Statutory Time Limits for Construction Defects in Massachusetts
November 27, 2013 —
CDJ STAFFConstruction defect claims are governed by a section of the Massachusetts laws and allow for three years after the work was completed, unless the defect is “inherently unknowable,” according to a post by John Shaffer on the web site of his firm, Marcus, Errico, Emmer & Brooks, a New England law firm that specializes in condominium law. Those “inherently unknowable” defects fall into the six-year statute of repose.
If, for example, a roof doesn’t show “significant water leakage” until after the end of the statutory period, “the association is out of luck and the responsible parties are off the hook,” writes Mr. Shaffer. “Even if the association could prove conclusively that the roof was improperly constructed and caused significant damage, the association’s claim will be barred.”
One problem condominium associations can face is that defects in the earliest phases of building can sometimes become apparent while the developer still controls the board. “While a developer in control of a board has the same fiduciary obligation as owner-elected trustees to protect the association’s interests, it is probably safe to assume that few developers will be inclined to sue themselves.” Here, Mr. Shaffer notes that owners can join together and either “hasten the transition to owner control of the association” or “convince them to correct the identified deficiencies.”
Mr. Shaffer notes that some questions concerning the statute of repose haven’t been answered by the Massachusetts courts. He does assure readers that “developers will no doubt argue that the statute of limitations has expired on defects because the association discovered or ‘should have discovered’ their existence more than three years before the lawsuit was started.” He advises condominium associations to calculate “their filing deadlines as conservatively as possible.”
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You’ve Been Suspended – Were You Ready?
April 20, 2020 —
Curtis W. Martin, Patrick J. Greene, Jr. & Levi W. Barrett - Peckar & Abramson“Effective tomorrow … the City is suspending all regular activity at construction sites in Boston.” This was just one of the surprises that greeted contractors last week. Contractors and owners with projects across the country are scrambling to comply with mandated governmental suspensions. Project participants should begin contingency planning for possible project shutdowns.
Reacting to Suspension
Your legal rights and remedies will be largely determined by your contract and the laws applicable to it. But some basic principles will be applicable depending on the source of the suspension.
Suspension by the Owner: An owner work suspension suggests review of the contract’s suspension of work clause. Federal contractors would look to the FAR Suspension of Work clause, FAR 52.242-14, but that is applicable if the suspension is by the Contracting Officer; the US would argue that a systemic suspension was a sovereign act and outside the FAR clause.
Contractors for private work and state or municipal work may have contractual suspension of work clauses. At least some suspension clauses provide relief for time and money.
Reprinted courtesy of Peckar & Abramson attorneys
Curtis W. Martin,
Patrick J. Greene and
Levi W. Barrett
Mr. Martin may be contacted at cmartin@pecklaw.com
Mr. Greene may be contacted at pgreene@pecklaw.com
Mr. Barrett may be contacted at lbarrett@pecklaw.com
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Coverage Established for Property Damage Caused by Added Product
April 28, 2014 —
Tred R. Eyerly – Insurance Law HawaiiApplying Minnesota law, the federal district court determined the supplier of contaminated dried milk had coverage. The Netherlands Ins. Co. v. Main Street Ingredients, LLC, 2014 WL 1012793 (8th Cir. March 18, 2014).
In 2007, Plainview Milk Products sold dried milk to Main Street Ingredients, LLC, who then sold the dried milk to Malt-O-Meal. The dried milk was used by Malt-O-Meal in its instant oatmeal products.
In June 2009, the FDA found Salmonella bacteria at Plainview's plant. The FDA also observed thirteen instances of insanitary conditions in the plant. Plainview issued a product recall notice announcing a "voluntary recall" of dried milk, stating its dried milk had "the potential to be contaminated with Salmonella."
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Hawaii Court of Appeals Affirms Broker's Liability for Failure to Renew Coverage
July 16, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe Hawaii Intermediate Court of Appeals affirmed the jury's finding that the broker was liable for failing to secure coverage for the insureds' home. Certain Underwriters at Lloyd's London v. Vreeken, 2014 Haw. App. LEXIS 322 (Haw. Ct. App. June 30, 2014).
Based upon their dealings with the broker, the insureds thought they had coverage for their home from March 3, 2004 to March 3, 2005 and from May 9, 2005 to May 8, 2006. The house was elevated nine feet above the ground for structural renovation, but collapsed on May 23, 2005. The original policy had lapsed on March 3, 2005. The second policy was voided because the application prepared by the broker stated there was no renovation work underway on the property.
The insureds sued. The jury found the broker and its agent liable for general, special and punitive damages. An appeal was filed. The ICA largely affirmed after addressing the many points raised on appeal.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Suppliers of Inherently Dangerous Raw Materials Remain Excluded from the Protections of the Component Parts Doctrine
December 02, 2015 —
Leah B. Mason & Michael J. Worth – Haight Brown & Bonesteel, LLPIn Brady v. Calsol, Inc. 2015 No. B262028, the California Court of Appeal, Second District, reversed summary judgment for a raw materials supplier where there was a triable issue of fact as to whether the benzene levels contained in the supplier’s mineral spirits could have caused plaintiffs’ leukemia.
Plaintiffs were mechanics Ernest Brady and David Gibbs, who used Safety-Kleen solvent to degrease automotive parts. Brady and Gibbs were diagnosed with leukemia allegedly caused by exposure to Safety-Kleen solvent during the course of their employment. In 2008, Plaintiffs sued Calsol, Inc., a distributor of mineral spirits for the ultimate manufacturer, Safety-Kleen Systems, Inc. Plaintiffs asserted negligence and strict products liability claims. Specifically, plaintiffs alleged that benzene, a carcinogen found in mineral spirits, caused their leukemia. Benzene is only carcinogenic to humans at certain levels. The parties dispute the levels of benzene found in the mineral spirits supplied to Safety-Kleen. Calsol contended the benzene levels were present only in low concentrations. Plaintiffs alleged the benzene levels were capable of causing injury.
Reprinted courtesy of
Leah B. Mason, Haight Brown & Bonesteel LLP and
Michael J. Worth, Haight Brown & Bonesteel LLP
Ms. Mason may be contacted at lmason@hbblaw.com
Mr. Worth may be contacted at mworth@hbblaw.com
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Personal Guarantor Cannot Escape a Personal Guarantee By…
June 02, 2016 —
David Adelstein – Florida Construction Legal UpdatesIn a prior article, I discussed the point that a
personal guarantor cannot escape a contractual requirement of a
personal guarantee merely by executing the guarantee as a corporate officer.
The recent decision Frieri v. Capital Investment Services, Inc., 41 Fla. L. Weekly D1189a (Fla. 3d DCA 2016) illustrates this point. In this case, a company hired an individual to help grow that company’s business. The contract required the individual to invest $6 Million into a trust in consideration of the company’s president transferring substantial shares of the company into the trust. The objective was that the trust would own the controlling shares of the company. The money was transferred. However, the shares were never placed in the trust and the trust never received controlling interest in the company.
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David M. Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
City of Aspen v. Burlingame Ranch II Condominium Owners Association: Clarifying the Application of the Colorado Governmental Immunity Act
June 17, 2024 —
David McLain - Higgins, Hopkins, McLain & Roswell, LLCOn June 17, 2024, the Colorado Supreme Court delivered a significant opinion in the case of City of Aspen v. Burlingame Ranch II Condominium Owners Association (Case No. 22SC293). This decision provides crucial guidance on the interplay between the Colorado Governmental Immunity Act (“CGIA”) and the economic loss rule in the context of construction defect claims.
Background of the Case
The case arose from a construction defect dispute between the City of Aspen, which served as the developer and declarant for the affordable housing condominiums at issue, and the Burlingame Ranch II Condominium Owners Association, the HOA created by Aspen to manage the association after the period of declarant control. The Association alleged that Aspen breached various warranties related to the construction of affordable housing units, leading to structural deficiencies. Aspen argued that the CGIA barred these claims because they could lie in tort.
The Lower Court’s Decision
The district court initially agreed with Aspen, holding that the Association’s claims sounded in tort and were therefore barred by the CGIA. The court relied on the principle that governmental immunity protects public entities from liability for claims that ‘lie in tort or could lie in tort,’ as established by the CGIA.
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David McLain, Higgins, Hopkins, McLain & RoswellMr. McLain may be contacted at
mclain@hhmrlaw.com
The CA Supreme Court Grants Petition for Review of McMillin Albany LLC v. Super Ct. 2015 F069370 (Cal.App.5 Dist.) As to Whether the Right to Repair Act (SB800) is the Exclusive Remedy for All Defect Claims Arising Out of New Residential Construction
December 02, 2015 —
Richard H. Glucksman, Esq., Glenn T. Barger, Esq., Jon A. Turigliatto, Esq., & David A. Napper, Esq. – Chapman Glucksman Dean Roeb & Barger BulletinAs anticipated in a prior CGDRB 2015 Bulletin that discussed the Fifth Appellate District Court’s noteworthy opinion in McMillin Albany LLC v. Super Ct. 2015 F069370 (Cal.App.5 Dist), the California Supreme Court has granted the petition for review of the McMillin Albany decision. The Supreme Court will attempt to resolve the conflict of authority presented by the Fourth Appellate District Court’s opinion in Liberty Mut. Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98 and the Fifth Appellate District Court’s rejection of the Liberty Mutual holding in McMillin Albany.
In Liberty Mutual, the Fourth District Court of Appeal held that compliance with SB800’s pre-litigation procedures prior to initiating litigation is only required for defect claims [violations of SB 800’s building standards] that have not yet resulted in actual property damage. Where damage has occurred, a homeowner may initiate litigation under common law causes of action without first complying with the pre-litigation procedures set forth in SB 800.
Two years later, the Fifth District Court of Appeal, in McMillin Albany, held that the California Legislature intended that all construction defect claims arising out new residential construction are subject to the standards and requirements of the Right to Repair Act [SB800], including specifically, the requirement that the claimant provide the builder with notice and an opportunity to repair prior to filing a lawsuit. According to the Court, SB 800 is the exclusive remedy for all defect claims arising out of new residential construction sold on or after January 1, 2003.
The holdings in Liberty Mutual and McMillin Albany present a conflict of authority that the California Supreme Court has appropriately deemed worthy of review. The parties will now be permitted to file briefs on the merits and amicus briefs will certainly be submitted by the defense and plaintiff bars.
Our firm will be closely monitoring this case, the outcome of which will significantly impact pre-litigation construction defect claims going forward. We will provide updates as to further activities and the Supreme Court’s decision.
Reprinted courtesy of Chapman Glucksman Dean Roeb & Barger attorneys
Richard H. Glucksman,
Glenn T. Barger,
Jon A. Turigliatto and
David A. Napper
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com
Mr. Barger may be contacted at gbarger@cgdrblaw.com
Mr. Turigliatto may be contacted at jturigliatto@cgdrblaw.com
Mr. Napper may be contacted at dnapper@cgdrblaw.com
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