Supreme Court of New Jersey Reviews Statutes of Limitation and the Discovery Rule in Construction Defect Cases
July 18, 2018 —
David Suggs – Bert L. Howe & Associates, Inc.Robert Neff Jr. of Wilson Elser analyzed the recent case, Palisades at Fort Lee Condo. Ass’n v. 100 Old Palisade, LLC, 2017 N.J. Lexis 845, 169 A.3d 473 (Supreme Court of New Jersey, September 14, 2017), and states that this ruling “gives defendants the ability to defend against the assertion that the statute of limitations was tolled until the most recent owner (and plaintiff) discovered the cause of action.”
Neff concludes that a statute of limitations test needs to be conducted at the beginning of each case: “In Palisades, the motions to dismiss based on the statute of limitations were filed at the conclusion of all discovery. While an initial analysis might yield the conclusion that certain discovery will be needed to ascertain the appropriate accrual date (or dates, in the case of multiple defendants), counsel will then know what discovery to seek during the discovery period.”
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The Final Nail: Ongoing Repairs Do Not Toll the Statute of Repose
November 07, 2022 —
Kyle Rice - The Subrogation StrategistIn Venema v. Moser Builders, Inc., 2022 PA Super. 171, 2022 Pa. Super. LEXIS 414, the Superior Court of Pennsylvania (Superior Court) upheld an award of judgment on the pleadings from the Court of Common Pleas of Chester County (Trial Court). The Superior Court found that Pennsylvania’s 12-year Statute of Repose for improvements to real property (Statute of Repose) began to run upon the issuance of the certificate of occupancy following original construction of the home in 2003—not from the completion of repairs to the home that continued through 2008.
The underlying cause of action involved a home constructed by Moser Builders, Inc. (Moser) in 2003. The certificate of occupancy for the home was issued on August 13, 2003. Matthew Venema and Liza Squires (collectively, Venema) purchased the property from the original owners in 2004.
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Kyle Rice, White and WilliamsMr. Rice may be contacted at
ricek@whiteandwilliams.com
Utah Becomes First State to Enact the Uniform Commercial Real Estate Receivership Act
March 29, 2017 —
David Leta - Snell & Wilmer Real Estate Litigation BlogOn March 25, Utah became the first state to enact the Uniform Commercial Real Estate Receivership Act (“UCRERA”) which was drafted by the National Conference of Commissioners on Uniform State Laws (the “Conference”) and adopted by the Conference at its annual meeting in July 2015. The Utah Uniform Commercial Real Estate Receivership Act, (the “Utah Act”) mirrors UCRERA and applies to all commercial real property receiverships that are filed in the Utah District Courts on and after May 9, 2017.
The Utah Act provides both substantive and procedural guidance in an area of law that historically has been marked by inconsistency and uncertainty. This new law not only will provide judges, lenders and other receivership constituents with much needed instruction about their respective rights and responsibilities in commercial receivership proceedings, but it also is likely to reduce the cost and increase the predictability of these receiverships in Utah.
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David Leta, Snell & WilmerMr. Leta may be contacted at
dleta@swlaw.com
Los Angeles Tower Halted Over Earthquake and other Concerns
December 04, 2013 —
CDJ STAFFPlans to build the Millennium Hollywood project have been halted over lawsuits alleging that the Hollywood fault line runs under the site and would render it unsafe. Additional claims are that the buildings would block views of the Hollywood sign. But Robert Silverstein alleges in his suit that the buildings would endanger lives.
The Millennium claims that the project would create about 3,000 construction jobs, and that after the building were complete, they would create 1,000 jobs.
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Congratulations 2024 DE, MA, MD, NJ, NY, and PA Super Lawyers and Rising Stars
June 17, 2024 —
White and Williams LLPWhite and Williams congratulates the fifteen attorneys nominated as Super Lawyers and ten attorneys named Rising Stars across our Delaware, Massachusetts, Maryland, New Jersey, New York and Philadelphia offices. Lawyers are selected through a process that takes into consideration peer recognition and professional achievement. The lawyers named to this year’s list represent a multitude of practices throughout the firm.
Super Lawyers 2024
| Attorney |
Super Lawyers Denoted Practice Area (s)
| |
|---|
| David B. Chaffin |
Business Litigation |
| Robert G. Devine |
Personal Injury, Employment Litigation, Products Liability |
| David D. Gilliss |
Surety, Construction Litigation, Administrative Law |
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White and Williams LLP
Construction Defect Suit Can Continue Against Plumber
June 28, 2013 —
CDJ STAFFThe Kansas Court of Appeals has reversed a district court ruling that a homeowner’s suit against a plumber was barred under the economic loss doctrine. However, subsequently the Kansas Supreme Court “refused to extend the economic loss doctrine to homeowner claims against construction contractors.” In light of this, the appeals court sent the case back to the lower court.
The case, Coker v. Siler, was brought by Gregory Coker, who had bought a home from J.M.C. Construction. JMC purchased an unfinished house from Michael D. Siler in August 2006. As part of the completion process, John M. Chaney, the president of JMC, installed the water line into the residence. Mr. Coker bought the home in September 2007.
Starting in April 2008, Mr. Coker noticed that his water bills had increased. Mr. Coker could find “no evidence of a leak above the ground,” so he contacted JMC Construction. Mr. Chaney had R.D. Johnson Excavation dig up the water line, after which a gap was discovered that had been allowing water to flow under the foundation. In addition to the higher water bills, an engineer determined that the water “resulted in cracks in the wall and uneven doors.”
Mr. Coker sued, Siler, J.M.C. and Chaney for negligence, breach of implied warranty, strict liability, and breach of express warranty. J.M.C. and Chaney requested a summary judgment. The court dismissed Mr. Coker’s claims of negligence, strict liability, and breach of implied warranty on the basis of the economic loss doctrine, rejecting a petition from Mr. Coker to reconsider. The court, however, allowed Mr. Cocker to proceed with his claim of express warranty. In December, 2011, Mr. Coker accepted an offer from J.M.C. of $40,000.
Mr. Coker then appealed the summary judgment, making the claim that while the court’s decision was based on Prendiville v. Contemporary Homes, Inc., this has now been overruled by David v. Hett. In this case, “the court ultimately found the rationale supporting the economic loss doctrine failed to justify a departure from a long time of cases in Kansas that establish a homeowner’s right to assert claims against residential contractors.” The appeals court concluded that “although the district court properly relied on the law as it existed at the time of its ruling, the intervening change in the law necessarily renders the conclusion reached by the district court erroneous as a matter of law.”
In sending this case back to the district court, the appeals court noted that the lower court will need to determine if the “defendant accused of negligence did not have a duty to act in a certain manner towards the plaintiff,” in which case “summary judgment is proper. Mr. Coker claims that Mr. Chaney did indeed have this duty.
Further, Mr. Coker claimed that Mr. Chaney had a duty arising out of implied warranty. The appeals court questioned whether the district court properly applied the economic loss doctrine to this claim, because despite being president of the construction company, Mr. Chaney “in his individual capacity as a plumber performing work for Coker, was not a party to the J.M.C. contract.” The court found that “Coker’s claim that Chaney breached an implied duty within such a contract fails as a matter of law.”
However, the court did uphold Cocker’s claim of a contractor liability for injury to a third party, noting that “Chaney owed Coker a legal duty independent of Coker’s contact with J.M.C.” The appeals court left it to the district court to determine if the defect that caused the damage was present when the house left J.M.C.’s possession.
The case was reversed and remanded “with directions to reinstate Coker’s claim of negligence against Chaney in his individual capacity as a plumber.”
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Illinois Legislature Passes Bill Allowing Punitive Damages In Most Wrongful Death Actions
June 05, 2023 —
John Hackett & Jarred Reed - Lewis BrisboisMadison County, Ill. (May 19, 2023) – On May 18, 2023, the Illinois legislature passed House Bill 0219, amending the Illinois Wrongful Death Act to allow for the recovery of punitive damages in wrongful death actions. The bill will soon be sent to the Governor’s desk for signature. If signed into law, the statutory change will allow heirs of decedents to recover punitive damages in wrongful death actions.
The proposed amendment to the Illinois Wrongful Death Act is underlined below:
Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages including punitive damages when applicable, in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, including punitive damages when applicable, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. Nothing in this Section affects the applicability of Section 2-1115 of the Code of Civil Procedure or Section 2-102 or 2-213 of the Local Governmental and Governmental Employees Tort Immunity Act. Punitive damages are not available in action for healing art malpractice or legal practice or in an action against the State or unit of local government or an employee of a unit of local government in his or her official capacity. The changes made to this Section by this amendatory Act of the 103rd general Assembly apply to actions filed on or after the effective date of this amendatory Act.
Reprinted courtesy of
John Hackett, Lewis Brisbois and
Jarred Reed, Lewis Brisbois
Mr. Hackett may be contacted at John.Hackett@lewisbrisbois.com
Mr. Reed may be contacted at Jarred.Reed@lewisbrisbois.com
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Court Provides Guidance on ‘Pay-When-Paid’ Provisions in Construction Subcontracts
July 13, 2020 —
Ted R. Gropman & Cindy J. Lee - ConsensusDocsOn April 17, the California Court of Appeal decided Crosno Construction, Inc. v. Travelers Casualty & Surety Company of America,1 effectively narrowing the scope of enforceable “pay-when-paid” provisions in construction subcontracts to the extent the subcontractor seeks recovery against a general contractor’s payment bond surety. Although the Crosno case involved a public works project, the rationale and holding should apply with equal force to private works projects. Basing the bulk of its decision on the Wm. R. Clarke Corp. v. Safeco Insurance Co.2 case, the court found that an open-ended “pay-when-paid” provision in a subcontract is not enforceable against a subcontractor that seeks to recover on a public works payment bond claim. This article discusses the Crosno decision and the implications for contractors on both sides of the contract moving forward.
Brief Case Summary
In Crosno, general contractor Clark Bros., Inc. contracted with the North Edwards Water District (the District) to build an arsenic removal water treatment plant. Clark hired steel storage tank subcontractor Crosno Construction, Inc. to build and coat two steel reservoir tanks. Clark and Crosno’s subcontract included a “pay-when-paid” provision, which stated that Clark would pay Crosno within a “reasonable time” of receiving payments from the owner, but “in no event less than the time Contractor and Subcontractor require to pursue to conclusion their legal remedies against Owner or other responsible party to obtain payment.” After Crosno completed its work, a dispute arose between Clark and the District, and the District withheld payment from Clark (including the monies earmarked for Clark’s subcontractors). Clark sued the District for payment, and Crosno filed its own action against Travelers Casualty and Surety Company of America, the surety on Clark’s statutory public works payment bond, for recovery of the unpaid subcontract balance. Travelers rejected Crosno’s bond claim as premature, invoking the “pay-when-paid” subcontract language and pointing to Clark’s pending payment action against the District. The issue on appeal was whether the “pay-when-paid” provision in the subcontract blocked Crosno from recovering under the payment bond from Travelers while Clark’s lawsuit against the District was still pending.
Reprinted courtesy of
Ted R. Gropman, Pepper Hamilton LLP and
Cindy J. Lee, Pepper Hamilton LLP
Mr. Gropman may be contacted at ted.gropman@troutman.com
Ms. Lee may be contacted at cindy.lee@troutman.com
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