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Preview: LexisNexis® Mealey's™ Construction Defects Legal News

LexisNexis® Mealey's™ Construction Defects Legal News

Headline Construction Defects Legal News from LexisNexis®


Judge Bars Testimony From Plaintiffs' Experts On Pella Windows' Leakage Paths
CHARLESTON, S.C. - Three experts retained by plaintiffs claiming that Pella Corp.'s Architect Series and Designer Series windows are defective cannot testify about "leakage paths" that allow water to penetrate into vulnerable areas of the windows, a federal judge in South Carolina ruled Dec. 12, finding that the testing done by the experts to support their theory did not conform with American Society for Testing and Materials (ASTM) standard E2128 (In re: Pella Corporation Architect and Designer Series Windows Marketing, Sales Practices and products Liability Litigation, MDL 2514, Case No. 14mn1, D. S.C.; 2016 U.S. Dist. LEXIS 171502).

North Carolina Panel Overturns General Contractors' Summary Judgment Award
RALEIGH, N.C. - A trial court judge erred in finding that general contractors were not estopped from arguing that a couple's claims stemming from windows that leaked in their home were barred by the statute of repose, a North Carolina appellate panel ruled Dec. 30, finding that genuine issues of material fact exist as to whether the contractors knew that the windows were improperly installed (Peter Buffa, et al. v. Cygnature Construction and Development Inc., et al., No. COA16-237, N.C. App.; 2016 N.C. App. LEXIS 1334).

Judge: Window Components Maker Not Liable For Indemnification, Contribution
MINNEAPOLIS - A window components manufacturer need not indemnify or contribute to an arbitration award a plaintiff company must pay to a school district for windows that needed to be remediated, a federal judge in Minnesota ruled Dec. 30, finding that the manufacturer was not liable under contract or tort law (All Metro Glass v. Tubelite Inc., No. 15-140, D. Minn.; 2016 U.S. Dist. LEXIS 180520).

Judge Refuses To Reconsider Ruling Allowing Warranty Claim Against Window Maker
GULFPORT, Miss. - A federal judge in Mississippi on Jan. 3 denied a window manufacturer's motion to reconsider his Nov. 30 decision denying the defendant company's request for summary judgment on plaintiffs' breach of implied warranty of merchantability claim, holding that he properly applied the Mississippi Supreme Court's ruling in Hargett v. Midas International Corp. (508 So.2d 663 [Miss. Sup. 1987]) (Joan Cravens Inc., et al. v. Deas Construction Inc., d/b/a Deas Millwork Co., et al., No. 15-cv-00385, S.D. Miss.).

Nevada High Court: Judge Failed To Apply Reasonable Threshold Test For Notices
CARSON CITY, Nev. - The Nevada Supreme Court on Nov. 29 granted in part a home builder's petition challenging the adequacy of presuit notifications submitted by homeowners and a homeowners' association over alleged construction defects in 352 homes, ruling that a trial court judge failed to conduct a reasonable threshold test to determine if the notifications satisfied Nevada Revised Statute Chapter 40 (NRS Chapter 40) (KB Home Nevada Inc. v. Eighth Judicial District Court of the State of Nevada, In and for County of Clark., et al., No. 69389, Nev. Sup.; 2016 Nev. Unpub. LEXIS 971).

Homeowners' Defects Suit Requires Presuit Notification, Appeals Court Says
SACRAMENTO, Calif. - A California appeals panel on Dec. 2 granted a home builder's request for a writ of mandate after finding that a trial court erred in denying its motion to stay on the ground that a lawsuit filed by a group of homeowners is not subject to the presuit notification requirement of the Right to Repair Act (Elliot Homes Inc. v. Superior Court of Sacramento County, No. CO78122, Calif. App., 3rd Dist.; 2016 Calif. App. LEXIS 1052).

Judge Dismisses Claim That Pulte Intentionally Violated Building Code
ORLANDO, Fla. - A federal judge in Florida on Dec. 12 dismissed with prejudice a claim asserted by a putative class of homeowners accusing Pulte Home Corp. of intentionally applying stucco in a manner that violated the Florida Building Code, ruling that the statute does not allow such a cause of action (Shaun Parker Gazzara, et al. v. Pulte Home Corporation, No. 16-CV-657-Orl-31TBS, M.D. Fla.; 2016 U.S. Dist. LEXIS 171271).

Federal Judge: State Court Should Decide If Presentation Is Privileged
CHARLESTON, S.C. - A federal judge in South Carolina on Dec. 28 denied a woman's motion to quash a subpoena seeking production of a Power Point presentation prepared by attorneys for potential class members of a construction defects lawsuit, finding that a state court judge presiding over a similar action should first decide if the presentation is protected by the work product doctrine (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.; 2016 U.S. Dist. LEXIS 178679).

Settlement Letter Informed Defects Defendants Of Removability, Judge Finds
LAS VEGAS - A homeowners association's July 29, 2016, settlement letter in which it stated that it would take $6.7 million to resolve its allegations over defective air conditioning cooling coils was the first time defendants in the case could ascertain that the damages sought exceeded the Class Action Fairness Act's (CAFA) $5 million jurisdictional threshold, a federal judge in Nevada ruled Dec. 7 in finding that the defendants' removal of the suit was timely (The Seasons Homeowners Association Inc. v. Richmond Homes of Nevada Inc., et al., No. 16-CV-1816 JCM, D. Nev.; 2016 U.S. Dist. LEXIS 170243).

New Mexico Appellate Panel Agrees That Claims Against Deck Builder Are Untimely
ALBUQUERQUE, N.M. - A New Mexico appeals panel on Nov. 29 affirmed a ruling awarding summary judgment to an unlicensed contractor who built an allegedly faulty deck, ruling that a man's claims stemming from injuries were barred by the statute of limitations (S. Louis Little v. Thomas R. Baigas, No. 34, 724, N.M. App.; 2016 N.M. App. LEXIS 114).

California Appeals Court Finds Homeowners' Arbitration Request Was Premature
SANTA ANA, Calif. - A California appeals panel on Dec. 15 affirmed a trial court judge's decision to deny without prejudice a motion to compel arbitration filed by homeowners accusing Froehlich Signature Homes Inc. of construction defects, finding that the consolidation of the plaintiffs' suit with similar actions did not cause judicial reference to become legally unavailable (Ebony Freeman, et al. v. Froehlich Signature Homes Inc., No. F073374, Calif. App., 5th Dist.; 2016 Calif. App. Unpub. LEXIS 9017).

Louisiana School Board Sues Construction Company Over Elementary School Defects
NEW ORLEANS - The Orleans Parish School Board (OPSB) on Dec. 19 filed a lawsuit against a construction contractor and its insurer in Louisiana state court over construction defects at the New Edward Hynes Elementary School in New Orleans that included roof leaks and water infiltration, gypsum board issues, improperly installed floor outlets and glazing issues (Orleans Parish School Board v. Woodrow Wilson Construction LLC, et al., No. 16-12346, La. Dist., Orleans Parish).

Spray Foam Makers Settle Claims Over Injury-Causing Vapors
NEW HAVEN, Conn. - The manufacturers of Corbond II spray polyurethane foam (SPF) insulation have settled a lawsuit brought by a couple claiming that volatile organic compound (VOC) vapors released by the product caused them to suffer respiratory problems, according to an order of dismissal filed Nov. 29 in Connecticut federal court (Richard Beyer, et al. v. Anchor Insulation Co. Inc., et al., No. 13 CV 1576, D. Conn.).

4th Circuit Finds Judge Erred In Denying Center's Discovery Request
RICHMOND, Va. - A federal judge in Maryland erred when denying a medical center's request for discovery and awarding summary judgment to a builder accused of concealing construction defects, a Fourth Circuit U.S. Court of Appeals panel ruled Nov. 23, finding that the requested discovery could have shown that the builder intentionally withheld information (Civista Health, Inc., et al. v. Gilbane Building Company, et al., No. 15-1975, 4th Cir.; 2016 U.S. App. LEXIS 21077).

Virginia Supreme Court: Subcontractors Did Not Waive Statute Of Limitations
RICHMOND, Va. - A panel of the Virginia Supreme Court on Nov. 3 upheld a trial court judge's decision to granting pleas in bar filed by subcontractors and sureties that were sued by a general contractor hired to perform work at Virginia Polytechnic Institute & State University (Virginia Tech), finding that the defendants did not waive the statute of limitations when entering into contracts with Hensel Phelps Construction Co. (Hensel Phelps Construction Company v. Thompson Masonry Contractor Inc., et al., No. 151780, Va. Sup.; 2016 Va. LEXIS 166).

Judge Refuses To Remand Construction Defects Suit, Trims Claims
LAS VEGAS - A proposed class of Nevada homeowners who are suing the builder and developer of allegedly defective homes must pursue their claims in federal court and cannot seek damages for strict liability and breach of implied warranty under Nevada Revised Statute (NRS) Chapter 116.4114, a federal judge ruled Nov. 27 (Brittany Lopez, et al. v. U.S. Homes Corporation, et al., No. 16-cv-01754-GMN-CWH, D. Nev.; 2016 U.S. Dist. LEXIS 163571).

North Carolina Panel Upholds Ruling That Claims Against Contractor Are Untimely
RALEIGH, N.C. - A North Carolina trial court judge's ruling dismissing a man's lawsuit against a contractor who improperly installed roofing shingles was affirmed Nov. 15 by a state appellate panel, after the panel found that the plaintiff's lawsuit was barred by the statute of limitations (Sasha-Al Lee v. Donald Mac Moore Sr., No. COA16-415, N.C. App.; 2016 N.C. App. LEXIS 1135).

Homeowners' $15,000 Defects Verdict Reduced By Virginia Judge
NORFOLK, Va. - A trial court judge in Virginia on Nov. 21 agreed with a home builder that a jury erred in awarding homeowners $15,000 in damages for alleged construction defects, finding that the evidence did not support the award (Benjamin Bessant, et al. v. Dey Street Properties LLC, No. CL14-1250, Va. Cir., Norfolk City; 2016 Va. Cir. LEXIS 180).

Bankruptcy Judge Orders D.R. Horton To Pay $16.3M For Mismanagement
MIAMI - A federal bankruptcy court judge in Florida on Oct. 21 ordered D.R. Horton Inc. to pay $16.3 million for its mismanagement of a Miami homeowners association that is now bankrupt, finding that the residential home builder mismanaged funds and wrongfully cut services at the complex (In re: Majorca Isles Master Association, No. 12-19056, Barry Mukamal v. D.R. Horton Inc., et al., Adv. No. 14-1142, S.D. Fla, Bkcy.).

Provisions In Reorganization Plan Bar Association's Defects Suit, Judge Says
WILMINGTON, Del. - A federal bankruptcy court judge in Delaware on Nov. 21 dismissed a homeowners association's construction defects lawsuit against a bankrupt construction company, finding that discharge and exculpation provisions in the company's reorganization plan bar the suit (In re: Orleans Home Builders Inc., et al., No. 10-10684, Del. Bkcy.; 2016 Bankr. LEXIS 4099).

West Virginia High Court Finds Couple Not Bound By Arbitration Agreement
CHARLESTON, W.Va. - The West Virginia Supreme Court of Appeals on Nov. 14 affirmed a trial court judge's decision to deny a general contractor's motion to compel arbitration and dismiss a couple's construction defects claim, holding that the homeowner was not bound to an arbitration clause that was included in a document that was not provided to the man (G&G Builders Inc. v. Randie Gill Lawson, et al., No. 15-0920, W. Va. Sup.; 2016 W. Va. LEXIS 837).

Builder Of Renovated Condos To Pay $7.3M Over Defects, Firm Says
LOS ANGELES - A San Francisco law firm announced Nov. 8 that the builder of condominiums that were constructed on the site of a former furniture manufacturing factory has agreed to pay $7.3 million to resolve a California state court lawsuit that accused the defendant company of defects in the construction of the units that led to water intrusion, roof leaks and plumbing shut-downs (Barker Block Homeowners Association v. 530 Hewitt Holding Company, et al., No. BC561228, Calif. Super., Los Angeles Co.).

Association's Firm Announces $1.7M Settlement For Construction Defects
LOS ANGELES - A California law firm representing an association of condominium owners in Venice Beach, Calif., on Oct. 25 announced that a $1.75 million settlement had been reached to resolve allegations of construction defects at a 35-unit complex that was built in 2009 (Dogtown Station Inc. v. Dogtown Station LLC, et al., No. BC583642, Calif. Super., Los Angeles Co.).

Hotel Owner's Assignee Claims Against Subcontractor Untimely, Appeals Court Rules
DENVER - A hotel owner's third-party assignee claims against a subcontractor accused of construction defects were properly dismissed as untimely, a Colorado appellate panel ruled Oct. 20, holding that the general contractor that originally brought the allegations was aware of them in 2011 (Sopris Lodging LLC, et al. v. Schofield Excavation Inc., et al., No. 15CA1959, Colo. App.; 2016 Col. App. LEXIS 1490).

Appeals Court: Settlement With Contractor Does Not Bar Claims Against Plumber
AUSTIN, Texas - A Texas appellate court panel on Oct. 19 reversed in part a ruling awarding summary judgment to a plumbing subcontractor accused of improperly installing a propane line, ruling that a couple's settlement with the general contractor does not bar the plaintiffs' claims against the subcontractor (Steven C. Albright, et al. v. Rhea & Sons Enterprises Inc., d/b/a Rhea Plumbing, No. 03-15-00496-CV, Texas App., 3rd Dist.; 2016 Texas App. LEXIS 11296).

Builder's Claim Over Flawed Design Arose During Construction, Judge Rules
WASHINGTON, D.C. - An architecture firm accused by the builder of the Marquis Marriott Hotel of breaching the terms of a design services contract was awarded summary judgment by a federal judge in the District of Columbia on Sept. 28, after the judge found that the builder's claim arose when flaws in the building's design were discovered rather than when construction was substantially complete (Hensel Phelps Construction Co. v. Cooper Carry Inc., No. 15-1961, D. D.C.).

Firms Representing Business, Condo Owners Announce $3M Settlement Over Defects
SAN DIEGO - Two law firms representing business owners who are leasing warehouses with attached office space and an association of condominium owners at a development in California on Oct. 25 announced that they had reached a $3 million settlement with the developers of a commercial and residential complex over alleged construction defects that resulted in water infiltration (Otay Crossing Owners Association, et al. v. Otay Crossing Inc., et al., No. 37-2012-00087560, Calif. Super., San Diego Co.).

Massachusetts Appeals Court Finds Evidence Did Not Support $1M Defects Verdict
BOSTON - A Massachusetts appeals panel on Oct. 25 ruled that evidence presented during a construction defects trial did not support a jury's finding that a couple was entitled to $1 million in damages and upheld a second judge's decision to hold a trial solely on damages allegedly resulting from misrepresentations of the builders and real estate agents (Kathryn Culley, et al. v. Authentic Traditions LLC, et al., No. 15-P-1020, Mass. App.; 2016 Mass. App. Unpub. 1029).

Association's, Developer's Claims Against Contractor Reinstated By Appeals Court
CHICAGO - Claims brought against a general contractor by a condominium owner's association and the developer of the building over alleged construction defects that resulted in water intrusion were reinstated by an Illinois appeals court on Oct. 26, after it found that the association could pursue breach of the implied warranty of habitability claims against the contractor and that the developer had standing (Board of Managers of the 1120 Club Condominium Association v. 1120 Club LLC, et al., No. 1-14-3849, 1120 Club Condominium Association v. Trapani Construction Company Inc., et al., No. 1-14-3953, Trapani Construction Company Inc. v. MacDonald Construction Services Inc., et al., No. 1-15-0033, Ill. App., 1st Dist., 3rd Div.; 2016 Ill. App. LEXIS 730).

Pennsylvania Sues Cutler Group, Says Construction Defects Caused Water Intrusion
NORRISTOWN, Pa. - The Commonwealth of Pennsylvania filed a state court lawsuit against The Cutler Group, doing business as The David Cutler Group, on Oct. 6, claiming that defects in homes built by the company caused water infiltration that resulted in damages such as rot, mold and decay (Commonwealth of Pennsylvania v. The Cutler Group Inc., d/b/a The David Cutler Group, No. 16-23891, Pa. Comm. Pls., Montgomery Co.).

Ohio Appeals Court Finds Arbitration Clause Enforceable, Cuts Loser Pays Provision
CLEVELAND - A Ohio appeals court panel on Oct. 27 overturned a trial court judge's ruling that an arbitration clause in a construction contract was unenforceable, but excised a portion of the contract containing a loser pays provision (Ralph Conte Jr. v. Blossom Homes LLC, et al., No. 103571, Ohio App., 8th Dist.; 2016 Ohio App. LEXIS 4341).

Contractor's 2nd Suit Seeking Indemnification Is Barred, Colorado Panel Says
DENVER - A general contractor's second lawsuit seeking indemnification from a flooring subcontractor is barred by the doctrine of claims preclusion, a Colorado appeals court panel found Oct. 20, finding that the contractor's claims arose out of the same contract (Layton Construction Co. Inc. v. Shaw Contract Flooring Services Inc., d/b/a Spectra Contract Flooring, No. 15CA1435, Colo. App.; 2016 Colo. App. LEXIS 1494).

'Any Statutory Bar' Does Not Extend Statute Of Repose, Judge Rules
MOBILE, Ala. - A federal judge in Alabama on Oct. 27 dismissed Sears and Roebuck Co.'s lawsuit seeking indemnification from companies that installed an escalator in 1997 that caused a fatal accident, finding that the phrase "any statutory bar" in the construction contract between the parties did not extend Alabama's seven-year statute of repose (Sears and Roebuck Co. v. Hardin Construction Group Inc., et al., No. 16-00272-KD-B, S.D. Ala.; 2016 U.S. Dist. LEXIS 148671).

Delaware Superior Court Affirms Dismissal Of Roofer's Appeal For Missing Signature
DOVER, Del. - A Delaware appellate court judge on Oct. 19 affirmed a ruling granting a couple's motion to dismiss a roofing contractor's appeal of a Justice of the Peace Court's decision to award $15,000 to the couple, finding that the contractor's appeal was not filed by an attorney (Biddles Construction LLC v. Richard Seeley, et al., No. K15A-11-001 WLW, Del Super.; 2016 Del. Super. LEXIS 523.)

Expert May Opine Cement Was Defective In Projects, Magistrate Judge Finds
PORTLAND, Ore. - A concrete manufacturer's expert may testify that a supplier's cement mix performed inadequately when applied at construction projects, an Oregon federal magistrate judge ruled Oct. 27, declining to exclude the testimony (Ross Island Sand & Gravel Co. v. Lehigh Southwest Cement Co., No. 15-01369, D. Ore.; 2016 U.S. Dist. LEXIS 148766).

Plaintiffs Seek Approval Of $9.3M Settlement Over Rust-Oleum's Restore Products
CHICAGO - Individuals claiming that deck and concrete resurfacing paint made by Rust-Oleum Corp. is defective moved in Illinois federal court on Oct. 19 seeking approval of a $9.3 million settlement offered by the manufacturer, explaining that the agreement was reached in good faith and that the settlement class satisfies the requirements of Federal Rule of Civil Procedure 23 (In re: Rust-Oleum Restore Marketing, Sales Practices and Products Liability Litigation, MDL 2602, Case No. 15 C 1364, N.D. Ill.).