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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 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).

South Carolina High Court Reverses Ruling On Arbitration Clause's Enforceability
COLUMBIA, S.C. - A majority of the South Carolina Supreme Court on Aug. 17 overturned a lower court ruling that an arbitration clause in the warranty section of a home purchase agreement was unenforceable, holding that the scope of the clause was not limited to claims covered by the warranty (Ralph Wayne Parsons Jr., et al. v. John Wieland Homes and Neighborhoods of the Carolinas Inc., et al., No. 27655, S.C. Sup.; 2016 S.C. LEXIS 27).

Judge Finds Home Warranty's Arbitration Provision Unconscionable, Unenforceable
PHOENIX - A woman seeking a declaratory judgment stating that the arbitration provision in the home warranty that accompanied a home she purchased from Standard Pacific of Arizona Inc. was unenforceable was awarded summary judgment by a federal judge in Arizona on Aug. 12, after the judge found that the terms of the provision were unconscionable (Christine Arnold, et al. v. Standard Pacific of Arizona Inc., et al., No. CV-16-00452-PHX-DGC, D. Ariz.; 2016 U.S. Dist. LEXIS 107033).

Minnesota Appeals Court Finds Developer Liable For Damages From Defects
MINNEAPOLIS - A Minnesota appellate panel on Aug. 22 affirmed a trial court judge's ruling granting in part a homeowners association's motion for judgment as a matter of law (JMOL) finding that a developer could be liable for damages attributed to architectural defects in a building and reversed the portion of the judge's ruling denying the association's argument that the developer could also be liable for construction defects (650 North Main Association v. Frauenshuh Inc., et al., No. A15-1547, Minn. App., 2016 Minn. App. LEXIS 64).

Texas Appeals Court Reduces Amount of Damages Awarded Over Construction Defects
SAN ANTONIO - A Texas appeals panel on Aug. 24 ruled that a trial court judge erred by awarding a couple $200,394.76 in damages and attorney fees for alleged construction defects, ruling that the evidence did not support the amount of damages awarded and that the Texas Residential Commercial Liability Act (RCLA) limits the amount of attorney fees the plaintiffs could receive (Bryan Smith, d/b/a Vision Design and Build v. Robert Overby, et al., No. 04-15-00436-CV, Texas App., 4th Dist.; 2016 Texas App. LEXIS 9172).

Texas Appeals Court Finds Economic-Loss Doctrine Bars Suit Against Builder
DALLAS - A Texas appellate panel on Aug. 9 affirmed rulings for summary judgment in favor a home warranty company and builder of townhomes with allegedly defective foundations, ruling that the plaintiffs' claims against the home warranty company were untimely and that the claims against the builder were barred by the economic-loss doctrine (Barbara Meredith, et al. v. Jason Rose, et al., No. 05-15-00054-CV, Texas App., 5th Dist.; 2016 Texas App. LEXIS 8598).

Judge Finds Local Controversy Exception Warrants Remand Of Defects Suit
HONOLULU - A federal judge in Hawaii on Aug. 9 remanded sua sponte a class action lawsuit accusing D.R. Horton of building homes with defectively installed hurricane straps, finding that the local controversy exception to the Class Action Fairness Act (CAFA) stripped the court of jurisdiction (Charles Vitale, et al. v. D.R. Horton Inc., et al., No. 15-00312, D. Hawaii; 2016 U.S. Dist. LEXIS 105151).

Judge: Insurer Has No Duty To Defend Window Maker In Defects Suit
MADISON, Wis. - A federal judge in Wisconsin on Aug. 25 ruled that an insurance company has no duty to defend a manufacturer accused of making allegedly defective windows, finding that the Wisconsin Supreme Court's ruling in Wisconsin Pharmacal Co. LLC v. Nebraska Cultures of California Inc. (2016 WI. 14, 367 Wis. 2d 221 [2016]) made it clear that the integrated systems rule is applicable and does not require the insurer to provide coverage for damage caused to the homes of purchasers of the windows (Mary Haley, et al. v. Kolbe & Kolbe Millwork Co. Inc., No. 14-cv-99, W.D. Wis.; 2016 U.S. Dist. LEXIS 113752).

Judge Affirms Ruling Striking Expert's Supplemental Report Following Examination
NEW HAVEN, Conn. - A federal magistrate judge did not err when striking a supplemental report submitted by a doctor after he examined a couple who claims that they have sustained injuries as result of exposure to volatile organic compounds (VOCs) emitted by spray polyurethane foam (SPF), a federal judge in Connecticut held Aug. 26, ruling that the decision was not clearly erroneous or contrary to law (Richard Breyer, et al. v. Anchor Insulation Co. Inc., et al., No. 13 CV 1576, D. Conn.).

Magistrate Judge: Pulte Home Need Not Produce Names, Addresses Of Buyers
ORLANDO, Fla. - A federal magistrate judge in Florida on Aug. 30 denied plaintiffs' motion to compel Pulte Home Corp. to produce the names and addresses of individuals who purchased homes built with allegedly defective stucco, explaining that the requested information is not typically discoverable in the precertification stage (Shaun Parker Gazzara, et al. v. Pulte Home Corporation, No. 16-cv-657-Orl-31TBS, M.D. Fla.; 2016 U.S. Dist. LEXIS 116064).

10th Circuit Finds Home's Value Not Proper Measure For Damages
DENVER - A federal judge in Kansas did not err when vacating a jury's verdict awarding $185,000 to a woman accused a company that builds premanufactured homes of fraud by omission and negligent misrepresentation, a 10th Circuit U.S. Court of Appeals ruled July 20, holding that the cost of repairs rather than the home's value is a proper measure for determining damages (Leona Feldt v. Heritage Homes of Nebraska Inc., et al., No. 15-3109, 10th Cir.; 2016 U.S. App. LEXIS 13356).

Divided S.C. High Court Finds Builder's Arbitration Clause Unenforceable
COLUMBIA, S.C. - A 3-2 panel of the South Carolina Supreme Court on July 6 affirmed an appellate court's decision to sustain a trial court's ruling denying D.R. Horton Inc.'s motion to compel arbitration on a construction defects lawsuit, after agreeing that an arbitration clause was unenforceable because its terms were unconscionable (Gregory W. Smith v. D.R. Horton Inc., et al., No. 27645, S.C. Sup.; 2016 S.C. LEXIS 155).

New Jersey Appeals Court Affirms Ruling Denying Motion To Compel Arbitration
TRENTON, N.J. - A New Jersey appellate panel on July 6 upheld a judge's ruling denying a contractor's motion to compel arbitration, finding that the arbitration clause in a home sales agreement did not sufficiently inform a couple of their waiver to a right to pursue their claims in a judicial forum (Eric Epstein, et al. v. Richard T. Conboy, No. A-2135-15T3, N.J. Super., App. Div.; 2016 N.J. Super. Unpub. LEXIS 1560).

Judge Certifies Class For California Homeowners With Allegedly Defective Roof Tiles
SACRAMENTO, Calif. - In an order entered July 5, a California federal judge certified a class for consumers whose homes have roofing tiles that were made by Dura-Loc Roofing Systems Limited that are allegedly defective because they are not UV resistant, finding that common evidence and proof can determine if the shingles are defective, if the shingles did not comply with the limited warranty and if Metals USA Inc., the successor to Dura-Loc, can be liable for damages (James Wilson, et al. v. Metals USA Inc., No. 12-CV-0568-KJM-CKD, E.D. Calif.).

Pa. Appeals Court Finds Privity Not Required For Fraud, Trade Practices Claims
PHILADELPHIA - A couple's lawsuit against the builder of a home they purchased from another couple in 2011 was reinstated by a Pennsylvania Superior Court panel on July 26, after it found that privity was not required for the plaintiffs to bring claims for fraud and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL) (Christopher Adams, et al. v. Hellings Builders Inc., No. 1407 EDA 2015, Pa. Super.; 2016 Pa. Super. Unpub. LEXIS 2720).

California Appeals Court Finds 2nd Suit Over Roof Involved Same Primary Right
SAN FRANCISCO - A couple's second lawsuit against the sellers of a home with a leaky roof, the contractors who installed the roof and the contractor who attempted to repair the roof contained the same primary right as an earlier suit that was dismissed by a state court judge, a California appeals panel ruled July 22 in affirming a ruling sustaining defendants' motions for demurrer and summary judgment (Alan Kizor, et al v. Blackwood Associates Inc., et al., No. A144672, Calif. App., 1st Dist., Div. 3; 2016 Cal. App. Unpub. LEXIS 5442).

Federal Judge Grants Summary Judgment To Home Depot In Tornado Deaths Suit
KANSAS CITY, Mo. - A federal judge in Missouri on July 21 entered judgment in favor of Home Depot and its development company after finding that it was not at fault for a wall that fell down and killed three people during a tornado (Edie Housel v. HD Development of Maryland Inc., et al., No. 3:14-cv-05084-MDH,W.D. Mo.; 2016 U.S. Dist. LEXIS 95142).

Verdict For Goodyear Upheld In Class Suit Alleging Faulty Hoses
DENVER - The 10th Circuit U.S. Court of Appeals on July 12 affirmed a jury verdict in favor of Goodyear Tire & Rubber Co. in a class complaint accusing the company of manufacturing faulty radiant heat tubing (David Helmer, et al. v. Goodyear Tire & Rubber Co., No. 15-1214, 10th Cir.; 2016 U.S. App. LEXIS 12779).

Magistrate Judge Finds Plaintiffs' Expert's Additional Report Was Not Supplemental
NEW HAVEN, Conn. - A federal magistrate judge in Connecticut on July 6 granted defendants' motion to strike the additional report of a doctor who examined a couple who claim that they sustained injuries as a result of exposure to volatile organic compounds (VOCs) emitted by spray polyurethane foam (SPF), finding that the expert's opinions did not supplement his original report (Richard Breyer, et al. v. Anchor Insulation Co. Inc., et al., No. 13 CV 1576, D. Conn.).

New Mexico Panel Finds Infrastructure Work Is Subject To Statute Of Repose
ALBEQUERQUE, N.M. - A New Mexico Court of Appeals panel on July 12 affirmed a ruling awarding summary judgment to a developer, finding that it substantially completed infrastructure work 10 years before a couple filed suit claiming that the defendant company's work caused defects to their home (Jason B. Damon, et al. v. Vista Del Norte Development LLC, et al., No. 33,775, N.M. App.; 2016 N.M. App. LEXIS 52).

New Mexico Panel: Judge Must Determine Defendants' Knowledge Of Counsel's Conduct
ALBUQUERQUE, N.M. - A New Mexico Court of Appeals panel on July 21 reversed a trial court judge's decision to deny a ruling to reconsider an award of default judgment entered against the builder and sellers of a house that was riddled with construction defects, finding that the judge erred when not considering whether the defendants knew their counsel's use of narcotic painkillers affected his ability to defend against the plaintiffs' claims (Henry P. Marquez v. Frank Larrabee, et al., No. 33,370, N.M. App.; 2016 N.M. App. LEXIS 57).

Texas Appeals Court Upholds Builder's Summary Judgment Ruling Over Defects
FORT WORTH, Texas - A Texas appellate court panel on June 30 affirmed a ruling awarding summary judgment to a home builder accused of construction defects, finding that the plaintiffs failed to explain how their evidence presented in opposition to summary judgment supported their allegations (Peter Payne, et al. v. Highland Homes Ltd., No. 02-14-00067-CV, Texas App., 2nd Dist.; 2016 Texas App. LEXIS 6987).

New York Justice Finds Defendants Liable For Damage Caused By Excavation Work
NEW YORK - A New York state court justice on July 22 awarded partial summary judgment to a couple who claim that excavation activities to an adjacent property caused damage to their home, finding that the plaintiffs established that the defendants were liable (Jack Vitale, et al. v. RLD Group LLC, et al., No. 704272/2013, N.Y. Sup., Queens Co.; 2016 N.Y. Misc. LEXIS 2792).