Most people are familiar with the concept of an express warranty where a party warrants that a product or component will perform as warranted. For example, roofing system manufacturers often warrant that a roof system will perform for a certain period, like 20 years, if properly installed. However, many people are surprised that in South Carolina a design professional impliedly warrants his drawings and specifications. The South Carolina’s courts first adopted this implied warranty claim in 1951’s Hill v. Polar Pantries stating: “T]here is an implied warranty that the work which [the designer] undertakes shall be of proper workmanship and reasonable fitness for its intended use, and, if a party furnishes specifications and plans for a contractor to follow in a construction job, he thereby impliedly warrants their sufficiency for the purpose in view.”
In a subsequent 1995 opinion, Tommy L. Griffin Plumbing & Heating Co. v. Jordan, Jones & Goulding, Inc., the South Carolina Supreme Court reiterated this implied warranty but potentially expanded it to include construction administration services. In that case, the Court quoted the Hill case but then stated the implied warranty more broadly: “In Hill…. we found one who undertook to design and oversee a construction project for another impliedly warranted the design and quality of construction despite the lack of privity between the parties.” This sentence should concern design professionals who contract to perform construction administration services in the Palmetto State because it implies that there is an implied warranty that applies not only to the design but also to construction administration services.
These cases recognized an implied warranty of a design professional in favor of the contractor or subcontractor. South Carolina’s appellate courts have not yet addressed whether the implied warranty is also owed to the Owner. Since it is a foreseeable party, it seems likely that the court would do so.
Can you disclaim the implied warranty? Since it is similar to the implied warranty of fitness under the UCC, it seems arguable that a design professional can do so, but this issue has not yet been addressed by our Courts. An effective disclaimer must be clear, unambiguous and conspicuous. A designer cannot try to bury a disclaimer in a long contract with the hope that the Owner will not notice it. Here is an example of a conspicuous disclaimer:
DISCLAIMER OF IMPLIED WARRANTIES. Any implied warranty of fitness of the drawings and specifications or of the construction administration services to be provided by Design Professional under this Agreement are expressly disclaimed AND DO NOT APPLY.