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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®



 



Colorado Supreme Court Reinstates Contractor's Third-Party Claims For Defects
DENVER - An en banc Colorado Supreme Court on Feb. 27 reversed a trial court's ruling entering summary judgment against a general contractor on its third-party claims against two subcontractors, finding that the six-year statute of repose is irrelevant for third-party claims brought under Colorado Revised Statute Section 13-80-104(1)(b)(II) (Richard Goodman v. Heritage Builders, Inc., et al., No. 16SA193, Colo. Sup., 2017 Colo. LEXIS 153).



Montana High Court Upholds Ruling Awarding Summary Judgment To Builder, Architect
HELENA, Mont. - A Montana Supreme Court panel on Feb. 7 affirmed a ruling awarding summary judgment to a builder and an architect accused of defectively constructing a high school roof that partially collapsed following a snow storm in 2010, finding that the school district's lawsuit was barred by the 10-year statute of repose because the roof was being used for its intended purpose beginning in 1998 (Hill County High School District No. A. v. Dick Anderson Construction, Inc., et al., No. 16-0186, Mont. Sup., 2017 Mont. LEXIS 38).



Dismissal Of Unit Owners' Claims Against Designers, Suppliers Upheld On Appeal
CHICAGO - An Illinois appellate panel on Feb. 17 affirmed a trial court judge's decisions to dismiss claims for breach of the implied warranty of habitability brought by an association of condominium owners against designers and building materials suppliers, but held that the association could pursue a similar claim against subcontractors who worked on the complex (Sienna Court Condominium Association v. Champion Aluminum Corporation, d/b/a Champion Window and Door, et al., Nos. 14-3364, 14-3687, 14-3753, Ill. App., 1st Dist., 6th Div., 2017 Ill. App. LEXIS 86).



Contractor Not Required To Prove Negligence, Causation For Indemnification
PHOENIX - An Arizona appeals panel on Feb. 23 affirmed a trial court's judgment requiring a grading subcontractor to indemnify a general contractor for construction defects, ruling that the general contractor was not required to prove negligence or causation to support its request (Amberwood Development, Inc. v. Swann's Grading, Inc., No. 1-CA-CV 15-0786, Ariz. App., 1st Div., 2017 Ariz. App. Unpub. LEXIS 207).



Louisiana Appeals Court: Family's Claims Perempted By New Home Warranty Act
BATON ROUGE, La. - A Louisiana appeals panel on Feb. 17 affirmed rulings awarding summary judgment to a home builder and its insurer, finding that a family's allegations that defective workmanship caused a fire that destroyed the home were perempted by the New Home Warranty Act (NHWA) (James E. Shields Jr., et al. v. Alvin R. Savoie & Associates Inc., d/b/a Savoie Construction, et al., No. 2016 CA 0825 consolidated with No. 2016 CA 0826, La. App., 1st Cir., 2017 La. App. LEXIS 249).



Appeals Court Overturns Ruling Staying Construction Defects Case
SAN DIEGO - A California appeals panel on Feb. 10 vacated a trial court judge's ruling staying a lawsuit brought under the Right to Repair Act (RRA) for defects in the construction of 28 homes, finding that the builder's failure to timely respond to the notice of the defects warranted reversal (William Blanchette, et al. v. Superior Court of Imperial County, et al., No. D070545, Calif. App., 4th Dist., Div. 1, 2017 Cal. App. LEXIS 105).



Innocent Seller Provision Shields Building Supplier That Sold Chinese Drywall
JACKSON, Miss. - A building supply company that sold salvaged Chinese drywall to a contractor that built a couple's home is shielded from liability under the "innocent seller" provision of the Mississippi Products Liability Act (MPLA), the Mississippi Court of Appeals ruled Feb. 28 after finding that the supplier did not alter the product or know that it was salvaged (Kent Holifield, et al. v. City Salvage, Inc., No. 2015-CA-01293-COA, Miss. App., 2017 Miss. App. LEXIS 115).



Couple Cannot Pursue Personal Injury Claims From Spray Foam Fumes, Judge Rules
NEW HAVEN, Conn. - A federal judge in Connecticut on Feb. 17 held that a couple could pursue claims that allegedly improper installation of spray polyurethane foam (SPF) insulation in their home resulted in property damage requiring remediation but that they failed to provide causation evidence to show that they suffered respiratory problems after being exposed to volatile organic compound (VOC) vapors from the products (Richard Beyer, et al. v. Anchor Insulation Co. Inc., et al., No. 13 CV 1576, D. Conn., 2017 U.S. Dist. LEXIS 23434).



Couple: Expert's Supplemental Report Clarified Remediation Plan, Costs
NEW HAVEN, Conn. - A couple who claims that they suffered physical injuries and property damage as a result of spray polyurethane foam (SPF) insulation in their home say in a brief filed Feb. 1 in Connecticut federal court that a supplemental report submitted by one of their experts should not be stricken from the record because it contains new information about the remediation plan for their home that was added to the report to clarify any ambiguities (Richard Beyer, et al. v. Anchor Insulation Co. Inc., et al., No. 13 CV 1576, D. Conn.).



Plaintiffs Oppose Pausing Spray Foam Insulation Trial, Citing Wife's Surgery
NEW HAVEN, Conn. - A Connecticut couple on Feb. 2 asked a federal judge to deny a motion to continue an upcoming trial against the company they hired to install spray polyurethane foam (SPF) in their home, explaining that the female plaintiff is scheduled for a March 16 surgery that will keep her from walking for six months (Richard Beyer, et al. v. Anchor Insulation Co. Inc., et al., No. 13 CV 1576, D. Conn.).



Judge Dismisses Proposed Class Action Suit Over Faulty Air Conditioning Coils
AUGUSTA, Ga. - A federal judge in Georgia on Feb. 22 dismissed without prejudice a proposed class action suit accusing Daikin Industries Ltd. (DIL), Daikin Applied Americas Inc. (DAA) and Daikin North Americas LLC (DNA) of making and selling air conditioning units with faulty evaporator coils, ruling that a building owner lacks personal jurisdiction to assert claims against DIL and failed to state claims against DAA and DNA (Paws Holdings, LLC v. Daikin Industries, Ltd., et al., No. 16-58, S.D. Ga., 2017 U.S. Dist. LEXIS 24684).



Bankruptcy Judge Finds Plan Bars Some Construction Defect Claims
WILMINGTON, Del. - A federal bankruptcy judge in Delaware on Feb. 1 granted in part a homebuilder's motion to enjoin some condominium owners from pursuing construction defects claims against it, finding that the company's reorganization plan barred all allegations that arose before the company filed its plan (In re: Orleans Homebuilders, Inc., et al., No. 10-10684, Del. Bkcy., 2017 Bankr. LEXIS 483).



Judge Affirms Ruling That Contractor's Negligence Claim Over Shelf Angles Barred
RALEIGH, N.C. - A federal judge in North Carolina on Feb. 7 overruled a general contractor's argument that a bankruptcy court judge erred in finding that its negligence claim against a subcontractor who improperly installed shelf angles was barred by the economic loss doctrine, holding that the contractor was unable to show what damage resulted from the improper installation (Weaver Cooke Construction, LLC v. Randolph Stair and Rail Company, No. 14-CV-709-BR, E.D. N.C., 2017 U.S. Dist. LEXIS 19442).



Appeals Court Orders New Trial After Judge Overseeing Defects Case Retires
PHILADELPHIA - A Pennsylvania appeals panel on Feb. 17 ordered a new trial on liability and damages in a construction defects case after learning that the judge who presided over the suit had retired and that no other judge could prepare a supplemental opinion explaining his rulings (Leo J. Dolan v. Hurd Millwork Company Inc., et al., No. 2951 EDA 2015 Pa. Super., 2017 Pa. Super. Unpub. LEXIS 691).



Pella Says Plaintiffs' Arguments For Reconsideration Have Already Been Rejected
CHARLESTON, S.C. - Pella Corp. says in an opposition brief filed Feb. 16 that a federal judge in South Carolina should not reconsider his Dec. 12 ruling that plaintiffs' experts' opinions about defects in the company's Architect and Designer Series windows are unreliable because the plaintiffs' arguments have already been raised and were rejected (In re: Pella Corporation Architect and Designer Series Windows Marketing, Sales Practices and products Liability Litigation, MDL 2514, Case No. 14mn1, D. S.C.).



Homeowners Association's Firm Announces $1.5M Settlement To Resolve Defects Suit
SAN FRANCISCO - A law firm representing the owners of 46 condominiums and two commercial units at a refurbished building in San Francisco announced Feb. 7 that a $1.5 million settlement has been reached to resolve construction defect allegations against the general contractor and developer (201 Sansome Street Owners Association v. 201 Sansome Street, LP, et al., No. CGC-15-548022, Calif. Super., San Francisco Co.).



Homeowners Education Group Report Says Defects More Likely In Condominiums
FALLS CHURCH, Va. - The Community Associations Institute (CAI), a nonprofit group specializing in educating community associations and homeowners, released a report on Feb. 28 stating that construction defects are more likely found in condominiums than townhomes and that defects are more commonly the result of poor workmanship.



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.).