Construction Defects in Home a Breach of Contract
September 09, 2011 —
CDJ STAFFThe Supreme Court of North Dakota has ruled in Leno v. K & L Homes, affirming the verdict of the lower court. K & L Homes argued that district court had erred in several ways, including by refusing to instruct the jury on comparative fault, denying a request for inspection, and not allowing a defendant to testify on his observations during jury viewing.
The Lenos purchased a home constructed by K & L Homes, after which they alleged they found cracks, unevenness, and shifting, which they attributed to improper construction. They claimed negligence on the part of K & L Homes. K & L Homes responded that the Lenos were responsible for damage to the home. The Lenos dropped their negligence claim, arguing breach of contract and implied warranties.
Before the trial, after the discovery period had passed, K & L Homes requested to inspect the home. This was rejected by the court. Kelly Moldenhauer, the owner of K & L Homes sought to testify about his observations during the jury’s viewing of the house. The court denied this too. The jury found that K & L was in breach of contract and awarded damages to the Lenos.
The North Dakota Supreme Court noted that K & L Homes gave “warranties that the home had been built according to local building codes and laws, and that the house was fit for its particular purpose as a residence.” The court found that a defective home breached this warranty. Further, the home violated an implied warranty of fitness.
The district court had denied K & L’s request to inspect the home, as the discovery period had ended and it would not give the Lenos time to do further discovery of their own. At the time of the request, there was only twenty-two days before the trial. The Supreme Court ruled that this was not an abuse of discretion of the part of the district court.
The Lenos had requested that Moldenhauer’s testimony not be permitted, as it would “have the same effect as if the court had granted K & L Homes’ pretrial request for inspection.” K & L Homes agreed to this in court, replying, “okay.”
The decision affirms the judgment of the district court and the damages awarded to the Lenos by the jury.
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Washington State Supreme Court Issues Landmark Decision on Spearin Doctrine
September 29, 2021 —
Cameron Sheldon - Ahlers Cressman & Sleight PLLCThe Washington State Supreme Court’s recent decision in Lake Hills Invs., LLC v. Rushforth Constr. Co. No. 99119-7, slip op. at 1 (Wash. Sept. 2, 2021) marks the first time in over 50 years that it has ruled on the Spearin doctrine. The Court’s opinion clarified the contractor’s burden when asserting a Spearin defense and affirmed the jury’s verdict in favor of contractor AP Rushforth Construction Company (AP). The decision is a major win for Ahlers Cressman & Sleight PLLC attorneys Scott Sleight, Brett Hill, and Nick Korst, who represented AP throughout its long-running dispute with Lake Hills Investments, LLC (LH), including the two-month jury trial and the appeal. Leonard Feldman of Peterson | Wampold | Rosato | Feldman | Luna and Stephanie Messplay of Van Siclen Stocks & Firkins also represented AP on appeal.
At trial, the owner—Lake Hills Investments, LLC (LH)—asserted it was entitled to $3 million in liquidated damages and $12.3 million for defects it alleged were caused by AP’s deficient workmanship. AP denied responsibility for the delays and most of the defects and requested payment of $5 million. Regarding LH’s defect claims, AP argued as an affirmative defense that the defects were caused by deficiencies in the plans and specifications provided by LH. This affirmative defense was rooted in the Spearin doctrine, which states that when the contractor follows plans and specifications provided by the owner, the contractor is not responsible for defects caused by the plans and specifications.
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Cameron Sheldon, Ahlers Cressman & Sleight PLLCMs. Sheldon may be contacted at
cameron.sheldon@acslawyers.com
Fed Inflation Goal Is Elusive as U.S. Rents Stabilize: Economy
March 12, 2014 —
Michelle Jamrisko and Ilan Kolet - BloombergFederal Reserve efforts to nurture a more robust rate of inflation this year are likely to fall short. The reason: the biggest gains in rents are probably over.
The costs to lease residential real estate, the second-biggest component of the price measure tracked by U.S. central bankers, helped put a floor under inflation over the past two years as most other components decelerated. Now, with builders cranking out a record number of multifamily buildings and the job market still far from tight, the outlook for rents is the bleakest it’s been in four years.
“Because the economy is still not in the strongest position and certainly the labor market is not in the strongest position, landlords really can’t extract much more in the way of rent growth,” said Ryan Severino, a senior economist at real-estate data provider Reis Inc. in New York. Also, rents are already high, which makes more increases difficult, he said.
Ms. Jamrisko may be contacted at mjamrisko@bloomberg.net; Mr. Kolet may be contacted at ikolet@bloomberg.net
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Michelle Jamrisko and Ilan Kolet, Bloomberg
South African Building Industry in Line for More State Support
November 08, 2021 —
Prinesha Naidoo - BloombergSouth Africa’s government is planning more measures to bolster its ailing building industry after banning the use of imported cement on state construction projects.
“Government is undertaking research across a range of construction-related products where there appears to be significant potential for localization,” Stephen Hanival, chief economist at the Department of Trade, Industry and Competition, said in an emailed response to questions. “Further announcements will be made in due course.”
The country’s preferential procurement policy framework enables the department to designate sectors for localization in line with national development and industrial policy goals. While the government has pursued localization since 2014, it has become more strategic since the advent of the pandemic with business, government and labor groups agreeing on an initial list of 42 products and sub-sectors that should be prioritized, Hanival said.
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Prinesha Naidoo, Bloomberg
A Duty to Design and Maintain Reasonably Safe Roadways Extends to All Persons. (WA)
February 25, 2014 —
Natasha Khachatourians – Scheer & Zehnder LLP Liability NewsletterCase: Lowman v. Wilbur, et al., 178 Wn.2d 165, 309 P.3d 3.87 (2013).
Issue: If a passenger’s injuries are in fact caused by the placement of a utility pole too close to a roadway, can the injuries be deemed too remote for purposes of legal causation? NO.
Facts: Plaintiff was a passenger in a vehicle that lost control and collided with a utility pole that was 4.47 feet from the edge of the roadway. The vehicle’s driver was under the influence of alcohol. Plaintiff sued the driver as well as the utility company and Skagit County for negligence. The trial court granted the utility company and Skagit County’s summary judgment motion, finding that the negligent placement of the utility pole was not a legal cause of plaintiff’s injuries.
The issue before the Supreme Court was whether a negligently placed utility pole could be the legal cause of a resulting injury.
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Natasha Khachatourians, Scheer & Zehnder LLP Ms. Khachatourians may be contacted at
natashak@scheerlaw.com
2019 Legislative Session
June 03, 2019 —
Steve Heisdorffer – Colorado Construction LitigationTwo bills under consideration as the end of the session nears contain significant changes to Colorado’s Consumer Protection Act (“CCPA”). The bills broaden remedies, make more conduct a breach of the CCPA, and include purely private transactions in the type of conduct that falls within the scope of the CCPA. The bills are House Bill 19-1289 (“House Bill”) and Senate Bill 19-237 (“Senate Bill”). As of April 29, 2019, the House Bill has passed the House. The Senate Bill has not progressed past introduction. It is unclear if both houses of the legislature will have an opportunity to vote on either or both bills before the session ends.
The House Bill makes a person liable for CCPA violations based on conduct engaged in “recklessly,” not just knowing conduct. No definition of the term “recklessly” is provided in the House Bill, but Colorado’s attorney general testified “recklessly” “means a company or person acted with reckless disregard for the truth.” (Page 2). No explanation was given of what the word “reckless” in the definition of “recklessly” meant in this context.
Another provision of the House Bill adds a “catch all” prohibition that labels as a deceptive trade practice knowingly or recklessly engaging in any unfair, unconscionable, deceptive, deliberately misleading, false or fraudulent act or practice. There is no indication how a person could “recklessly” engage in “deliberately misleading” acts or practices.
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Steve Heisdorffer, Higgins, Hopkins, McLain & RoswellMr. Heisdorffer may be contacted at
heisdorffer@hhmrlaw.com
When “Substantially Similar” Means “Fundamentally Identical”: Delaware Court Enforces Related Claim Provision to Deny D&O Coverage for Securities Class Action
August 10, 2021 —
Geoffrey B. Fehling, Lawrence J. Bracken II & Lorelie S. Masters - Hunton Andrews KurthA company faces two class action lawsuits—filed by different plaintiffs, complaining of different allegedly wrongful conduct, asserting different causes of action subject to different burdens of proof, and seeking different relief based on different time periods for the alleged harm. Those facts suggest the suits are not “fundamentally identical,” but that is what a Delaware Superior Court recently concluded in barring coverage for a policyholder seeking to recover for a suit the court deemed “related” to an earlier lawsuit first made outside the policy’s coverage period. First Solar Inc. v. National Union Fire Ins. Co. of Pittsburgh, Pa., No. N20C-10-156 MMJ CCLD (Del. Super. Ct. June 23, 2021). The decision, which is not on all fours with some of the authority upon which it relies, underscores the inherent unpredictability of “related” claim disputes and need for careful analysis of the policy language against the factual and legal bases of the underlying claims.
Underlying Shareholder Class Actions and D&O Claims
Shareholders of solar panel manufacturer First Solar sued the company and its directors and officers in a class action lawsuit (the “Smilovits Action”) for the class period April 2008 to February 2012. The Smilovits Action asserted federal securities violations arising from First Solar’s alleged misrepresentations about the company’s business strategies, product design, financial strength, and ability to offer solar electricity at comparable rates to conventional energy producers (i.e., achieving “grid parity”), artificially inflated stock price, insider trading, manipulation of solar power metrics, and violations of GAAP accounting standards. First Solar submitted a claim to its D&O insurer, National Union, which provided coverage for the Smilovits Action and exhausted the policy.
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Geoffrey B. Fehling, Hunton Andrews Kurth,
Lawrence J. Bracken II, Hunton Andrews Kurth and
Lorelie S. Masters, Hunton Andrews Kurth
Mr. Fehling may be contacted at gfehling@HuntonAK.com
Mr. Bracken may be contacted at lbracken@HuntonAK.com
Ms. Masters may be contacted at lmasters@HuntonAK.com
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Topic 606: A Retrospective Review of Revenue from Contracts with Customers
October 12, 2020 —
Christopher Sisk & Robert Mercado - Construction ExecutiveThe anticipation has been building regarding implementation of the new revenue recognition standard, known as Topic 606, by private companies. Public companies have reported under Topic 606 since the beginning of 2019. For private companies, the time is now. As of January 2020, private companies became subject to Topic 606 for all entities with a year-end of Dec. 31, 2019, or subsequent. However, with the COVID-19 pandemic affecting businesses across the board, this year any company with a year-end financial statement not yet issued can defer implementation of Topic 606 until the contractors’ next year end that falls after Dec. 15, 2020.
What have we learned about the impact of Topic 606, if any, on construction contractors’ financial statements? The most significant impact relates to the presentation of contract assets and contract liabilities, and the disclosures associated with Topic 606. The recording of what is known as “the cost to fulfill a contract” is another area that has been affected.
PRESENTATION OF CONTRACT ASSET AND CONTRACT LIABILITY
A contract asset is defined in Topic 606 as an entity’s right to consideration in exchange for goods or services the entity has transferred to a customer, conditional on something other than the passage of time.
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Christopher Sisk & Robert Mercado, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Mr. Sisk may be contacted at Christopher.sisk@marcumllp.com
Mr. Mercado may be contacted at Robert.mercado@marcumllp.com
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