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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®


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.).

Judge Dismisses Class Action Suit Over Pulte's Use Of Allegedly Defective Stucco
ORLANDO, Fla. - A federal judge in Florida on Sept. 8 dismissed a class action suit against Pulte Home Corp. accusing the company of building homes with defective stucco siding, ruling that the negligence claim is barred by the economic loss doctrine and that the state does not recognize a cause of action for a builder's alleged intentional installation of defective stucco (Shaun Parker Gazzara, et al. v. Pulte Home Corporation, No. 16-cv-657-Orl-31TBS, M.D. Fla.; 2016 U.S. Dist. LEXIS 121348).

Magistrate Denies Plaintiffs' Request For Experts' Destructive Testing Documents
ORLANDO, Fla. - A federal magistrate judge in Florida on Sept. 6 quashed in part subpoenas served by plaintiffs who claim that homes built by Pulte Home Corp. were built with a defective stucco system on the defendant company's experts, ruling that information concerning destructive testing the experts conducted on certain homes was not subject to the exceptional circumstances exception to the work product doctrine (Shaun Parker Gazzara, et al. v. Pulte Home Corporation, No. 16-cv-657-Orl-31TBS, M.D. Fla.; 2016 U.S. Dist. LEXIS 119867).

D.R. Horton Ordered By Magistrate Judge To Produce List Of Lawsuits
ORLANDO, Fla. - D.R. Horton Inc. must respond to a subcontractor's request for information regarding other lawsuits the builder has been named a party in over allegedly defective stucco, after a federal magistrate judge in Florida on Oct. 3 ruled that the information is relevant (D.R. Horton Inc. v. H&H Stucco & Stone Inc., et al., No. 15-cv-2063-Orl-40TBS, M.D. Fla.; 2016 U.S. Dist. LEXIS 136603).

Judge Finds Replacement Windows Do Not Extend Warranty
CHARLESTON, S.C. - A federal judge in South Carolina on Sept. 26 awarded summary judgment to Pella Corp. on a man's breach of express warranty claim, ruling that replacement windows the company installed to remedy allegedly defective ones did not extend the 10-year limited warranty (In re: Pella Corporation Architect and Designer Series Windows Marketing, Sales Practices and Products Liability Litigation, MDL 2514, Case No. 14-mn-0000, John Romig Jr., et al. v. Pella Corporation, No. 14-cv-00433, D. S.C.; 2016 U.S. Dist. LEXIS 131282).

Colorado Appeals Court: Statute Of Repose Barred Claims Against Subcontractor
DENVER - A Colorado appeals panel on Sept. 8 affirmed a trial court's decision to grant a subcontractor's motion for summary judgment, holding that a settlement between the window supplier and the builder of a condominium complex did not toll the six-year statute of repose (Sierra Pacific Industries Inc. v. Jason Bradbury, d/b/a Bradbury Construction Inc., No. 15CA1652, Colo. App., Div. 1; 2016 Colo. App. LEXIS 1274).

Judge Refuses To Apply Judicial Estoppel Doctrine To Declaratory Judgment Suit
GULFPORT, Miss. - A federal judge in Mississippi on Sept. 15 denied a defendant company's motion for summary judgment in a suit seeking a declaration that the defendant is required to contribute to an arbitration award from a construction defects lawsuit, finding that the plaintiff is not judicially estopped from bringing suit because the present lawsuit differs from the earlier action (RDS Real Estate LLC v. Abrams Group Construction LLC, et al., No. 15-cv-361-LG-RHW, S.D. Miss.; 2016 U.S. Dist. LEXIS 125652).

Nevada High Court Denies Builders' Request To Review Presuit Notification Rulings
CARSON CITY, Nev. - A three-justice panel of the Nevada Supreme Court on Sept. 16 denied petitions for writs and mandamus filed by two home builders claiming that a state court judge erred when denying their motions for summary judgment over the adequacy of presuit notifications filed by homeowners alleging construction defects, holding that the arguments raised in the petitions were not properly vetted (Pardee Homes of Nevada Inc. v. Eighth Judicial District Court of the State of Nevada, No. 70710, Nev. Sup.; 2016 Nev. Unpub. LEXIS 750; PN II Inc., d/b/a Pulte Homes of Nevada v. Eighth Judicial District Court of the State of Nevada, No. 71051, Nev. Sup.; 2016 Nev. Unpub. LEXIS 751).

Oregon Appeals Court Finds Builder, Subcontractors Are Prevailing Parties On Appeal
SALEM, Ore. - An Oregon appeals court panel on Sept. 28 held that a construction company and subcontractors accused of construction defects were prevailing parties on appeal and eligible to receive attorney fees, finding that it previously erred when ruling that a homeowners association was the prevailing party on appeal after it was only partially successful in challenging judgments entered in favor of the defendant companies (The Village at North Pointe Condominiums Association v. Bloedel Construction Co., et al., No. A151032, Ore. App.; 2016 Ore. App. LEXIS 1193).

Spray Foam Maker Says Lack Of Expert Testimony Dooms Couple's Suit
NEW HAVEN, Conn. - The manufacturer of a spray polyurethane foam (SPF) says in a Sept. 15 brief filed in Connecticut federal court that it should be awarded summary judgment because a couple has failed to produce any reliable expert testimony supporting their claims that its product caused them to suffer physical injuries and property damage (Richard Beyer, et al. v. Anchor Insulation Co. Inc., et al., No. 13 CV 1576, D. Conn.).

Couple Says Spray Foam Makers', Installer's Experts' Opinions Are Unreliable
NEW HAVEN, Conn. - A couple claiming that they suffered physical injuries and property damage as a result of spray polyurethane foam (SPF) installed in their home in October 2010 say in a Sept. 15 motion filed in Connecticut federal court that the opinions of experts proffering testimony on behalf of the installer and makers of the product should be excluded because they are unreliable (Richard Beyer, et al. v. Anchor Insulation Co. Inc., et al., No. 13 CV 1576, D. Conn.).

Magistrate Judge Says Settlement Can Be Executed Without Party's Representative
LAS VEGAS - A federal magistrate judge in Nevada on Sept. 23 held that a $63,000 settlement between a MS Concrete Co. and U.S. Home Corp. can be deemed enforceable despite counsel's inability to locate a local representative for the concrete subcontractor, holding that no other parties objected to the settlement and finding that the terms of the agreement were reached in good faith (Azure Manor/Rancho de Paz Homeowners Association, et al. v. D.R. Horton Inc., et al., No. 15-cv-01623-GMN-VCF, D. Nev.; 2016 U.S. Dist. LEXIS 130494).