Construction Defect Case Not Over, Despite Summary Judgment
November 07, 2012 —
CDJ STAFFThe Supreme Court of Oregon has concluded in an en banc decision that a motion to reconsider a summary judgment is not a motion for a new trial. In coming to their conclusion the court overturned an earlier Oregon Supreme Court case, Carter v. U.S. National Bank. Although the decision does not bear on construction defects, the underlying case did. Due to the decision, these claims can now be evaluated in a trial.
The case, Association of Unit Owners of Timbercrest Condominiums v. Warren, came about after an apartment complex was converted into condominium units. The developers hired Big Al’s Construction for some of the remodeling work. The condominium association later sued the developer and the contractor over claims of construction defects. The defendants filed a motion for summary judgment, which the court granted.
But that wasn’t the end of things. The plaintiff soon filed a “motion to reconsider,” noting that the summary judgment seemed to be in conflict with both law and other recent rulings, and additionally, the grounds for the decision were not in the order. The judge then notified the parties that the court had “pulled the trigger too quickly” and had seven questions for the parties to answer.
The court dismissed all claims against the defendants. The defendants filed their responses, objecting that that “‘there is no such thing’ as a motion for reconsideration.” Further, while “the rules do allow for post-judgment review of pre-judgment rulings through a motion for a new trial,” the plaintiffs had not filed for a new trial. But did they need one? They did file an appeal.
The judge in the case admitted that there was no such thing as a motion to reconsider, and felt bad about prematurely signing the judgment. The case was sent to the Court of Appeals to determine if the motion to reconsider was a request for a new trial. The Court of Appeals concurred.
In reviewing the decision, the Oregon Supreme Court concluded that there were a maximum of three questions to address. Was the motion for reconsideration a motion for a new trial? If so, was the later notice of appeal premature? And if so, was the plaintiff required to file a new appeal? The court determined that the answer to the first question was no.
Prior decisions pointed to the conclusion “that a motion for reconsideration of a summary judgment amounts to a motion for a new trial,” but here the court concluded that “our prior cases erred,” and turned to the summary judgment rule for clarification. The court noted that “the rule contemplates that summary judgment and trial are separate and distinct events.” With this conclusion, the Oregon Supreme Court remanded the case to the Court of Appeals for further proceedings.
Read the court decisionRead the full story...Reprinted courtesy of
Quick Note: Third-Party Can Bring Common Law Bad Faith Claim
July 01, 2019 —
David Adelstein - Florida Construction Legal UpdatesA third-party claimant may bring a common law bad faith claim against a defendant’s liability insurer. Mccullough v. Royal Caribbean Cruises, 2019 WL 2076192, *2 (S.D.Fla. 2019). “A bad faith claim may be brought by a third party absent an assignment from the [defendant] insured.” Id. This can only be done in the third-party bad faith context with the argument that the insurer’s “bad faith” conduct resulted in a judgment against the defendant-insured in excess of the policy limits. However, in any third-party bad faith claim (and, really, bad faith claim in general), coverage must first be determined under the policy.
Read the court decisionRead the full story...Reprinted courtesy of
David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
'Taylor Swift Is an Economic Phenomenon': CE's Q1 2024 Economic Update and Forecast
April 29, 2024 —
Grace Calengor - Construction ExecutiveOn March 27, Construction Executive presented its "2024 Q1 Economic Update and Forecast," hosted by ABC Chief Economist Anirban Basu. If you've attended previous versions of this webinar, you're familiar with Basu’s pragmatic approach to the economics of the construction industry and his penchant for predicting recession. But this quarter, he opted for an almost-optimistic approach and hinted at walking back his thoughts on recession. Read the most quotable moments, new poll results and top takeaways from the presentation below.
POLL RESULTS: Q1 2024 vs. Q4 2023 Poll 1: Which of these is the leading challenge for your company today?
Supply chain and/or materials issues
Skills/worker shortage
Insufficient demand for construction services
Availability of financing for projects/project work
None of the above
December 2023 | March 2024 |
10% |
7% |
57% |
60% |
11% |
11% |
19% |
17% |
3% |
6% |
Reprinted courtesy of Grace Calengor, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Read the court decisionRead the full story...Reprinted courtesy of
Federal Courts Keep Chipping Away at the CDC Eviction Moratorium
March 22, 2021 —
Kriston Capps - BloombergIn a March 10 decision, a federal court in Cleveland blocked the national eviction moratorium, making it the second court to challenge the emergency measure implemented under President Donald Trump and extended by the Biden administration. The order clears the way for courts and landlords to resume evictions against tenants across much of Ohio. But the landlord groups who brought the suit believe that the decision could have a broader national application, setting the stage for an earlier-than-anticipated resumption of eviction activity before the ban expires on March 31.
The judge ruled that the Centers for Disease Control and Prevention, which introduced its ban on evictions in September, lacks the authority to enact such a policy. While the court stopped short of issuing an injunction against the CDC ban, its decision goes further than the Texas court that made a similar call late in February.
Read the court decisionRead the full story...Reprinted courtesy of
Kriston Capps, Bloomberg
Does the New Jersey Right-To-Repair Law Omit Too Many Construction Defects?
January 06, 2012 —
CDJ STAFFA post on the blog of Liberty Building Forensics Group find fault with the New Jersey Home Warranty and Builders’ Registration Act for not being stringent enough. The poster notes the coverage given under the bill. In the first year, builders are responsible to remedy faulty workmanship and materials and major structural defects. While other protections expire in the first or second year, there is a ten year coverage of major construction defects.
The blogger finds fault with the exclusion New Jersey law places on these claims, arguing that “due to the stringent definition of ‘major construction defects,” the warranty affords no coverage unless the house is practically collapsing.” The bill excludes leaks, cracks, and mold, and further limits claims if the homeowner has failed to inform the builder or insurer of defects, failure to maintain the home, and alterations made by the homeowner.
The intent of the New Jersey law is given as “requiring that newly constructed homes conform to certain construction and quality standards as well as to provide buyers of new homes with insurance-backed warranty protection in the event such standards are not met.” It’s argued in the piece that it instead serves to “strip homeowners of any meaningful means of recovery for discovered construction defects.”
Read the full story…
Read the court decisionRead the full story...Reprinted courtesy of
Construction Law Client Alert: California’s Right to Repair Act (SB 800) Takes Another Hit, Then Fights Back
February 25, 2014 —
Steven M. Cvitanovic and Whitney L. Stefko - Haight Brown & Bonesteel, LLPLast week, the California appellate courts decided two cases with ramifications under the Right to Repair Act. The first case, Burch, addresses whether the Right to Repair Act is the exclusive remedy for the homeowner. The second case, KB Home, addresses a situation where a homeowner or the homeowner's insurer fails to follow the procedures under the Right to Repair Act.
Last August, the Fourth Appellate District announced its decision in Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98 holding that SB 800 is not a homeowner’s exclusive remedy in situations where defects cause actual damage. Many lawyers believed that Liberty Mutual would be a one-off because of its facts – it was a subrogation case brought by an insurance company. So much for that.
Now the Second Appellate District is getting into the act.
In Burch v. The Superior Court of Los Angeles County, et al., the Second Appellate District overturned an order granting summary adjudication in favor of a developer, general contractor, and their respective owners, in a construction defect action brought by a residential homeowner. The trial court found that the Right to Repair Act precluded the homeowner’s negligence and implied warranty claims but the Court of Appeal reversed.
Reprinted courtesy of
Steven M. Cvitanovic, Haight Brown & Bonesteel, LLP and
Whitney L. Stefko, Haight Brown & Bonesteel, LLP
Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com, Ms. Stefko may be contacted at wstefko@hbblaw.com
Read the court decisionRead the full story...Reprinted courtesy of
Governor Signs AB5 Into Law — Reshaping California's Independent Contractor Classification Landscape
December 02, 2019 —
Eric C. Sohlgren & Matthew C. Lewis - Payne & Fears Legal AlertToday, Governor Gavin Newsom signed California Assembly Bill 5 (“AB5”), controversial legislation which will have a substantial impact on California employers when it goes into effect on January 1, 2020.
AB5 enacts into a statute last year’s California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018), and the Court’s three-part standard (the “ABC test”) for determining whether a worker may be classified as an employee or an independent contractor.
Under the ABC test established in Dynamex and now under AB5, a worker may be properly considered an independent contractor only if the hiring entity establishes all three of the following: (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.
Reprinted courtesy of
Eric C. Sohlgren, Payne & Fears and
Matthew C. Lewis, Payne & Fears
Mr. Sohlgren may be contacted at ecs@paynefears.com
Mr. Lewis may be contacted at mcl@paynefears.com
Read the court decisionRead the full story...Reprinted courtesy of
On the Ten Year Anniversary of the JOBS Act A Look-Back at the Development of Crowdfunding
May 02, 2022 —
J. Kyle Janecek & Jeffrey M. Dennis - Newmeyer DillionLast month marked the ten-year anniversary of the Jumpstart Our Business Startups (JOBS) Act, which was signed into law by President Obama on April 5, 2012. On May 16, 2016, Title III of the JOBS Act was enacted, as the final piece of the JOBS Act, which gave businesses better access to crowdfunding tactics due to the ability to raise funds based on equity. Today, the JOBS Act and the impact of equity crowdfunding more generally has grown among multiple industries, from entertainment and technology to real estate and construction, and has come a long way from the non-equity crowdfunding of Kickstarter and Indiegogo. So what have been the powers that businesses gained from Title III of the JOBS Act? What has been the impact of the last ten years? Where do businesses go from here to better utilize this source of funding?
WHAT ARE THE CROWDFUNDING POWERS GIVEN BY THE JOBS ACT?
The main difference and change that the JOBS Act had on the field of "crowdfunding" was that for the first time, unaccredited investors could obtain equity stakes in businesses through online solicitations. However, a business was still required to go through the proper approved channels, like accredited crowdfunding portals to solicit and receive funding. Prior to this, crowdfunding had gotten more of an impact and reputation from platforms like Kickstarter and Indiegogo, platforms that benefitted creative works or could act as a "pre-order" system with no guaranty of performance or quality of goods by the party seeking funds.
Reprinted courtesy of
J. Kyle Janecek, Newmeyer Dillion and
Jeffrey M. Dennis, Newmeyer Dillion
Mr. Janecek may be contacted at kyle.janecek@ndlf.com
Mr. Dennis may be contacted at jeff.dennis@ndlf.com
Read the court decisionRead the full story...Reprinted courtesy of