplicable where he has acted bona fide under the supposition of the innocence and propriety of his act.
If the general rule is inapplicable, and indemnity is permitted, the person seeking indemnity may do so in a separate suit against the joint tortfeasor.
Indemnity in Contract
Cases of indemnity in contract customarily arise in instances of special contract whereby the indemnitor promises to hold the indemnitee harmless from loss in the event of a lawsuit.
The basic rule of construction used to interpret indemnity agreements is that all ambiguity or doubt is to be resolved in favor of the indemnified party. There is a historic rule that unless the intention is expressed in the plainest of words, the law will consider that the indemnitor did not undertake to indemnify the indemnitee from the consequences of his own negligence or intentional misconduct. When the intention to indemnify against negligence or other wrongs is clear and unequivocal, however, the agreement will be enforced.
Payment of a judgment is not a prerequisite to an action on a contract of indemnity against liability. When liability does arise, however, it is assumed that the agreement, whether it says so or not, was intended to include attorney's fees.
Certificate of Merit – Experts
In Donnell and Froom v. Baldwin County Board of Education, 599 So.2d 1128 (Ala. 1992), the Alabama Supreme Court found that “[A]n architect is a ‘professional,’ and we are of the opinion that expert testimony was needed to show whether the defects here should have been obvious to the Architect during the weekly inspections. Just as in cases dealing with an alleged breach of a duty by an attorney, a doctor, or any other professional, unless the breach is so obvious that any reasonable person would see it, then expert testimony is necessary to establish the alleged breach.” (quoting Watson, Watson, Rutland/Architects, Inc. v. Montgomery County Bd. of Educ., 559 So. 2d 168, 173, 59 Ed. Law Rep. 1214 (Ala. 1990)) (holding that expert testimony was required in suit against architect).
Economic Loss Doctrine
The economic loss rule in Alabama bars a plaintiff from recovering under tort law when the product caused property damage only to itself. See Carrell v. Masonite Corp., 775 So. 2d 121 (Ala. 2000); see also Lloyd Wood Coal Co. v. Clark Equip. Co., 543 So. 2d 671 (Ala. 1989). Therefore, the recovery of purely economic losses resulting from damages to the home itself falls within the area of contract law, not tort law.
Where there is damage to personal property, however, other than to the structure itself and/or personal injury, a cause of action for negligence exists, and it is subject to Alabama’s two-year statute of limitations. See ALA.CODE 6-2-38(1) (1975).
Contractor Licensing Requirements
Alabama Code section 34-8-1 et seq. requires that a contractor engaged in construction involving non-residential work amounting to more than $50,000 obtain a license. Ala. Code § 34-8-1 (1975). This provision applies, with certain exceptions, to subcontractors as well. Id. at § 34-8-7.
"A contract by an unlicensed 'general contractor,' as defined in §34-8-1, is null and void as a violation of ... public policy. Such contracts are illegal and unenforceable by the unlicensed general contractor. Thomas Learning Center, Inc. v. McGuirk, 1998 WL 854839, *16 (Ala. Civ. App. 1998). Additionally, a proper license is required for a contractor seeking to enforce a construction lien. See J & M Industries, Inc. v. Huguley Oil Co., Inc., 546 So.2d 367 (Ala. 1989).
Statewide licenses are available for many classifications of contractors.
Under the Code, there are several different types of licenses related to those working in the construction industry. These licenses include:
- Commercial General Contractor's License (See Ala. Code § 34-8-1 at et seq.);
- Electrician's Licenses (Ala. Code § 34-36-1 et seq. (1975))
- HVAC Contractor's Certification (See Ala. Code § 34-31-18 et seq. (1975))
- Architecture (See Ala. Code § 34-2-30 et seq. (1975));
- Landscape Architecture (See Ala. Code § 34-17-20 (1975)).
Common Law & Statutory Claims
- Common Law Claims
- Breach of Contract
- Under Alabama law, the elements of a breach of contract claim are: (1) a valid contract binding the parties; (2) the plaintiff’s performance under the contract; (3) the defendant’s nonperformance; and (4) resulting damages. Shelton v. Clements, 834 So. 2d 775 (Ala. Civ. App. 2002).
- Anti-Indemnity Statute: Alabama does not have an anti-indemnity statute. Alabama law may limit an indemnitee’s ability to recover attorney’s fees when defending claims predicated on its own negligence. Stone Bldg. Co. v. Star Elec. Contractors, Inc. 796 So.2d 1076 (Ala. 2000).
- Misrepresentation and Fraud
- Strict Liability Claims
- Indemnity Claims
Simple negligence claims under Alabama law require the plaintiff to prove (1) the existence of a duty; (2) breached that duty; (3) loss or injury; and (4) that the breach was the actual and proximate cause of the loss or injury.
An injury incurred due to negligent construction may give rise to an action for breach of the contractor’s common law duty of care, or negligence. An action for negligence in construction could be based on the contractor’s poor workmanship, supervision, or design. However, the negligence claim against the general contractor may be limited by the economic loss rule.
Under certain circumstances, general contractors can be sued by homeowners under the theory of fraud, suppression, or misrepresentation. For a valid fraud or misrepresentation claim, the plaintiff must show that any alleged misrepresentation caused the property damage.
Whether punitive damages are available against the homebuilder depends on whether the misrepresentations were negligent or fraudulent. Failure to exercise reasonable care is the level of fault that gives rise to a claim of negligent misrepresentation. See Berkel and Co. Cont., Inc. v. Providence Hosp., 454 So. 2d 496, 503 (Ala. 1984). On the other hand, Fraudulent misrepresentation requires proof: (1) that the defendants made a false representation; (2) of a material existing fact; (3) on which the plaintiffs reasonably relied; and (4) which proximately caused the injury or damage to the plaintiffs. Boackle v. Bedwell Constr. Co., Inc., 770 So. 2d 1076, 1080 (Ala. 2000) (quoting Bethel v. Thorn, 757 So. 2d 1154, 1161 (Ala. 1999)).
Strict liability claims in construction cases have not been widely accepted in Alabama. Alabama judicially created the Alabama Extended Manufacturer’s Liability Doctrine (AEMLD) to apply the doctrine of strict liability for damage or injuries caused by allegedly defective products. Keck v. Dryvit Systems, Inc., 830 So. 2d 1, 5 (2002); see Casrell v. Altec Indus., 335 So. 2d 128 (Ala. 1976). In determining whether an item that is incorporated into real property may be considered a “product” for the purposes of the AEMLD, a court considers “whether the item is a part of the structural integrity of the house or building that is reasonably expected to last for the useful life of the house or building.
Refer to section on indemnity and contribution above.
- Statutory Claims
- Statutory Warranties
Breach of Warranty
Breach of warranty claims can be based on express warranty provisions contained in the contrition contract between the plaintiff and the general contractor and/or warranties implied by law.
A cause of action based upon a breach of an implied warranty accrues under either ALA.CODE 7-2- 725 (1975), concerning “goods” under the Uniform Commercial Code, or under “contract law which would require that the construction be performed in a workmanlike manner.” B&B Prop. v. Dryvit Systems, Inc., 708 So. 2d 189, 192 (Ala. Civ. App. 1997).
“Alabama cases hold that a breach-of-warranty cause of action against a contractor or architect accrues upon the completion of the building in regard to which the contractor or architect’s work was done.” Mitchell v. Richmond, 754 So. 2d 627, 629 (Ala. 1999); City of Birmingham v. Cochrane Roofing & Metal Co., 547 So. 2d 1159 (Ala. 1989); Stephens v. Creel, 429 So. 2d 278 (Ala. 1983).
ALA.CODE 7-2-105(1) defines “goods” as “all things...which are moveable at the time of identification to the contract for sale,” including “things attached to realty.” See Keck v. Dryvit Systems, Inc., 830 So. 2d 1, 8 (Ala. 2002). This recent Alabama case defined 4 whether an attachment to a building is still considered a good under the Code. “The test for determining whether an attachment to realty is a good under the UCC is whether the ‘thing’ attached to the realty is capable of severance without material harm to the realty.” Id. at 8.
Economic Loss Rule
The economic loss rule in Alabama bars a plaintiff from recovering under tort law when the product caused property damage only to itself. See Carrell v. Masonite Corp., 775 So. 2d 121 (Ala. 2000); see also Lloyd Wood Coal Co. v. Clark Equip. Co., 543 So. 2d 671 (Ala. 1989). Therefore, the recovery of purely economic losses resulting from damages to the home itself falls within the area of contract law, not tort law. Id.
Recovery for Investigative Costs
At this time, Alabama courts have not addressed the specific issue of recovery for investigative costs. These types of damages may be recoverable in a negligence or contract case.
Emotional Distress Claims
In Alabama, a homeowner or home buyer can recover compensatory damages for emotional distress because of construction defects to their home. See Keck v. Dryvit Systems, Inc., 830 So. 2d 1, 15 (Ala. 2002) (Mental anguish resulting from damage to a home is a legally recognizable and compensable form of personal injury.); Horton Homes Inc. v. Brooks, 832 So. 2d 44, 50 (Ala. 2001); Southern Energy Homes, Inc. v. Washington, 774 So. 2d 505 (Ala. 2000).
Stigma damages is another name for diminution in value because of a perceived problem with the property. Alabama case law does not provide specifically for the claim of stigma damages. There is case law on diminution claims involving negligence claims. Additionally, a stigma claims or diminution in value claims may be a part of contractual damages allowed in a case.
Diminution in value
Diminution in value has been held to be the proper measure of damages for a building contractor's breach of contract resulting in several construction defects including unlevel floors, a poorly constructed roof, and many other defective or unsightly aspects of the construction. Lowe v. Morrison, 412 So. 2d 1212 (Ala. 1982). The Alabama Supreme Court noted that the proper damages were the “diminution in value of the house as constructed from the value it would have had if it had been constructed in a workmanlike manner.” Id. at 1213-14. See also Alabama Pool & Const. Co. v. Richard, 418 So. 2d 149 (Ala. Civ. App. 1982) (applying diminished value measure to a case involving construction of a swimming pool).
“The question of whether or not diminution in value is in itself ‘property damage’ has not been decided by the Alabama Supreme Court.” Bibb Allen, Alabama Liability Insurance Handbook § 8-11(f). The Eleventh Circuit court, deciding Alabama law, has held that diminution in value could be damage to tangible property. Perkins v. Hartford Ins. Co., 932 F.2d 1392 (11th Cir. 1991).
Generally, the measure of damages for a breach of contract by a general contractor is the cost to remedy the defect. LORD, 24 WILLISTON ON CONTRACTS 66:17 (4th Ed. 2003). However, where an award based on this measure of damages would result in “economic waste”, the proper measure of damages would be the difference in the fair market value between the building as it should have been constructed and the fair market value of the property as it was constructed. See Kohn v. Johnson, 565 So. 2d 165 (Ala. 1990); Lowe v. Morrison, 412 So. 2d 1212, 1213-14 (Ala. 1982). Under a construction contract, economic waste generally exists when the cost of replacement or repair is grossly out of proportion to the good to be attained.
Delay damages are generally recoverable in Alabama. The proper measure of damages for failure to erect a building on time is the rental value of the building, as completed according to the contract, for the time elapsing between the time fixed for its completion and the time when it was delivered and turned over to the owner. Huntsville Elks Club v. Garrity-Hahn Bldg. Co., 57 So. 750 (Ala. 1911)
In Alabama, damages for injuries to real property are generally measured by the difference between the market value before and after the injury, together with any special damages proximately and naturally resulting from the wrong. See Alabama Great Southern R.R. v. Russell, 48 So. 2d 249 (Ala. 1950). However, if property can be restored or repaired, and the cost of the restoration/repairs is reasonable, the proper measure of damage is the repair, not to exceed the loss in market value. See Kohn v. Johnson, 565 So. 2d 165, 168-69 (Ala. 1990).
There are currently no Alabama cases directly on point as to whether stigma damages are recoverable in construction cases. However, Alabama courts generally allow damages for diminution in value
Loss of Use
`There are currently no Alabama cases directly on point as to whether loss of use damages is recoverable in construction cases. However, under the Uniform Commercial Code, as set out in ALA. CODE 7-2-715 (1975), a party can recover damages that are both incidental and consequential to a breach of contract.
In Alabama, an award of punitive damages must be supported by evidence of “oppression, fraud, wantonness, or malice.” ALA.CODE ' 6-11-20(a) (1975). Traditionally, punitive damages have been allowed in some tort actions, but have not been recoverable for breach of contract. Geohagan v. General Motors Corp., 279 So. 2d 436 (Ala. 1973). Further, punitive damages may be recoverable in an action for fraud, which may arise in a construction contract setting. Shiloh Const. Co., Inc. v. Mercury Const. Corp., 392 So. 2d 809 (Ala. 1981). Punitive damages are subject to review under the Alabama case of BMW v. Gore, 701 So. 2d 507 (Ala. 1997), and its progenies.
In BMW, the Alabama Supreme Court enumerated specific guideposts by which it would review a punitive damages award: (1) the degree of reprehensibility of the defendant’s conduct, (2) the ratio of actual or likely harm to the punitive damages, (3) the comparison of sanctions that could be imposed for comparable misconduct, (4) whether the punitive damages award removes the defendant’s profit, (5) the financial position of the defendant, (6) the costs of litigation, (7) whether criminal sanctions have been imposed for the conduct, and (8) whether other civil actions have been filed. Id. at 512-515.
In Alabama, “mental-anguish damages may be awarded in certain cases for breach of contract, provided that the subject matter of the contract is so closely associated with matters of mental concern, or with the emotions of the party to whom the duty is owed, that a breach of that duty can reasonably be expected to result in mental anguish or suffering.” Sanderson Group v. Smith, 809 So. 2d 823, 828-829 (Ala. Civ. App. 2001).
In Alabama, the general rule is that attorney’s fees and expenses of litigation are not recoverable as damages, in the absence of a contractual or statutory duty, other than by a few recognized equity principles. See Austin Apparel, Inc. v. Bank of Prattville n/k/a Whitney Bank, 872 So. 2d 158 (Ala. Civ. App. 2003). The reason for the rule disallowing attorney fees as an element of damages is that such fees are considered a remote loss. Highland Underwriters Ins. Co. v. Elegante Inns, Inc., 361 So. 2d 1060 (Ala. 1978).
Expert Fees and Costs
In Alabama, expert fees are not awarded as a matter of costs unless provided for by statutory authority. Davis v. Davis, 686 So. 2d 1245 (Ala. Civ. App. 1996); Cooper v. Cooper, 57 Ala. App. 674, 331 So. 2d 689, 694-95, cert. denied, 331 So. 2d 695 (Ala. 1976); Hartley v. Alabama Nat’l Bank of Mont., 247 Ala. 651, 25 So. 2d 680 (1946).
Trigger of Coverage
3.1 Duty to Defend
In Alabama, it is well established that the duty to defend an insured is more extensive than the duty to indemnify the insured. Lawler Machine & Foundry Co. v. Pacific Indemnity Ins. Co., 383 So. 2d 156, 157 (Ala. 1980). Insurers have a duty to defend when a complaint is made against the insured that alleges a set of facts that are within the policy coverage. United States Fid. & Guar. Co. v. Armstrong, 479 So. 2d 1164, 1168 (Ala. 1985). If the complaint’s allegations do not implicate coverages other than facts outside of the complaint may be taken into consideration in determining whether the complaint alleges a covered injury.
The duty to defend and the duty to indemnify are separate. The Alabama Supreme Court has established the following guidelines governing an insurer’s duty to defend:
- Whether an insurance company owes a duty to provide an insured with a defense to proceedings instituted against him, must be determined primarily from the allegations of the Complaint. . .
- If the injured party’s Complaint alleges an accident or occurrence which comes within the coverage of the policy, the insurer is obligated to defend, regardless of the ultimate liability to the insured. . .
- If the Complaint suggests that the injury alleged may not be within the coverage of the policy, then other facts outside the Complaint may be taken into consideration.
United States Fid. & Guar. Co. v. Armstrong, 479 So. 2d 1164, 1167 (Ala. 1985) (citations omitted).
Definition of an Occurrence
Occurrences that trigger coverage
In Alabama, the most important consideration in analyzing coverage is the time of the occurrence which gives rise to liability. The Alabama Supreme Court has opined the time of the occurrence of an accident for purposes of determining coverage under an occurrence policy is “not the time the wrongful act was committed, but the time the complaining party was actually damaged.” United States Fid. & Guar. Co. v. Warwick Dev. Co., 446 So. 2d 1021, 1024 (Ala. 1984).
In Alabama, an argument can be made for a continuous trigger in construction cases. Although there have been no construction cases involving continuous trigger, this argument is often raised and has not yet been addressed by the Alabama Supreme Court. In other opinions, examples of continuous torts have included “(1) when an employer exposes its employee on a continuing basis to harmful substances and conditions . . . (2) when there is a ‘single sustained method pursued in executing one general scheme,’ as in a blasting case . . . and (3) when a plaintiff landowner seeks damages for the contamination of a well or stream.” Moon v. Harco Drugs, Inc., 435 So. 2d 218, 220 (Ala. 1983) (cites omitted).
In a construction case, courts looking at occurrence issues often ask whether the loss in question is unanticipated or is merely a natural and probable consequence of the contractor’s business. See, e.g., Id., United States Fid. & Guar. Co. v. Bonitz, 424 So. 2d 569, 572 (Ala. 1982). In Bonitz, the court required one of the insurers to defend and in so holding noted the absence of any evidence indicating the contractor expected or intended the roof to begin leaking. Alabama courts generally give a liberally inclusive definition to the term “accident.” See, e.g., Id., United States Fid. & Guar. Co. v. Armstrong, 479 So. 2d 1164 (Ala. 1985). Basically, Alabama courts have interpreted the meaning of accident to include human fault or negligence. See Bonitz, 424 So. 2d at 571 (Ala. 1982).
Further, “[a] majority of courts have held that in order to have liability under the terms of such a policy the ‘occurrence’ must arise during the policy period, for it is the insurance that is in force at the time of the property damage that is applicable rather than insurance that was in force when the work was performed.” State Farm Fire & Cas. Co. v. Gwin, 658 So. 2d 426, 428 (Ala. 1995). If there is an occurrence, there must be either property damage or personal injury caused by the occurrence before coverage is triggered.
Typical CGL policies define “bodily injury” as physical injury, “sickness, or disease sustained by a person, including death resulting from any of these at any time.” Allegations in a complaint of physical injury generally will constitute a covered injury. Additionally, the Alabama Supreme Court has held that “bodily injury” includes mental anguish. See American States Ins. Co. v. Cooper, 518 So. 2d 708 (Ala. 1987). Therefore, if a complaint alleges emotional distress, mental anguish or any other wording which could be considered a bodily injury, it may be a covered claim. However, some CGL policies specifically exclude coverage for mental anguish and emotional distress.
Typically, property damage is defined in CGL policies as “physical injury to tangible property, including all resulting loss of use of that property” or “loss of use of tangible property that is not physically injured.” According to the Alabama Supreme Court, “tangible property” is that which may be felt or touched; such property as may be seen, weighed, measured, and estimated by the physical senses.” See American States Ins. Co. v. Martin, 662 So. 2d 245, 248 (Ala. 1995). Further, the Court stated, “tangible property (such as real estate) is property that is capable of being handled, touched, or physically possessed. Purely economic losses are not included in this definition.” Id. at 248. Specifically, “strictly economic losses like lost profit, loss of an anticipated benefit of a bargain, and loss of an investment do not constitute damage or injury to ‘tangible property”. Id. at 249. Of course, a complaint can make a claim for loss of money and lost property. If one claim in the lawsuit is covered, the insurer has the duty to defend.
In Alabama, generally a construction contractor who follows plans and specifications will not be liable for defects resulting from the specifications unless he has expressly warranted their sufficiency. See Commercial Cont., Inc. v. Sumar Cont., Inc., 302 So. 2d 88 (Ala. 1974). For instance, in Alabama Society for Crippled Children & Adults v. Still Const., 309 So. 2d 102 (Ala. Civ. App. 1975), a contractor who had followed his reasonable interpretation of the contract documents was not responsible for inoperable windows.
The holding in one case, however, goes against this general rule. In United States Fid. & Guar. Co. v. Jacksonville State Univ., 357 So. 2d 952 (Ala. 1978), the architects had specified a particular product, Boncoat, which was furnished by the general contractor. The Boncoat was defective, resulting in leakage in aggregate panels. Jacksonville State sued the contractor for the defects and claimed against the architect for breach of an implied warranty that the plans and specifications were sufficient to prevent water leakage. The Supreme Court of Alabama ruled in favor of Jacksonville on the ground that the contract provided the general contractor should be “fully responsible to the Owner for the acts and omissions of his subcontractors,” as well as for those of his own employees. Apparently, the Court held the contractor liable because [a]although the draftsmanship could have entailed more specificity with respect to the liability of the parties, the contract terms do not clearly exonerate the general contractor. Id. at 956.