Homeowners Must Comply with Arbitration over Construction Defects
January 06, 2012 —
CDJ STAFFThe California Court of Appeals has upheld a decision by the Superior Court of Kern County that homeowners must comply with arbitration procedures in their construction defect claim. The California Court of Appeals ruled on December 14 in the case of Baeza v. Superior Court of Kern County, denying the plaintiff’s petition that the trial court vacate its order.
The plaintiffs in the case are homeowners in various developments built by Castle & Cook. The homes were sold with a contract that provided for “nonadversarial prelitigation procedures, including mediation, and judicial reference.” The homeowners made defect claims and argued that Castle & Cooke failed to comply with statutory disclosure requirements and that some of the contracts violate related statutes.
The appeals court found that there was no ground for appeal of the lower court’s order to continue with prelitigation procedures. The court noted that the plaintiffs could not seek a review of the mediation until a judgment was issued, but that then the issue would be moot. The court felt that there were issues presented that needed clarification, and so they reviewed this case. This was cleared for publication.
The court considered the intent of the legislature in passing the Right to Repair Act, noting that “under the statutory scheme, the builder has the option of contracting for an alternative nonadversarial prelitigation procedure,” as established in Chapter 4. The court noted that Chapter 4 “contains no specifics regarding what provisions the alternative nonadversarial contractual provisions may or must include.”
The plaintiffs contended that the builder was in violation of the standards set out in Section 912, however the court responded that these sections set out one set of procedures, but they concluded that “if the Legislature had intended the section 912 disclosure provisions…it could have made the requirements applicable to all builders by locating them in a section outside Chapter 4.”
Read the court’s decision…
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The Impact of the Russia-Ukraine Conflict on the Insurance Industry, Part One: Coverage, Exposure, and Losses
August 22, 2022 —
Michael Kopit - Lewis Brisbois(August 10, 2022) - The Russia-Ukraine conflict has far-reaching implications for the insurance industry and for insurers and insureds alike. Many corporate policy holders around the world have withdrawn or scaled back operations with Russia and/or Russian-based corporations. In doing so, the corporate policy holders left behind property, assets, and inventory in Russia and/or suffered losses in revenue. Corporate policy holders are looking to their insurers to offset the losses. It is estimated that the insurance and reinsurance markets could face losses at nearly $20 billion. S&P Global predicts that losses could reach $35 billion. Additionally, the conflict in Ukraine creates uncertainty for insurers on how to navigate the influx of claims, especially from the cybersecurity sector.
A key issue with the rise in claims is coverage. The general rule is that coverage under a policy for any loss must be evaluated by considering the policy language, the law applicable to the governing jurisdiction, and the facts surrounding the loss. Many policies contain a “war exclusion” clause, which can exclude property losses resulting from acts of war or governmental instability. However, corporate policy holders may have Political Risk Insurance, which can provide coverage for losses for items such as damaged property, seized property, and lost assets at a time of political turmoil or war. Even if a policy has Political Risk Insurance, it does not guarantee payout. Careful analysis of the policy language and facts surrounding the loss must still take place. For example, in the event of property claims, an insurer must still determine whether the loss is related to the conflict and/or whether the subject property was voluntarily abandoned or seized.
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Michael Kopit, Lewis BrisboisMr. Kopit may be contacted at
Michael.Kopit@lewisbrisbois.com
New York's De Blasio Unveils $41 Billion Plan for Affordable Housing
May 07, 2014 —
Henry Goldman – BloombergNew York Mayor Bill de Blasio presented plans to build and preserve 200,000 units of affordable housing in the next decade by increasing rent protections for the poor and requiring developers to include below-market apartments in newly zoned areas.
The $41.1 billion program, paid for with city, state, federal and private funds, would focus 60 percent on preservation and 40 percent on new construction. About $8.2 billion of the cost would be borne by the city, according to a 116-page report detailing the plan, which de Blasio called the “largest, fastest” affordable-housing program ever attempted at the local level.
De Blasio, 52, a self-described progressive and the city’s first Democratic mayor in 20 years, took office in January after describing income inequality as the most serious issue facing the most populous U.S. city. He turned his attention to housing today after pushing the state legislature in March to grant the city $300 million to institute universal all-day pre-kindergarten.
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Henry Goldman, BloombergMr. Goldman may be contacted at
hgoldman@bloomberg.net
Neighbor Allowed to Remove Tree Roots on Her Property That Supported Adjoining Landowners’ Two Large Trees With Legal Immunity
July 14, 2016 —
Paul R. Cressman, Jr. – Ahlers & Cressman PLLC BlogA recent Washington Court of Appeals opinion addressed the rights of a neighbor to destroy roots and branches on her property that belonged to trees located on an adjoining landowner’s property.[1]
Mustoe had two large Douglas-fir trees located entirely on her property, about two and one-half feet from the property line with her neighbor Ma. Ma caused a ditch to be dug on her property along the border with Mustoe’s lot. The ditch was 18-20 inches deep. In the process, Ma exposed and removed the trees’ roots, leaving them to extend only three-four feet from the trunks of the trees. This resulted in a loss of nearly half of the trees’ roots, all from the south side, exposing them to southerly winds with no support. The damaged trees posed a high risk of falling on Mustoe’s home. The landscape value of the trees was estimated to be $16,418. The cost of their removal was estimated to be $3,913.
Mustoe filed suit against Ma asserting that Ma had negligently, recklessly, and intentionally excavated and damaged her trees, along with other property, and also sought emotional distress damages. The trial court dismissed Mustoe’s suit. The Court of Appeals affirmed.
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Paul R. Cressman, Jr., Ahlers & Cressman PLLC Mr. Cressman may be contacted at
pcressman@ac-lawyers.com
Construction Defect Attorneys Call for Better Funding of Court System
June 28, 2013 —
CDJ STAFFThe construction defect law firm Anderson Shoech has a solution to some of the problems with the California courts. They note that cases often work their way through the system more slowly than they did in the past, due to “unprecedented cuts of over $1 billion from the State Court budget.” Prior to the cuts, cases were resolved “within six months to a year.” Under the current conditions, those involved in a lawsuit “would be lucky if their case was heard within 18 months of filing and could expect at least two full years to pass.”
They recommend that California return to appropriately funding the court system. Failure to do so could cause business to go to states “with a functioning and predictable court system.”
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How Long Does a Civil Lawsuit Take?
August 14, 2018 —
Bremer Whyte Brown & O’MearaHow long does a civil lawsuit take?
One common question among parties to a civil lawsuit, whether a plaintiff or defendant, is how long will it take to reach a resolution? The answer is tricky. The time it takes to resolve a civil lawsuit is highly dependent on various factors including the complexity of the matter and the parties’ willingness to settle.
At the outset, parties to a civil case may resolve the matter at any time by mutual agreement (i.e., settlement). In that case, the parties draft a Stipulation and Order outlining the terms of the agreed settlement and submit the document to the judge for approval. Absent of any glaring inequity in the terms of the Stipulation, the judge will typically approve of the parties’ settlement, and the matter will be deemed resolved (either in whole or in part, depending on the case, the terms of the settlement and indemnity agreement).
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Bremer Whyte Brown & O’Meara
Class Action Certification by Association for “Matters of Common Interest”
August 24, 2020 —
David Adelstein - Florida Construction Legal UpdatesAssociations have authority to pursue as a class, on behalf of all of their respective members, lawsuits “concerning members of common interest to the members.” Fla. R. Civ. P. 1.221. This includes, but is not limited to, the common property or the areas in which the association is responsible. But, what about matters or elements for which the association is not responsible or does not own? For example, issues or damages relative to a specific unit or owner that are prevalent throughout?
The Third District Court of Appeal addressed this question in Allied Tube and Conduit Corp. v. Latitude on the River Condominium Association, Inc., 45 Fla. L. Weekly D1518a (Fla. 3d DCA 2020) when in affirmed a class certification by a condominium association relating to the removal and replacement of the condominium building’s defective fire sprinkler system. In affirming the class certification by the condominium association, the Third District maintained:
Rule 1.221 expressly authorizes condominium associations to “institute, maintain, settle, or appeal actions or hearings in its name on behalf of all association members concerning matters of common interest to the members.” “[A]s to controversies affecting the matters of common interest . . ., the condominium association, without more, should be construed to represent the class composed of its members as a matter of law.” “[T]he common interest provision of the rule has been interpreted to permit a class action by the association for a construction defect located physically within a unit, rather than in the common elements, if the defect is prevalent throughout the building.” We, therefore, cannot say the trial court abused its discretion in finding that damages resulting from the replacement of the fire-sprinkler system throughout the building were a matter of common interest for purposes of certification at this stage of the litigation.
Allied Tube and Conduit Corp, supra (internal citations omitted).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
General Contractor Gets Fired [Upon] for Subcontractor’s Failure to Hire Apprentices
September 23, 2024 —
Garret Murai - California Construction Law BlogAs most public works contractors know, Labor Code section 1777.5 requires the hiring of apprentices on public works projects and, under Labor Code section 1777.7, violations are subject to civil penalties of up $100/day and up to $300/day days for repeated violations within a three-year period.
In
Lusardi Construction Co. v. Dept. of Industrial Relations, 102 Cal.App.5th (2024), a prime contractor learned the hard way that not only could it be penalized for its failure to hire apprentices but that it could also be liable for its subcontractor’s failure to hire apprentices. Forewarned is to be forearmed.
The Lusardi Construction Case
In 2014, general contractor Lusardi Construction Company hired subcontractor Pro Works Contracting to perform iron reinforcing work on a public works project owned by the San Marcos Unified School District.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
