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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®


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.).

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.).