Preview: LexisNexis® Mealey's™ Construction Defects Legal News
LexisNexis® Mealey's™ Construction Defects Legal News
Headline Construction Defects Legal News from LexisNexis®
Jury Awards Couple $89,090 For Negligent Installation Of Spray Foam Insulation
NEW HAVEN, Conn. - A federal jury in Connecticut on March 16 found in favor of a couple who claimed that negligently installed spray polyurethane foam (SPF) insulation resulted in property damage and awarded them $82,400 for diminution in the value of their property and $6,690 in damages for the installation (Richard Beyer, et al. v. Anchor Insulation Co. Inc., et al., No. 13 CV 1576, D. Conn.).
Judge Excludes Causation Testimony From Homeowners' Expert On Stucco Installation
ORLANDO, Fla. - A civil engineer's education, experience and expertise in stucco installation was not enough to show that his testimony in support of a proposed class action filed by homeowners against Pulte Home Corp. satisfied the requirements of Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993), a federal judge in Florida ruled March 3 in granting the home builder's motion to exclude (Shaun Gazzara, et al. v. Pulte Home Corporation, No. 16-cv-657-Orl-31TBS, M.D. Fla., 2017 U.S. Dist. LEXIS 30251).
Stucco Remediation Expert's Methodology Not Reliable, Relevant, Judge Rules
ORLANDO, Fla. - A stucco remediation expert's methodology for calculating the cost to repair homes made by Pulte Home Corp. that have improperly installed stucco is not reliable or relevant, a federal judge in Florida ruled March 10 in granting the builder's motion to exclude the testimony (Shaun Gazzara, et al. v. Pulte Home Corporation, No. 16-cv-657-Orl-31TBS, M.D. Fla.).
Majority Of Proposed Class's Claims Against Window Maker Dismissed By Federal Judge
MINNEAPOLIS - A federal judge in Minnesota on March 29 dismissed a majority of claims asserted by a putative class of consumers of two-pane inert glass unit (IGU) windows against the manufacturer, finding that the plaintiffs only sufficiently stated claims for breach of implied warranty of merchantability and breach of implied warranty based on course of dealing/usage of trade (Cheryl Luckey, et al. v. Alside, Inc., et al., No. 15-2512, D. Minn., 2017 U.S. Dist. LEXIS 47750).
Colorado Appeals Court Finds Homeowner Protection Act Covers Senior Facility
DENVER - A Colorado appeals panel on March 9 overturned a ruling awarding summary judgment to the builder of a senior living facility in a construction defects lawsuit, ruling that the building is residential property under the Homeowner Protection Act of 2007 (HPA) that waives the builder's rights under the Construction Defect Action Reform Act (CDARA) (Broomfield Senior Living Owner, LLC, et al. v. R.G. Brinkmann, d/b/a Brinkmann Constructors, No. 16CA0101, Colo. App., 2017 Colo. App. LEXIS 261).
Fluidmaster MDL Judge Denies Class Certification, Limits Experts' Testimony
CHICAGO - The federal judge in Illinois presiding over litigation over allegedly defective connector nuts in plumbing hoses manufactured by Fluidmaster Inc. on March 31 denied certification of a nationwide class and a number of subclasses, finding that they failed to satisfy the requirements of Federal Rule of Civil Procedure 23, and limited the testimony proffered by experts on both sides (In re: Fluidmaster, Inc., Water Connector Components Products Liability Litigation, MDL 2575, No. 14-cv-5696, N.D. Ill., 2017 U.S. Dist. LEXIS 48792).
Judge Approves $9.3M Settlement Over Rust-Oleum's Restore Products
CHICAGO - A federal judge in Illinois on March 6 entered final approval of a $9.3 million settlement that certified a class of consumers who purchased a concrete resurfacing paint made by Rust-Oleum Corp. that allegedly bubbled and flaked prematurely (In re: Rust-Oleum Restore Marketing, Sales Practices and Products Liability Litigation, MDL 2602, Case No. 15 C 1364, N.D. Ill.).
Woman Can Pursue Contract Claim Against Roof Installer, New York Federal Judge Says
WHITE PLAINS, N.Y. - A woman who claims that a roofing subcontractor defectively installed the roof on her home that eventually needed to be replaced can pursue a cause of action for breach of contract but cannot assert claims for unjust enrichment and attorney fees, a federal judge in New York ruled March 24 (Debra Rothberg v. Phil's Main Roofing, LLC, No. 14-cv-10095, S.D. N.Y., 2017 U.S. Dist. LEXIS 44839).
Couple's Contract, Negligence Claims Over Defective Roof Survive Dismissal
NEW ORLEANS - A federal judge in Louisiana on March 21 ruled that a couple sufficiently stated claims for breach of contract and negligence for a roof they claim was defectively installed by a contractor hired by Sears Home Improvement Products Inc. (SHIP) and allowed them to amend their allegations for redhibition, fraud and negligent misrepresentation (Anthony Coleman, et al. v. Sears Home Improvement Products, Inc., No. 16-2537, E.D. La., 2017 U.S. Dist. LEXIS 40961).
Judge Allows Couple To Name Contractor As A Defendant In Deadly Defects Suit
TAMPA, Fla. - A couple can amend a lawsuit claiming that defects in the construction of their home allowed for mold growth that led to the death of their daughter to include the general contractor who built the home, a federal judge in Florida ruled March 28 (Rohan B. Goldson, et al. v. KB Home, et al., No. 17-cv-340-T-24 AEP, M.D. Fla.).
Couple Can Amend Fraud, Building Code Violation Allegations, Judge Rules
TAMPA, Fla. - A couple claiming that the defective construction of their home allowed for water infiltration and mold growth that led to the death of their daughter can amend their allegations that the home builder violated the Florida Building Code and engaged in fraud, a federal judge in Florida ruled March 17 in granting in part the builder's motion to dismiss (Rohan B. Goldson, et al. v. KB Home, et al., No. 17-cv-340-T-24 AEP, M.D. Fla., 2017 U.S. Dist. LEXIS 38426).
Woman Sues Home Builder, Says Faulty HVAC System Caused Mold Growth
GALVESTON, Texas - A woman sued a home builder and its sales and marketing firm in Texas state court on March 1, claiming that defects in the heating, ventilation and air conditioning (HVAC) unit have caused mold growth (Kara Whiteley v. Lennar Homes of Texas, Ltd., et al., No. 17-CV-0253, Texas Dist., Galveston Co.).
Illinois Appeals Panel: Association's Email Did Not Trigger Mediation Provision
CHICAGO - A 2010 email from counsel for a condominium association to the president of its initial board of directors did not trigger a provision in the declaration of condominium ownership requiring that allegations of construction defects that lead to water intrusion go to mediation, an Illinois appellate panel ruled March 24 in reinstating the association's claims (Siena at Old Orchard Condominium Association, et al. v. Siena at Old Orchard, LLC, et al., No. 1-15-1846, Ill. App., 1st Dist., 5th Div., 2017 Ill. App. LEXIS 188).
Appeals Court Affirms Dismissal Of Contractor's Third-Party Claims Against LLC
CHICAGO - A general contractor's third-party lawsuit against a subcontractor that allegedly failed to properly install steel beams and ornamental steelwork was properly dismissed by a trial court judge, an Illinois appeals panel ruled March 31, after finding that the defendant LLC was not a mere continuation of a defendant corporation (The Groves of Palatine Condominium Association v. Walsh Construction Company, No. 1-16-1035, Ill. App., 1st Dist., 5th Div., 2017 Ill. App. LEXIS 204).
Judge: Subcontractors Owe Defense To Subrogated Insurer's Negligence Claim
BOSTON - Three subcontractors owe a defense to a general contractor against negligence and breach of the implied warranties of habitability and good workmanship claims brought by a subrogated insurer for water damage in a condominium building, a Massachusetts federal judge ruled March 22 (Philadelphia Indemnity Insurance Co. v. Consigli Construction Company Inc., et al. v. Central Ceilings Inc., No. 14-14687, D. Mass., 2017 U.S. Dist. LEXIS 41444).
Colorado Supreme Court Reinstates Contractor's Third-Party Claims For Defects
DENVER - An en banc Colorado Supreme Court on Feb. 27 reversed a trial court's ruling entering summary judgment against a general contractor on its third-party claims against two subcontractors, finding that the six-year statute of repose is irrelevant for third-party claims brought under Colorado Revised Statute Section 13-80-104(1)(b)(II) (Richard Goodman v. Heritage Builders, Inc., et al., No. 16SA193, Colo. Sup., 2017 Colo. LEXIS 153).
Montana High Court Upholds Ruling Awarding Summary Judgment To Builder, Architect
HELENA, Mont. - A Montana Supreme Court panel on Feb. 7 affirmed a ruling awarding summary judgment to a builder and an architect accused of defectively constructing a high school roof that partially collapsed following a snow storm in 2010, finding that the school district's lawsuit was barred by the 10-year statute of repose because the roof was being used for its intended purpose beginning in 1998 (Hill County High School District No. A. v. Dick Anderson Construction, Inc., et al., No. 16-0186, Mont. Sup., 2017 Mont. LEXIS 38).
Dismissal Of Unit Owners' Claims Against Designers, Suppliers Upheld On Appeal
CHICAGO - An Illinois appellate panel on Feb. 17 affirmed a trial court judge's decisions to dismiss claims for breach of the implied warranty of habitability brought by an association of condominium owners against designers and building materials suppliers, but held that the association could pursue a similar claim against subcontractors who worked on the complex (Sienna Court Condominium Association v. Champion Aluminum Corporation, d/b/a Champion Window and Door, et al., Nos. 14-3364, 14-3687, 14-3753, Ill. App., 1st Dist., 6th Div., 2017 Ill. App. LEXIS 86).
Contractor Not Required To Prove Negligence, Causation For Indemnification
PHOENIX - An Arizona appeals panel on Feb. 23 affirmed a trial court's judgment requiring a grading subcontractor to indemnify a general contractor for construction defects, ruling that the general contractor was not required to prove negligence or causation to support its request (Amberwood Development, Inc. v. Swann's Grading, Inc., No. 1-CA-CV 15-0786, Ariz. App., 1st Div., 2017 Ariz. App. Unpub. LEXIS 207).
Louisiana Appeals Court: Family's Claims Perempted By New Home Warranty Act
BATON ROUGE, La. - A Louisiana appeals panel on Feb. 17 affirmed rulings awarding summary judgment to a home builder and its insurer, finding that a family's allegations that defective workmanship caused a fire that destroyed the home were perempted by the New Home Warranty Act (NHWA) (James E. Shields Jr., et al. v. Alvin R. Savoie & Associates Inc., d/b/a Savoie Construction, et al., No. 2016 CA 0825 consolidated with No. 2016 CA 0826, La. App., 1st Cir., 2017 La. App. LEXIS 249).
Appeals Court Overturns Ruling Staying Construction Defects Case
SAN DIEGO - A California appeals panel on Feb. 10 vacated a trial court judge's ruling staying a lawsuit brought under the Right to Repair Act (RRA) for defects in the construction of 28 homes, finding that the builder's failure to timely respond to the notice of the defects warranted reversal (William Blanchette, et al. v. Superior Court of Imperial County, et al., No. D070545, Calif. App., 4th Dist., Div. 1, 2017 Cal. App. LEXIS 105).
Innocent Seller Provision Shields Building Supplier That Sold Chinese Drywall
JACKSON, Miss. - A building supply company that sold salvaged Chinese drywall to a contractor that built a couple's home is shielded from liability under the "innocent seller" provision of the Mississippi Products Liability Act (MPLA), the Mississippi Court of Appeals ruled Feb. 28 after finding that the supplier did not alter the product or know that it was salvaged (Kent Holifield, et al. v. City Salvage, Inc., No. 2015-CA-01293-COA, Miss. App., 2017 Miss. App. LEXIS 115).
Couple Cannot Pursue Personal Injury Claims From Spray Foam Fumes, Judge Rules
NEW HAVEN, Conn. - A federal judge in Connecticut on Feb. 17 held that a couple could pursue claims that allegedly improper installation of spray polyurethane foam (SPF) insulation in their home resulted in property damage requiring remediation but that they failed to provide causation evidence to show that they suffered respiratory problems after being exposed to volatile organic compound (VOC) vapors from the products (Richard Beyer, et al. v. Anchor Insulation Co. Inc., et al., No. 13 CV 1576, D. Conn., 2017 U.S. Dist. LEXIS 23434).
Couple: Expert's Supplemental Report Clarified Remediation Plan, Costs
NEW HAVEN, Conn. - A couple who claims that they suffered physical injuries and property damage as a result of spray polyurethane foam (SPF) insulation in their home say in a brief filed Feb. 1 in Connecticut federal court that a supplemental report submitted by one of their experts should not be stricken from the record because it contains new information about the remediation plan for their home that was added to the report to clarify any ambiguities (Richard Beyer, et al. v. Anchor Insulation Co. Inc., et al., No. 13 CV 1576, D. Conn.).
Plaintiffs Oppose Pausing Spray Foam Insulation Trial, Citing Wife's Surgery
NEW HAVEN, Conn. - A Connecticut couple on Feb. 2 asked a federal judge to deny a motion to continue an upcoming trial against the company they hired to install spray polyurethane foam (SPF) in their home, explaining that the female plaintiff is scheduled for a March 16 surgery that will keep her from walking for six months (Richard Beyer, et al. v. Anchor Insulation Co. Inc., et al., No. 13 CV 1576, D. Conn.).
Judge Dismisses Proposed Class Action Suit Over Faulty Air Conditioning Coils
AUGUSTA, Ga. - A federal judge in Georgia on Feb. 22 dismissed without prejudice a proposed class action suit accusing Daikin Industries Ltd. (DIL), Daikin Applied Americas Inc. (DAA) and Daikin North Americas LLC (DNA) of making and selling air conditioning units with faulty evaporator coils, ruling that a building owner lacks personal jurisdiction to assert claims against DIL and failed to state claims against DAA and DNA (Paws Holdings, LLC v. Daikin Industries, Ltd., et al., No. 16-58, S.D. Ga., 2017 U.S. Dist. LEXIS 24684).
Bankruptcy Judge Finds Plan Bars Some Construction Defect Claims
WILMINGTON, Del. - A federal bankruptcy judge in Delaware on Feb. 1 granted in part a homebuilder's motion to enjoin some condominium owners from pursuing construction defects claims against it, finding that the company's reorganization plan barred all allegations that arose before the company filed its plan (In re: Orleans Homebuilders, Inc., et al., No. 10-10684, Del. Bkcy., 2017 Bankr. LEXIS 483).
Judge Affirms Ruling That Contractor's Negligence Claim Over Shelf Angles Barred
RALEIGH, N.C. - A federal judge in North Carolina on Feb. 7 overruled a general contractor's argument that a bankruptcy court judge erred in finding that its negligence claim against a subcontractor who improperly installed shelf angles was barred by the economic loss doctrine, holding that the contractor was unable to show what damage resulted from the improper installation (Weaver Cooke Construction, LLC v. Randolph Stair and Rail Company, No. 14-CV-709-BR, E.D. N.C., 2017 U.S. Dist. LEXIS 19442).
Appeals Court Orders New Trial After Judge Overseeing Defects Case Retires
PHILADELPHIA - A Pennsylvania appeals panel on Feb. 17 ordered a new trial on liability and damages in a construction defects case after learning that the judge who presided over the suit had retired and that no other judge could prepare a supplemental opinion explaining his rulings (Leo J. Dolan v. Hurd Millwork Company Inc., et al., No. 2951 EDA 2015 Pa. Super., 2017 Pa. Super. Unpub. LEXIS 691).
Pella Says Plaintiffs' Arguments For Reconsideration Have Already Been Rejected
CHARLESTON, S.C. - Pella Corp. says in an opposition brief filed Feb. 16 that a federal judge in South Carolina should not reconsider his Dec. 12 ruling that plaintiffs' experts' opinions about defects in the company's Architect and Designer Series windows are unreliable because the plaintiffs' arguments have already been raised and were rejected (In re: Pella Corporation Architect and Designer Series Windows Marketing, Sales Practices and products Liability Litigation, MDL 2514, Case No. 14mn1, D. S.C.).
Homeowners Association's Firm Announces $1.5M Settlement To Resolve Defects Suit
SAN FRANCISCO - A law firm representing the owners of 46 condominiums and two commercial units at a refurbished building in San Francisco announced Feb. 7 that a $1.5 million settlement has been reached to resolve construction defect allegations against the general contractor and developer (201 Sansome Street Owners Association v. 201 Sansome Street, LP, et al., No. CGC-15-548022, Calif. Super., San Francisco Co.).
Homeowners Education Group Report Says Defects More Likely In Condominiums
FALLS CHURCH, Va. - The Community Associations Institute (CAI), a nonprofit group specializing in educating community associations and homeowners, released a report on Feb. 28 stating that construction defects are more likely found in condominiums than townhomes and that defects are more commonly the result of poor workmanship.
8th Circuit Rules Attempted Roof Repairs Did Not Toll Statute Of Repose
ST. LOUIS - Attempts to repair a leaking roof did not toll Arkansas' five-year statute of repose for claims arising from construction defects, an Eighth Circuit U.S. Court of Appeals panel ruled Jan. 6 in affirming an award of summary judgment to the manufacturer of allegedly defective roofing materials (Star City School District v. ACI Building Systems LLC, No. 15-3723, 8th Cir., 2017 U.S. App. LEXIS 248).
Date Of Completion Occurs When Notice Is Recorded, Nevada High Court Says
CARSON CITY, Nev. - A panel of Nevada's Supreme Court on Dec. 29 reversed a trial court's finding that construction defects claims brought against Del Webb Communities Inc. were untimely, ruling that the date of completion occurs when the notice of completion is filed rather than signed and notarized (Robert M. Dykema, et al. v. Del Webb Communities Inc., No. 69335, Nev. Sup., 2016 Nev. LEXIS 726).
Appeals Court Affirms Dismissal Of Homeowners' Suit For Failure To Prosecute
SAN DIEGO - A California appeals panel on Jan. 13 upheld a trial court judge's ruling for discretionary dismissal of a construction defects lawsuit, holding that a stay entered in the case in September 2011 applied only to plaintiffs who had not complied with the presuit notifications of the Right to Repair Act (Jeremy Arthur, et al. v. Centex Homes, No. D069421, Calif. App., 4th Dist., Div. 1., 2017 Calif. App. Unpub. LEXIS 268).
Genuine Issues Exist As To When Masonry Defects Were Discovered, Judge Finds
BALTIMORE - A federal judge in Maryland on Jan. 17 denied a masonry subcontractor's motion for summary judgment in a breach of contract suit, ruling that genuine issues of fact remain as to when potential defects in the installation of a masonry facade that collapsed in April 2013 were known (Skanska USA Building Inc. v. J.D. Long Masonry Inc., No. 16-0933, D. Md., 2017 U.S. Dist. LEXIS 5885).
Judge Dismisses Class Action Suit Over Air Conditioning Units With Faulty Coils
LOS ANGELES - A federal judge in California in Jan. 23 dismissed with prejudice a proposed class action lawsuit seeking damages under the Right of Repair Act (RORA) and the California Consumer Legal Remedies Act (CLRA) over allegedly defective air conditioning units manufactured by Daikin Industries Ltd., finding that the plaintiffs' claims failed because they did not involve the installation of the units (Joanna Park-Kim, et al. v. Daikin Industries, Ltd., et al., No. 15-cv-9523-CAS, C.D. Calif., 2017 U.S. Dist. LEXIS 10454).
Judge: Not Enough Facts To Show Builder's Transfer Of Assets Was Fraudulent
GULFPORT, Miss. - A federal judge in Mississippi on Jan. 20 denied a property owner's motion for partial summary judgment, ruling that the plaintiff company did not present sufficient facts to show that a construction company's transfer of assets to another company after judgment had been entered against it in arbitration hearing was fraudulent (RDS Real Estate LLC v. Abrams Group Construction LLC, et al., No. 15CV361-LG-RHW, S.D. Miss., 2017 U.S. Dist. LEXIS 8180).
Trial Judge Ordered By Appeals Court To Write Opinion Explaining Decision
PHILADELPHIA - A Pennsylvania appeals panel on Jan. 13 ordered a trial judge to issue a supplemental opinion explaining why he concluded that a homeowner couple was entitled to $748,287.67, after finding that the judge's three-page opinion did not address the issues raised on appeal (Leo J. Dolan v. Hurd Millwork Company Inc., et al., No. 2951 EDA 2015 Pa. Super., 2017 Pa Super. Unpub. LEXIS 151).
Pella Window Plaintiffs Ask Judge To Reconsider Ruling Excluding Expert
CHARLESTON, S.C. - Plaintiffs claiming that Pella Corp.'s Architect and Design Series windows are defective and allow for water intrusion that causes property damage on Jan. 17 asked a federal judge in South Carolina to alter or amend his Dec. 12 decision to exclude the testimony of their expert Michael Louis, arguing that the judge erroneously adopted the manufacturer's interpretation of various engineering standards and guidelines (In re: Pella Corporation Architect and Designer Series Windows Marketing, Sales Practices and products Liability Litigation, MDL 2514, Case No. 14mn1, D. S.C.).
Connecticut Judge Awards Couple Attorney, Expert Fees In Suit Over Floorboards
STAMFORD, Conn. - A trial court judge in Connecticut on Jan. 24 ruled that a couple who prevailed on their claims that the company from which they purchased their home breached the terms of the sales agreement after they discovered that hardwood floors had been improperly installed were entitled to attorney fees and expert fees in the amount of $68,495.44 (Joseph Arcadi, et al. v. Toth Investments LLC, et al., No. FSTCV146022841S, Conn. Super., Stamford-Norwalk Dist.).
Attorneys Waived Privilege Over PowerPoint Presentations, Judge Rules
CHARLESTON, S.C - The contents of two PowerPoint presentations made by attorneys during town hall meetings held to persuade homeowners to join a proposed class action suit against the builders of their homes over alleged construction defects waived any work product protection over the information, a federal judge in South Carolina ruled Jan. 12 in denying the plaintiffs' motion to quash subpoenas (Jacqueline L. Craft, as Trustee of the Jacqueline L. Craft Trust, et al. v. South Carolina Plastering LLC, et al., No. 15-cv-5080-PMD, D. S.C., 2017 U.S. Dist. LEXIS 4510).
Insulation Installer Moves To Strike Couple's Expert's New Report
NEW HAVEN, Conn. - A company that installed spray polyurethane foam (SPF) insulation that allegedly caused a couple to suffer respiratory injuries on Jan. 11 filed a motion in Connecticut federal court seeking to strike a new report submitted by their expert on Dec. 12, arguing that the report contains new opinions that are not based on newly discovered evidence (Richard Beyer, et al. v. Anchor Insulation Co. Inc., et al., No. 13 CV 1576, D. Conn.).
Installer Of Allegedly Defective Insulation Moves To Continue Trial
NEW HAVEN, Conn. - A defendant company that installed and removed allegedly defective spray foam polyurethane (SPF) insulation on Jan. 27 filed a motion in Connecticut federal court to continue a trial until April, explaining that its owner has two scheduled vacations in March and that its counsel has another trial scheduled to begin March 1 (Richard Beyer, et al. v. Anchor Insulation Co. Inc., et al., No. 13 CV 1576, D. Conn.).
$67 Million Settlement Approved In Suit Over Allegedly Defective Solar Panels
SAN FRANCISCO - A California federal judge on Dec. 22 granted final approval of a settlement by BP Solar International Inc. and Home Depot U.S.A. Inc. that is valued at more than $67 million, to end a class suit accusing the companies of marketing and selling defective solar panels (Michael Allagas, et al. v. BP Solar International, Inc., et al., No. 14-560, N.D. Calif.).