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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®



 



New Jersey Supreme Court Reverses Ruling Finding Defects Suit Timely
TRENTON, N.J. - The New Jersey Supreme Court on Sept. 14 overturned an appeals court's ruling reinstating a condominium association's construction defects lawsuit, holding that it is unclear when the statute of limitations began to run on the association's lawsuits against a general contractor and three subcontractors and that the limitations period does not restart every time a property changes hands (The Palisades at Fort Lee Condominium Association, Inc. v. 100 Old Palisade, LLC, et al., Nos. A-101/102/103/104 September Term 2015, 077249, N.J. Sup., 2017 N.J. LEXIS 845).



Vermont Supreme Court Says Couple's Claims Over Roof Leaks Untimely
MONTPELIER, Vt. - A four-judge panel of the Vermont Supreme Court on Aug. 25 affirmed a trial judge's decision awarding summary judgment to an architecture firm and a general contractor, holding that the suit was untimely because the plaintiffs should have known by 2005 that issues with their roof were causing leaks (John C. Abajian, et al. v. TruexCullins, Inc., et al., No. 16-317, Vt. Sup., 2017 Vt. LEXIS 94).



Utah High Court: Man Lacks Standing To Sue Contractor Over Defects
SALT LAKE CITY - An en banc Utah Supreme Court on Aug. 29 affirmed a ruling awarding summary judgment to a contractor accused of construction defects, holding that a man had no standing to sue because he was not in privity with the construction contract (Joseph Tomlinson v. Douglas Knight Construction, Inc., et al., No. 20150529, Utah Sup., 2017 Utah LEXIS 132).



Appeals Court Says Pending Action Doctrine Did Not Bar Homeowners' Counterclaims
HARTFORD, Conn. - A Connecticut appeals panel on Sept. 12 found that a homeowner's counterclaims for breach of contract and violations of the Connecticut Unfair Trade Practices Act and New Home Construction Contractors Act were not barred by the pending action doctrine, holding that the other action did not involve the same parties or claims (Luongo Construction & Development, LLC v. James MacFarlane, No AC 38185, Conn. App., 2017 Conn. App. LEXIS 368).



Judge Dismisses Pair Accused Of Breaching Construction Contract
JEFFERSON CITY, Mo. - A federal judge in Missouri on Sept. 21 dismissed with prejudice a claim for breach of contract asserted against the owners of a general contracting business, finding that they were not parties to the agreement (Robert A. Myers, et al. v. KNS Development Corp., et al., No. 17-cv-04076-NKL, W.D. Mo., 2017 U.S. Dist. LEXIS 153738).



Pennsylvania Appeals Court: Couple Entitled To More Attorney Fees In Defects Suit
PHILADELPHIA - A couple who prevailed on their claims that their home builder was liable for defects in the construction of their home that caused water intrusion and property damage and for violation of Pennsylvania's Unfair Trade Practice and Consumer Protection Law (UPTCPL) are entitled to a greater award of attorney fees, a Pennsylvania appeals panel ruled Oct. 2, after finding that the trial court judge erred when reducing the amount based on a contingency agreement the plaintiffs had with their attorney (Arun Krishnan, et al. v. The Cutler Group, Inc., Nos. 2614 EDA 2016, 2745 EDA 2016, 2613 EDA 2016, 2828 EDA 2016, Pa. Super., 2017 Pa. Super. LEXIS 766).



South Carolina County Sues Contractor Over Defects At Courthouse Building
ST. GEORGE, S.C. - A South Carolina county on Sept. 7 sued a contractor and an insurance company in state court, claiming that defects in the construction of $10.1 million courthouse resulted in damage caused by water infiltration and moisture (County of Dorchester v. LCM Contractors, Inc., et al., No. 2017-CP-18-1480, S.C. Comm. Pls., Dorchester Co.).



Pennsylvania Appeals Court Upholds Ruling Dismissing Woman's Claim Over Stucco
PHILADELPHIA - A Pennsylvania appeals panel on Aug. 31 affirmed a trial judge's decision awarding summary judgment to a home builder on a woman's claim under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), finding that the plaintiff failed to sufficiently allege that she relied on any representations from the builder about allegedly defective stucco on the home (Karen Zajick v. Cutler Group, Inc., No. 1343 EDA 2016, Pa. Super., 2017 Pa. Super. 285).



Couples Say 'As Is' Sale Does Not Shield Home Builder From Liability
ORLANDO, Fla. - Two couples whose as-is purchase of homes with allegedly defective stucco does not shield the builder from liability, the plaintiffs say in opposition to Pulte Home Corp.'s motion for summary judgment, because the company can still be held liable for violating the Florida Building Code (Shaun Gazzara, et al. v. Pulte Home Corporation, No. 16-cv-657-Orl-31TBS, M.D. Fla.).



4 Florida Couples Sue Home Builder Over Damage Caused By Stucco
GREEN COVE SPRINGS, Fla. - Four Florida couples sued KB Home and its subsidiaries in state court on Sept. 26, contending that the builder's improper installation of stucco on their homes violated the Florida Building Code and led to water intrusion that caused damage (Jonathan Siegers, et al. v. KB Home, et al., No. 2017-CA-00954, Fla. Cir., Clay Co.).



Women Say Home Builder, Contractors Improperly Installed Stucco
GREEN COVE SPRINGS, Fla. - Two women sued KB Home and its subsidiaries in Florida state court on Sept. 22, claiming that the builder's improper installation of stucco on their home resulted in water intrusion that led to damage (Christine Floyd, et al. v. KB Home, et al., No. 2017-CA-00950, Fla. Cir., Clay Co.).



Magistrate Judge Says Homeowners Need Not Attend Mediation With Builder
LAS VEGAS - Homeowners accusing D.R. Horton Inc. of construction defects in 103 homes are not required to attend mediation with the home builder, a federal magistrate judge in Nevada ruled Sept. 25, finding that an earlier decision conditionally certifying a class for discovery purposes gave the homeowners association standing to represent the individuals (Azure Manor/Rancho de Paz Homeowners Association v. D.R. Horton, Inc., No. 14-cv-002222, D. Nev., 2017 U.S. Dist. LEXIS 156223).



Use Of Unlicensed Contractor Resulted In Damages, California Appeals Court Finds
LOS ANGELES - A California appellate panel on Sept. 11 affirmed a lower court's decision to award damages to a woman who purchased a home laden with construction defects that resulted from the hiring of an unlicensed contractor, finding that the seller's failure to disclose the information resulted in damages (Josefina Posada v. Stone Steps Properties, LLC, et al., Nos. B271664, B277933, Calif. App., 2nd Dist., 5th Div., 2017 Calif. App. Unpub. LEXIS 6270).



Pennsylvania Supreme Court To Determine If Defects Claims Should Be Retried
HARRISBURG, Pa. - The Pennsylvania Supreme Court on Sept. 11 agreed to address how an appellate panel should review a ruling in a construction defects lawsuit where the judge presiding over a bench trial retired and no other judge could prepare a supplemental opinion to explain his ruling (Leo Dolan Jr. v. Hurd Millwork Company Inc., et al., No. 51 MAP 2017, Pa. Sup.).



Judge Dismisses Woman's Suit Against Attorneys Who Represented Contractors
TACOMA, Wash. - A federal judge in Washington on Sept. 22 dismissed with prejudice a woman's lawsuit accusing two attorneys who represented contractors in a previously disposed of construct defects suit of violating the Washington Rules of Professional Conduct (RPC) and dismissed the action, finding that her claims are barred by the U.S. Supreme Court's rulings in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), collectively known as the Rooker-Feldman doctrine (Nina M. Firey v. Lewis County, et al., No. C17-5473RBL, W.D. Wash., 2017 U.S. Dist. LEXIS 155475).



University Of Central Florida Sues Builders, Designer Over Stadium Defects
ORLANDO, Fla. - The University of Central Florida Board of Trustees on Sept. 1 sued the architects, designers and builders of Spectrum Stadium, where the college's football team plays, in Florida state court over defects in the construction of the stadium that have caused the premature wear of steel framing (Golden Knights Corporation, et al. v. Wharton-Smith, Inc., et al., No. 2017-CA-008259, Fla. Cir., Orange Co.).



Pella MDL Judge Denies Motion To Alter Ruling Excluding Plaintiffs' Experts
CHARLESTON, S.C. - The federal judge in South Carolina overseeing lawsuits filed by plaintiffs claiming that two designs of windows are defective because they allow for water intrusion on Aug. 24 denied the plaintiffs' request to alter or amend a December ruling excluding the testimony of three expert witnesses, holding that the experts did not consider alternative causes for what makes the windows leak and that the testing the experts used was unreliable (In re: Pella Corporation Architect and Designer Series Windows Marketing, Sales Practices and Products Liability Litigation, MDL 2514, Case No. 14mn1, D. S.C., 2017 U.S. Dist. LEXIS 136848).



Appeals Court Says Church, Contractor Must Arbitrate Claims With Manufacturer
FORT WORTH, Texas - A Fort Worth church and the contractor who installed a roof membrane system that subsequently leaked must arbitrate their claims with Dow Roofing Systems LLC, the maker of the membrane, a Texas appeals panel ruled Aug. 3, holding that the limited warranty provided by Dow to the church and the applicator agreement between Dow and the contractor each had enforceable arbitration provisions (Dow Roofing Systems LLC v. Great Commission Baptist Church, et al., No. 02-16-00395-CV, Texas App., 2nd Dist., 2017 Tex. App. LEXIS 7370).



Owners Association Is Not Assignee To Condo Developer, Texas Appeals Court Rules
CORPUS CHRISTI, Texas - A Texas appeals panel on Aug. 3 affirmed a trial court judge's ruling denying a contractor's motion to compel arbitration in a construction defects suit brought by an association of unit owners, finding that the association was not an assignee or successor to the developer (G.T. Leach Builders, LLC v. Sapphire Condominiums Association Inc., No. 13-16-00293-CV, Texas App., 13th Dist., 2017 Tex. App. LEXIS 7367).



Judge Finds Contractor's Cross-Claims Against Veneer Installer Are Not Barred
NEW CASTLE, Del. - A Delaware judge on Aug. 8 refused to dismiss a general contractor's cross-claims for contribution and indemnification against a subcontractor accused of negligently installing masonry veneer that allowed water to intrude into a condominium complex, finding that the claims were not procedurally defective or barred by an earlier arbitration proceeding between the parties (Washington House Condominium Association of Unit Owners v. Daystar Sills Inc., et al., No. N15C-01-108 WCC CCLD, Del. Super., New Castle Co., 2017 Del. Super. LEXIS 388).



Kansas Appeals Court Upholds Rulings Against Couple In Construction Defects Suit
TOPEKA, Kan. - An appellate panel in Kansas on Aug. 18 upheld rulings denying a couple's motion for a new trial and for a change of judge to preside over their construction defects lawsuit against Pulte Homes of Greater Kansas City Inc., finding that the request for a new trial was untimely and the arguments for a change of judge were without merit (John Daugherty, et al. v. Pulte Homes of Greater Kansas City, Inc., No. 116,506, Kan. App., 2017 Kan. App. Unpub. LEXIS 687).



Arizona High Court: Couple Entitled To Attorney Fees On Habitability Claim
PHOENIX - An en banc Arizona Supreme Court on Aug. 9 ruled that a couple who prevailed on their claim against a contractor for breach of the implied warranty of habitability were entitled to an award of attorney fees, holding that the warranty was part of the construction contract (Sirrah Enterprises LLC v. Wayne Wunderlich, et al., No. CV-16-0156-PR, Ariz. Sup., 2017 Ariz. LEXIS 203).



Roofer's Failure To Appeal Termination Notice Dooms Breach Of Contract Claim
SAN JUAN, Puerto Rico- A federal judge in Puerto Rico on Aug. 22 awarded summary judgment to the general contractor hired by the U.S. General Services Administration (GSA) for the construction of a federal courthouse building, finding that a roofing subcontractor's failure to appeal a notice of termination of its contract with the general contractor barred it from pursuing a breach of contract claim (R&T Roofing Contractor, Corporation v. Fusco Corporation, et al., No. 15-2955, D. Puerto Rico, 2017 U.S. Dist. LEXIS 135079).



4th Circuit Dismisses Woman's Appeal Over Destructive Testing Of Stucco
RICHMOND, Va. - A Fourth Circuit U.S. Court of Appeals on Aug. 9 dismissed a woman's appeal of a federal judge in South Carolina's ruling denying as moot her motion for a protective order to bar a home builder's destructive testing of stucco, finding that discovery rulings are not immediately appealable (Jacqueline L. Craft v. Del Webb Communities, Inc., et al., No. 17-1682, 4th Cir.).



Builder: Appeal Of Discovery Ruling Does Not Affect Class Certification Issues
BEAUFORT, S.C. - The builders of homes with allegedly improperly installed stucco told a federal judge in South Carolina on Aug. 23 that a woman's class allegations should be stricken because she has missed the deadline for filing her motion for class certification and that her appeal of a discovery ruling has no impact on class certification issues (Jacqueline L. Craft v. South Carolina Plastering, LLC, et al., No. 15-cv-05080-PMD, D. S.C.).



Man Says Builder Liable For Improper Stucco Installation, Resulting Damage
TAMPA, Fla. - A man sued the builder of his Gibsonton, Fla., home in Florida state court on Aug. 7, claiming that the stucco installed on his home did not satisfy the Florida Building Code or American Society for Testing and Materials (ASTM) standards, resulting in water intrusion and damage (Aaron Kater v. KB Home Tampa LLC, No. 2017-CA-007387, Fla. Cir., Hillsborough Co.).



Sponsor's Timeliness Argument Over Defects Claim Premature, New York Justice Says
NEW YORK - A New York justice on Aug. 24 denied in part a motion to dismiss filed by a condominium building's sponsor, finding that its arguments that a board of managers' breach of contract claim stemming from construction defects is premature because more information is needed about substantial completion and the nature of the defects (Golden Wheel Condominium Board of Managers v. Margarette Lee, et al., No. 651637/2015, N.Y. Sup., New York Co., 2017 N.Y. Misc. LEXIS 3185).



Homeowners Sue Developer, Contractors, Say Defects Resulted In Water Intrusion
SACRAMENTO, Calif. - Six California homeowners sued Beazer Homes Holding Corp. and the contractors who helped build their homes on Aug. 22, claiming that improperly compacted soil and faulty doors and windows caused water intrusion that damaged the properties (Carmelita Gauthier, et al. v. Beazer Homes Holding Corp., et al., No. 34-2017-00217875, Calif. Super., Sacramento Co.).



Couple Sues Manufacturer Over Heating-Cooling Unit's Corroded Copper Coils
BOSTON - A couple sued Daikin North America LLC and its subsidiaries in Massachusetts federal court on Aug. 30, claiming that the copper coils in a variable refrigerant volume heating and cooling system (VRV system) installed in their home prematurely corroded, allowing refrigerant to leak from the system (Christopher Egan, et al. v. Daikin North America LLC, et al., No.17-cv-11630, D. Mass.).



7th Circuit: Plaintiffs Forfeited Challenges To Ruling Barring Expert Testimony
CHICAGO - A proposed class of consumers who claimed that windows made by Kolbe & Kolbe Millwork Co. were defective because they allowed for water intrusion that caused property damage forfeited their ability to challenge a ruling by a federal judge barring the testimony of two experts, a Seventh Circuit U.S. Court of Appeals panel ruled July 11, explaining that the plaintiffs should have raised their arguments in response to the manufacturer's motion under Daubert v. Merrell Dow Pharmaceuticals, Inc. (Mary Haley, et al. v. Kolbe & Kolbe Millwork Co., No. 16-3192, 7th Cir., 2017 U.S. App. LEXIS 12381).



Pella MDL Judge Refuses To Deny Certification In Remaining Class Actions
CHARLESTON, S.C. - The federal judge in South Carolina overseeing litigation stemming from two models of Pella Corp. windows that are allegedly defective denied the manufacturer's request to deny certification in all remaining class action suits in the multidistrict litigation on July 21, holding that there are issues in the suits that would need to be briefed (In re: Pella Corporation Architect and Designer Series Windows Marketing, Sales Practices and Products Liability Litigation, 14-mn-00001-DCN, D. S.C., 2017 U.S. Dist. LEXIS 114223).



9th Circuit Says Evidence Showed Defective Couplings Damaged Water Supply
PORTLAND, Ore. - An association of condominium owners provided sufficient evidence to show that a company's defective valves and couplings in hot water storage tanks for kitchen sinks and dishwashers damaged their potable water supply when releasing black particles that contained possible carcinogens, a Ninth Circuit U.S. Court of Appeals panel ruled July 25 (Benson Tower Condominium Owners Association v. Victaulic Company, No. 15-35119, 9th Cir., 2017 U.S. App. LEXIS 13447).



Couple Sufficiently Stated Claims Over Leaky Water Filter System, Judge Says
SEATTLE - A federal judge in Washington on July 31 denied a motion to dismiss a couple's lawsuit against the manufacturer of a water filtration system that leaked in their home and allowed them to amend their complaint to add two other companies involved in the manufacturing of the product after finding that they sufficiently stated claims under the Washington Products Liability Act (WPLA) (Larry Frisvold, et al. v. Pentair Filtration Solutions LLC, et al., No. C17-136-RSL, W.D. Wash., 2017 U.S. Dist. LEXIS 119939).



Ohio Appeals Court: Photos Of Construction Defects Were Not New Evidence
WARREN, Ohio - An Ohio appeals panel on July 31 affirmed a municipal court judge's ruling to deny a woman's request for relief from a judgment in favor of a contractor accused of negligently installing a drain pipe, holding that two photographs the woman produced in support of her request were not newly discovered evidence (Ann Karnofel v. Dan Nye, No. 2016-T-0119, Ohio App., 11th Dist., 2017 Ohio App. LEXIS 3152).



Texas Appeals Court Finds No Error In Enforcing Agreement For Building Defects
HOUSTON - A trial court judge did not err when awarding summary judgment to a plaintiff who sought to enforce a settlement agreement wherein a home builder agreed to buy back a home with construction defects, a Texas appellate panel ruled July 6, holding that the agreement was enforceable (Carnegie Homes & Construction LLC v. Funda Sahin, No. 01-16-00733-CV, Texas App., 1st Dist., 2017 Tex. App. LEXIS 6182).



California Appeals Court Finds Verdict Against Siding Maker Was Not Inconsistent
SACRAMENTO, Calif. - A jury's verdict finding that the manufacturer of fiber cement siding was 10 percent liable for $2.5 million in water intrusion damages at a townhome development on the ground that the company's product did not perform as an ordinary consumer would have expected was not inconsistent with the jury's other conclusion that the product was not negligently designed, a California appellate panel ruled July 10 (Riverview Townhomes Owner's Association v. James Hardie Building Products Inc., No. C078252, Calif. App., 3rd Dist., 2017 Calif. App. Unpub. LEXIS 4673).



Appeals Court Upholds Dismissal Of Association's Claims Against Subcontractors
COLUMBIA, S.C. - A homeowners association's claims against the subcontractors who designed and installed driveways that were allegedly too steep and cracked prematurely were properly dismissed as untimely, a South Carolina Court of Appeals panel ruled July 19 (Rivergate Homeowners' Association v. WW & LB Development Company LLC, et al., No. 2015-00248, S.C. App., 2017 S.C. App. Unpub. LEXIS 328).



Appeals Court Says Settlement Does Not Bar Contract Claims Over Building Defects
SEATTLE - A settlement agreement between a property owner and a construction company did not bar the owner's claim for breach of contract for failure to adhere to standard good building practices, a Washington appellate panel ruled July 17, holding that the agreement resolved only issues stemming from a lien the contractor put on the building (620 LLC v. Meridian Inc., d/b/a Meridian Construction, No. 75331-2-I, Wash. App., 1st Div., 2017 Wash. App. LEXIS 1664).



Shingle Maker Says Man Lacks Causation Evidence To Support Remaining Claims
ATLANTA - The manufacturer of roofing shingles that are allegedly defective as a result of premature deterioration filed a motion for summary judgment in Georgia federal court on July 11 asserting that a man lacks sufficient causation evidence to support his remaining claims for breach of express warranty, breach of implied warranty, fraudulent concealment and declaratory relief (In re: Atlas Roofing Corporation Chalet Shingle Products liability Litigation, MDL 2495, Michael Mazza, et al. v. Atlas Roofing Corporation, No. 13-CV-4218-TWT, N.D. Ga.).



Plaintiff: Claims Against Retailer Over Dimensional Lumber Are Sufficient
CHICAGO - A man who claims that Home Depot Inc. is violating the Illinois Consumer Fraud Act (ICFA) when selling lumber that does not measure to its advertised specifications says in a July 21 brief filed in Illinois federal court that his allegations sufficiently state a claim under Federal Rule of Civil Procedure 12b(6) (Mikhail Abramov v. Home Depot Inc., No. 17-cv-01860, N.D. Ill.).



Home Builder Says Knowledge Of Faulty Stucco Warrants Summary Judgment
ORLANDO, Fla. - Pulte Home Corp. moved for summary judgment in Florida federal court on July 21, arguing that purchasers of homes with stucco that was improperly installed are not entitled to damages because they knew of the defect at the time they purchased their homes (Shaun Gazzara, et al. v. Pulte Home Corporation, No. 16-cv-657-Orl-31TBS, M.D. Fla.).



Improper Stucco Installation Caused Moisture Intrusion, Man Says
NEW PORT RICHEY, Fla. - A man filed a lawsuit in Florida state court on Aug. 1 claiming that the improper installation of stucco on his home by the builder and a number of subcontractors caused moisture intrusion that decreased the value of the property and caused damage (Eugenio Lora v. Lennar Homes, et al., No. 2017-CA-002453, Fla. Cir., Pasco Co.).



Man Says Home Builder, Subcontractors Liable For Cracking Stucco
GREEN COVE SPRINGS, Fla. - A man filed suit in Florida state court on July 24 against the builder of his home, claiming that the company as well as the painting and stucco subcontractors it hired are liable for damage to his home caused by an improperly installed stucco system (Saulo O. Meneses v. KB Home Jacksonville LLC, No. 2017-CA-743, Fla. Cir., Clay Co.).



Homeowner Says Improperly Applied Stucco Violates Florida Building Code
TAMPA, Fla. - A Florida woman filed a lawsuit in state court against the builder of her home on July 20, claiming that the stucco on the home was improperly applied in violation of the Florida Building Code (Tammy Marie Sullivan v. Pulte Home Corporation, No. 17-CA-006860, Fla. Cir., Hillsborough Co.).



Florida Couple Sues Home Builder Over Cracked Stucco
ORLANDO, Fla. - A Florida couple filed a lawsuit in state court on July 20 against the builder of their home, claiming that its improper installation of stucco violated the Florida Building Code and resulted in cracks (Mabel Rojas, et al. v. KB Home Orlando LLC, No. 2017-CA-006631, Fla. Cir, Orange Co.).



Judge Stays Construction Defects Suit Pending Possible Settlement
ORLANDO, Fla. - A Florida judge on June 26 granted a homeowners' association's motion to stay proceedings in a construction defects suit until November based on the association's representation that it is seeking to settle the action with the builder (Somerset Chase Homeowners Association Inc. v. CalAtlantic Group Inc., et al., No. 2017-CA-005546-O, Fla. Cir., Orange Co.).