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GOVERNMENT CONTRACTOR DEFENSE
NOT UNIFORMLY AVAILABLE
Jack W. Plowman*
Contractors like to think that they are immune from liability to a
person injured due to a condition rising from the performance of the
contract, i.e., the “government contractor” immunity defense.
Unfortunately, this is not always true.
Thus, when a wife was injured allegedly due to improper drainage on a
road surface, and the condition causing the accident came about as a
result of the performance of the contract, such was not necessarily a
defense to the contractor. In Coolbaugh v. PennDOT, 816 A.2d 307 (Pa.
Super. 2003), the wife was seriously injured when she lost control of
her automobile in a heavy rain. She and her husband sued PennDOT,
claiming that her car hydroplaned due to improper water drainage which
would not have happened had the road been “properly sloped, graded,
grooved and otherwise prepared…” for wet weather. PennDOT, in turn,
joined the contractor as an additional defendant, claiming that the
contractor “had failed to follow contract specifications…and failed to
complete the project in a workmanlike manner.” The contractor
asserted as a defense that, as a government contractor, it had
complied with the specifications and could not be liable, and
accordingly, moved for summary judgment. The trial judge agreed and
the plaintiff’s appealed.
The Superior Court reversed, holding that only if the contractor
performed its work in conformity with the specifications would it be
immune from liability, stating:
“It is not saved by the state’s immunity from suit, but by its own
innocence of wrongful acts resulting in liability as for tort.” 816
A.2d at 311 (Emphasis by the Court)
But the Court went on to hold that the contractor was not immune if it
failed to complete the project in a workmanlike manner, even if it did
complete the work in technical compliance with the specifications.
The evidence, offered in the form of expert testimony, criticized the
manner in which the work was performed, opining “that the contractor’s
dereliction created conditions that caused the…crash.”
In rendering its decision, the Superior Court relied on Lobozzo v.
Adam Eidemiller, Inc., 437 Pa. 360, 263 A.2d 432 (1970):
“Thus under [the Supreme Court’s] holding the insulation rule…applies
in the absence of negligence, willfully tortious conduct, or
activities, such as blasting, for which liability without fault as
imposed.” 263 A.2d at 434-35
The governmental immunity rule is actually a part of the so-called
Spearin rule, namely, that a contractor that builds in accordance with
the specifications is not liable if the result is deficient, i.e., not
the result desired by the owner. United States v. Spearin, 248 U.S.
132 (1918); Manella v. Pittsburgh, 334 Pa 396, 6 A.2d 70 (1939). A
further qualification to the government contractor immunity, in
Pennsylvania, is one not discussed in the Coolbaugh case, but alluded
to in a rather off-hand fashion in Conner v. Quality Coach, 561 Pa.
397, 750 A.2d 823 (2000):
“…when the government provides plans and specifications that are to be
explicitly followed, it warrants that the design specifications would
produce satisfactory results, thus absolving a contractor from
liability for defective specifications at least where such
specifications are not so obviously defective that a competent
contractor would not have followed them.” 750 A.2d at 830
(Emphasis added).
What to make of all this? While a government contractor may have
immunity under certain, limited circumstances, it is not easy to
establish and may well necessitate a jury verdict. Adequate liability
coverage is imperative, and to escape liability the contractor must be
prepared to rebut a plaintiff’s evidence of tortious conduct.
*Of counsel, Bentz Law Firm, P.C.; fellow, American
College of Trial Lawyers; member, American Bar Association Forum on
the Construction Industry; member, American Bar Association Fidelity
and Surety Committee; Member, National Bond Claims Association;
Adjunct Professor, Emeritus, Duquesne University School of Law,
Author, Pennsylvania Mechanics’ Liens (Professional Education Systems,
1989); Author, with K.W. Lee, Construction Contracting for Public
Entities in Pennsylvania (Lorman Education Services, 2002).
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