FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

The Unwavering Un-waivable Implied Warranty of Workmanship and Habitability in Arizona

January 23, 2023 — Robert A. Henry & Emily R. Parker - Snell & Wilmer Real Estate Litigation Blog
The Arizona Supreme Court recently issued an opinion on the scope of the implied warranty of workmanship and habitability (the “implied warranty”) in contracts between homebuyers and builder/vendors that provides clear guidance of the law in this area, specifically on the issue of whether the implied warranty can be waived or disclaimed. It is also an interesting and helpful read for those who engage in new home residential sales and real estate transactions generally. The case: Zambrano v. M & RC, II LLC, 254 Ariz. 53 (2022). The takeaway holding: the implied warranty of workmanship and habitability cannot, under any circumstances, be disclaimed or waived. From a practice perspective, the foregoing is likely all one needs to ultimately know. However, the majority opinion (authored by Justice Timmer) and the dissent (authored by Justice King, and joined by Justice Bolick) are in these authors’ opinions worth a read for those who want a better understanding of the contours of how “public policy” plays into the analysis of the enforceability of contract terms, especially in the real estate context and even more particularly in connection with contracts for the sale of new homes. The careful analysis of both the majority opinion and the dissent provides an excellent history of the implied warranty, the public policy behind it, and its scope and application in the context of competing public policies, most notably the freedom to contract. Reprinted courtesy of Robert A. Henry, Snell & Wilmer and Emily R. Parker, Snell & Wilmer Mr. Henry may be contacted at bhenry@swlaw.com Ms. Parker may be contacted at eparker@swlaw.com Read the court decision
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Nondelegable Duty of Care Owed to Third Persons

May 29, 2023 — David Adelstein - Florida Construction Legal Updates
Although a personal injury case, the recent opinion in Garcia v. Southern Cleaning Service, Inc., 48 Fla.L.Weekly D977a (Fla. 1stDCA 2023) raises an interesting issue regarding nondelegable duties owed to third persons applicable in negligence actions. Remember, in order for there to be a negligence claim, the defendant MUST owe a duty of care to the plaintiff. No duty, no negligence claim. What if a defendant’s duty was delegated to, say, an independent contractor?

[A] party that hires an independent contractor may be liable for the contractor’s negligence where a nondelegable duty is involved. Such a duty may be imposed by statute, contract, or the common law. In determining whether a duty is nondelegable, the question is whether the responsibility at issue is so important to the community that an employer should not be allowed to transfer it to a third party. Garcia, supra, (internal citations omitted).

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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Who Would Face Liability For Oroville Dam Management: Brett Moore Authors Law360 Article

February 23, 2017 — Brett G. Moore - Haight Brown & Bonesteel LLP
On February 12, 2017, the Butte County Sheriff ordered the evacuation of more than 180,000 people in the communities surrounding California’s Oroville Dam after officials spotted severe erosion in the dam’s emergency spillway. The Oroville Dam facilities are managed on by the Federal Energy Regulatory Commission, which licenses the project to California’s Department of Water Resources (DWR). In his Law360 article “Who Would Face Liability For Oroville Dam Management,” Attorney Brett Moore discusses the liability of the agencies involved in managing the Oroville facilities should the dam fail again. Read the court decision
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Reprinted courtesy of Brett G. Moore, Haight Brown & Bonesteel LLP
Mr. Moore may be contacted at bmoore@hbblaw.com

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Are We Headed for a Work Shortage?

June 17, 2015 — Craig Martin – Construction Contractor Advisor
A recent Wall Street Journal article, Worker Shortage Hammers Builders, noted that construction industry employers are facing a tight labor market. “U.S. builders shed more than 2 million jobs during and after the housing bust. Now they say they can’t find enough carpenters, electricians, plumbers and other craftsmen for a growing pipeline of work.” That is certainly consistent with everything that I’ve heard and read about construction companies in the Midwest. Unfortunately, it seems as though the problem is only going to get worse. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

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Fraud and Construction Contracts- Like Oil and Water?

December 31, 2014 — Christopher G. Hill – Construction Law Musings
We have discussed the interaction of fraud and breach of contract actions on occasion here at Construction Law Musings. In most cases the two do not mix. Between the economic loss rule and the general desire of Virginia courts to keep contract actions and tort actions separate, most of the time it is impossible to make a fraud action relating to a contract stick in a construction context. The Virginia Supreme Court recently confirmed this fraud/contract distinction. As discussed in the Virginia Real Estate Land Use & Construction Law blog (Thanks Heidi!), Station No. 2, LLC v. Lynch, et. al. strongly re-states the Virginia courts’ strong reluctance to allow a breach of contract turn into a claim for fraud. Without re-iterating the great discussion of the facts of the case found in the post by Heidi Meizner, suffice it to say that certain contractual promises between and among the parties were not fulfilled much to Station 2, LLC’s detriment. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Texas res judicata and co-insurer defense costs contribution

March 23, 2011 — CDCoverage.com

In Truck Ins. Exchange v. Mid-Continent Casualty Co., No. 03-08-00526-CV (Tex. App. 3d Aug. 27, 2010), insured contractor DCI was sued by the project owner seeking damages for defective construction. DCI tendered its defense to its CGL insurers Truck and Mid-Continent. Truck agreed to defend while Mid-Continent denied a defense. While the underlying suit was pending, Mid-Continent sued DCI, but not Truck, and obtained a judicial declaration of no duty to defend or indemnify DCI in the underlying suit. After settling the underlying suit, Truck sued Mid-Continent seeking contribution towards defense costs and indemnity payments. The state trial court entered summary judgment for Mid-Continent. The intermediate appellate court affirmed.



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Contractors’ Right to Sue in Washington Requires Registration

July 03, 2022 — John Leary - Gordon & Rees Construction Law Blog
Summary: In Washington, contractors must be properly registered in order to pursue a legal action against a customer for breach of contract. Dobson v. Archibald, a February 2022 decision by the Washington Court of Appeals, reinforced how the governing statute – RCW 18.27.080 – does not simply create an affirmative defense but establishes a mandatory pleading prerequisite.1 Discussion: In 2018, Archibald hired Dobson to refinish his hardwood floors for $3,200. Dobson was not a registered contractor. She had been referred to Archibald by acquaintances who were familiar with her construction and home repair work, including improvements Dobson had made to her own home. Archibald paid Dobson a $700 deposit before Dobson began her work. At the completion of the floor repair project, Archibald was unhappy with the appearance of the floors and informed Dobson that he would not pay the remaining $2,500. Read the court decision
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Reprinted courtesy of John Leary, Gordon & Rees
Mr. Leary may be contacted at jleary@grsm.com

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How the Jury Divided $112M in Seattle Crane Collapse Damages

April 04, 2022 — Richard Korman - Engineering News-Record
The jury verdict in a wrongful death lawsuit against companies involved in a 2019 Seattle crane collapse that killed four people split damages among three different companies—and also blamed a fourth firm that wasn't a defendant—but not in a way that matched the state safety fines proposed against the firms. Reprinted courtesy of Richard Korman, Engineering News-Record Mr. Korman may be contacted at kormanr@enr.com Read the full story... Read the court decision
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