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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®


Association Can Represent Subsequent Buyers In Construction Defects Suit
LAS VEGAS - A homeowners' association has standing to represent subsequent buyers of condominiums that allegedly contain construction defects, but not sellers of the units, the en banc Nevada Supreme Court ruled Sept. 27 (High Noon at Arlington Ranch Homeowners Association v. Eighth Judicial District Court of the State of Nevada, In and For the County of Clark, et al., No. 65456, Nev. Sup., 2017 Nev. LEXIS 96).

Nevada High Court: Subsequent Buyers Can Be Represented By Association
LAS VEGAS - A panel of the Nevada Supreme Court on Oct. 20 held that subsequent purchasers of condominium units can be represented in a construction defects lawsuit filed by a homeowners association, citing an earlier ruling in which the court found that Nevada law supports the assertion that associations represent all unit owners within a community (Grand Canyon Village Homeowners Association v. Eighth Judicial District Court of the State of Nevada, In and For the County of Clark, et al., No. 66603, Nev. Sup., 2017 Nev. Unpub. LEXIS 923).

Subsequent Buyers Of Home Cannot Pursue Claims Against Roofer, Judge Says
FAIRFAX, Va. - A Virginia judge on Oct. 23 sustained a roofing subcontractor's demurrer to a lawsuit brought by the subsequent buyers of a home, finding that the couple could not pursue claims for breach of warranty and violation of the Virginia Consumer Protection Act (VCPA) because they were not parties to an agreement between the roofer and the general contractor (William Johnston, et al. v. Dietrich A. Stephan, et al., No. CL-2017-5007, Va. Cir., Fairfax Co., 2017 Va. Cir. LEXIS 309).

Texas Appeals Court Says Statute Of Repose Bars Suit Over Retaining Wall
DALLAS - The builder of an allegedly defective retaining wall did not have the burden of showing that it did not engage in any willful misconduct that would prevent the application of the state's 10-year statute of repose, a Texas appeals panel ruled Oct. 9 in affirming the builder's summary judgment award (Charles Brooks v. CalAtlantic Homes of Texas, Inc., et al., No. 05-16-01203-CV, Texas App., 5th Dist., 2017 Texas App. LEXIS 9466).

Judge Dismisses Class Action Over Dimensional Lumber Measurements
CHICAGO - A federal judge in Illinois on Sept. 29 dismissed with prejudice a class action claiming that the home improvement store Menard Inc. violated the Illinois Consumer Fraud Act (ICFA) when selling dimensional lumber that was not the size listed on the label, finding that while the plaintiffs had standing, the labels were not misleading because they do not have inch-mark symbols (Michael Fuchs, et al. v. Menard, Inc., No. 17-01752, N.D. Ill., 2017 U.S. Dist. LEXIS 160336).

Plaintiffs Will Ask 7th Circuit To Review Dismissal Of Dimensional Lumber Suit
CHICAGO - Two men who initiated a class action lawsuit against a home improvement store claiming that the company falsely advertised the size of dimensional lumber on Oct. 30 filed a notice of appeal in Illinois federal court stating that they intend to appeal a Sept. 29 ruling dismissing their suit (Michael Fuchs, et al. v. Menard, Inc., No. 17-01752, N.D. Ill.).

Panel: Judge Did Not Err In Ordering Installer To Replace, Not Repair, Windows
HARRISBURG, Pa. - A Pennsylvania trial court judge did not err in awarding $67,420.25 in damages to a property owner for water intrusion caused by improperly installed windows, a state appeals panel ruled Oct. 10, holding that expert testimony supported the finding that replacing the windows rather than repairing them was the most appropriate remedy (700 EBA, LLC v. Weaver's Glass & Building Specialties, Inc., No. 1868 MDA 2016, Pa. Super., 2017 Pa. Super. Unpub. LEXIS 3728).

Window Sealant Maker Ordered By Judge To Produce Complaints about Malfunctions
RUTLAND, Vt. - The manufacturer of an allegedly defective window sealant was ordered by a federal judge in Vermont on Oct. 6 to produce complaints the company received about the sealant dripping onto window panes or spreading from its intended location for an 11-year period (H. Hirschmann, Ltd. v. Green Mountain Glass, LLC, et al., No. 15-cv-00034, D. Vt.).

Iowa Appeals Court Majority Says Man Posing As Contractor Is Builder-Vendor
DES MOINES - A man who promoted himself as a general contractor on a home that contained construction defects could be considered a builder-vendor subject to liability for breach of the implied warranty of workerlike construction, a 2-1 panel of the Iowa Court of Appeals ruled Oct. 25 (David Sokol, et al. v. Robert Morrissey, et al., No. 16-0801, Iowa App., 2017 Iowa App. LEXIS 1104).

Evidence Shows Roofing Subcontractor Not Liable For Leak, Appeals Court Says
HOUSTON - A Texas judge did not err when finding in favor of a roofing subcontractor in a suit brought by the general contractor who built an outpatient medical center, a state appellate panel ruled Oct. 19, finding that there was no evidence showing that the defendant failed to install metal flashing that would have prevented water intrusion that damaged the building following a heavy rainfall in January 2012 (Hensel Phelps Construction Co. v. Royal American Services, Inc., No. 01-16-00045-CV, Texas App., 1st Dist., 2017 Texas App. LEXIS 9834).

N.Y. Justice Orders Condo Owner To Repair Problems Causing Water Infiltration
NEW YORK - A New York trial court justice on Oct. 10 ordered the owner of a condominium building to immediately repair exterior issues that are causing water infiltration in a couple's penthouse unit that has resulted in mold growth (Shane McMahon, et al. v. Cobblestone Lofts Condominium, et al., No. 151136/2014, N.Y. Sup., New York Co., 2017 N.Y. Misc. LEXIS 3869).

Man Files Suit Against Developer, Builder, Contractors Over Defects
RIVERSIDE, Calif. - A California man on Oct. 23 filed a lawsuit in state court against KB Home Coastal Inc., as well as the builders and contractors who built his home, alleging that the defendants' violations of the California Building Code resulted in water intrusion and other damages to the structure (Nicholas Weg, et al. v. KB Home Coastal Inc., et al., No. RIC-1720019, Calif. Super., Riverside Co.).

Woman Sues Del Webb, Pulte Home Over Water Intrusion, Other Defects
SACRAMENTO, Calif. - A woman filed a lawsuit in California state court on Oct. 17, claiming that Pulte Home Corp., Del Webb California Corp. and others are liable for construction defects in her Elk Grove, Calif., home that resulted in water intrusion and other issues that led to a diminution in value (Lorraine Heard v. Pulte Home Corporation, et al., No. 34-2017-00220738, Calif. Super., Sacramento Co.).

Common Areas Are Not Subject To Defects Law, Nevada High Court Says
LAS VEGAS - A Nevada Supreme Court panel on Sept. 29 upheld a trial court judge's ruling that a home builder cannot pursue construction defect claims against a company that installed concrete slabs and common areas in an RV lot because the slabs and buildings were not structures intended for habitation (KB Home Nevada Inc. v. Dunrite Construction, Inc., et al., Nos. 68343, 68449, Nev. Sup., 2017 Nev. LEXIS 813).

Woman: Class's Claims Against Home Sellers, Contractor Identical To State Suit
BEAUFORT, S.C. - A woman seeking to represent a proposed class of homeowners claiming that a general contractor, Del Webb Communities Inc., and Pulte Homes Inc. are liable for damages stemming from improperly installed stucco says in an Oct. 13 motion filed in South Carolina federal court that her class should be certified because it is identical to a class that was certified in state court (Jacqueline L. Craft v. South Carolina State Plastering, LLC, et al., No. 15-cv-5080-PMD, D. S.C.).

Tennis Court Installer's 'Him, Not Me' Suit Dismissed By Federal Judge
GREENBELT, Md. - A tennis court installer's third-party suit against an engineer hired by a homeowners association to identify any issues with the reinstallation of the court was dismissed Oct. 18 by a federal judge in Maryland who found that the lawsuit was simply a "him, not me" complaint (Somerset House Management Association, Inc. v. Bishop's Tennis Inc., et al., No. 16-3375, D. Md., 2017 U.S. Dist. LEXIS 172133).

New York Justice Dismisses Consulting Services Company From Construction Defects Suit
NEW YORK - A construction consulting services company was dismissed from a third-party action brought against it and other contractors by a condominium buildings' sponsor by a trial court justice in New York on Oct. 26 after he found that the agreement between the sponsor and the company did not include an indemnity provision (Board of Managers of the 20 Henry Street Condominium v. CJUF III 20 Henry Property, LLC, et al., No. 500289/15, N.Y. Sup., Kings Co., 2017 N.Y. Misc. LEXIS 4057).

Lumber Liquidators Announces MOU To Settle Formaldehyde Flooring Suit
ALEXANDRIA, Va. - Lumber Liquidators Inc. announced Oct. 24 that it entered into a memorandum of understanding (MOU) to settle litigation related to Chinese-manufactured laminate flooring that allegedly emits excessive levels of formaldehyde (In re: Lumber Liquidators Chinese-Manufactured Flooring Products Marketing, Sales Practices and Products Liability Litigation, MDL 2627, Case No. 15-md-2627).

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.).