No Repeal Process for Rejected Superstorm Sandy Grant Applications
February 12, 2014 —
Beverley BevenFlorez-CDJ STAFFEven though it’s been revealed that “faulty data” was used to reject many New Jersey recovery grants for victims of Superstorm Sandy, the state has announced that it’s too late to appeal, according to The Wall Street Journal.
“The applicants were informed by letter that they weren't eligible,” state officials told The Wall Street Journal, “and it should have been clear that they needed to appeal last year, so the application process won't be reopened.”
The majority of the rejected applicants that did appeal within the open period were found to be eligible for the grant: “Nearly 80% of people who appealed their rejections ended up winning their cases, according to data released by the Fair Share Housing Center, a public-interest law firm critical of the Christie administration. And of the 8,007 applicants rejected from both programs, 5,583 didn't appeal, or 70%, according to Fair Share Housing Center's analysis.”
U.S. Representative Bill Pascrell called for “an independent monitor” to be “appointed to oversee the state’s storm spending ‘to ensure there isn’t further mismanagement.’”
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Subsequent Owners of Homes Again Have Right to Sue Builders for Construction Defects
October 07, 2016 —
Mark L. Parisi – White and Williams LLPOwners of homes with damage from construction defects have long had the standing to sue the builders of their homes using the legal theories of 1) breach of contract, 2) breach of implied warranty, and 3) breach of Pennsylvania’s consumer fraud statute, the Unfair Trade Practices and Consumer Protection Law (UTPCPL).
Before the 2014 decision of the Pennsylvania Supreme Court in Conway v. Cutler, even owners who were not the original purchasers of their homes, so-called subsequent owners, had a right to sue the builder of their homes using implied warranty as the legal theory. But the Supreme Court in Conway said in 2014 that even though an implied warranty theory is not based on a written contract, it is a quasi contract theory and because subsequent owners never had a contractual relationship with the builder of their home, the implied warranty cause of action was not available. Subsequent purchasers were thus left without a remedy for damage from defective construction in their homes and builders had a second safe harbor from claims regarding homes they built. The first safe harbor is Pennsylvania’s Statute of Repose. If the home was completed more than 12 years before a lawsuit was filed, the Statute of Repose bars the claim. But after Conway, if the home was sold, this also cut off a builder’s potential liability for construction defects in the home.
ENTER THE UTPCPL
On July 26, 2016 the Pennsylvania Superior Court in the case of Adams v. Hellings Builders issued a non-published (and therefore non-precedential) decision in a stucco construction defect case that held that subsequent purchasers could sue their home’s builder under the UTPCPL because the Act had no requirement that the purchaser of a product, or home, be the original purchaser. The decision cites several other appellate cases not involving construction defect claims that held that the UTPCPL was a valid legal theory for claims regarding products purchased second hand by the plaintiffs in those other cases. The court in Adams held that there was no reason that a suit regarding construction defects in a home should be treated any differently.
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Mark L. Parisi, White and Williams LLPMr. Parisi may be contacted at
parisim@whiteandwilliams.com
Business Risk Exclusions Bar Coverage for Construction Defect Claims
June 28, 2013 —
Tred EyerlyThe federal district court assumed there was "property damage" caused by an "occurrence," but found the business risk exclusions barred coverage for construction defect claims. Hubbell v. Carney Bros. Constr., 2013 U.S. Dist. LEXIS 68331 (D. Colo. May 13, 2013).
The plaintiffs entered a construction contract with the insured general contractor to build a home. After the project was one-third completed, plaintiffs terminated the contract. Experts hired by plaintiffs found a failure to properly site the residence, as the house was constructed 48 feet from the intended location; violations of county height restrictions; failure to follow building plans, which were themselves deficient; and an improperly poured foundation. The experts estimated that the costs of repairing the property to be between $1.3 and $1.5 million, and that the cost of demolishing the structure and rebuilding it would be between $1.1 and $1.3 million.
After plaintiff filed suit, a stipulated judgment of $1.952 million was entered.
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Tred EyerlyTred Eyerly can be contacted at
te@hawaiilawyer.com
General Contractors Have Expansive Common Law and Statutory Duties To Provide a Safe Workplace
February 18, 2020 —
Paul R. Cressman Jr. - Ahlers Cressman & Sleight PLLCOn November 21, 2019, the Washington Supreme Court handed down its decision in Vargas v. Inland Washington, LLC.[1]
At the time of the incident in May 2013, Mr. Vargas, the plaintiff, was helping pour the concrete walls for what would become a parking garage for an apartment building. He was employed by Hilltop Concrete Construction. Inland Washington was the general contractor, and subcontracted with Hilltop to pour concrete. Hilltop, in turn, entered into agreements with Ralph’s Concrete Pumping and Miles Sand & Gravel to provide a pump truck, certified pump operator, and supply concrete.
A rubber hose carrying concrete whipped Mr. Vargas in the head. It knocked him unconscious and caused a traumatic brain injury.
Vargas, through his guardian ad litem, along with his wife and children, sued Inland Washington, Ralph’s, and Miles.
The trial court initially dismissed on summary judgment Vargas’ claims that Inland Washington was vicariously liable for the acts of Hilltop, Ralph’s, and Miles. Later, the trial court also granted Inland Washington’s motion for summary judgment that it was not directly liable as a matter of law.
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Paul R. Cressman Jr., Ahlers Cressman & Sleight PLLCMr. Cressman may be contacted at
paul.cressman@acslawyers.com
Wichita Condo Association Files Construction Defect Lawsuit
November 20, 2013 —
CDJ STAFFKey Construction, the contractor of a downtown Wichita, Kansas mixed-use development has been sued by the condominium association of the development’s condo building. The WaterWalk Place Owners Association claims that the balconies on the building do not drain properly. Additionally, the suit claims that the building has water intrusion problems due to inappropriate or missing sealant at windows, doors, and expansion joints.
Key Construction says that they are dealing with the problems and describe the suit as due to “a deadline pushing on” the residents. Wyatt Hock, the attorney for the residents, says that he hopes for a settlement.
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New Standard Addresses Wind Turbine Construction Safety Requirements and Identifies Hazards
October 09, 2018 —
Christopher Daniels - Construction ExecutiveAmerican Society of Safety Professionals’ industry consensus standard, ANSI/ASSP A10.21 – 2018 Safety Requirements for Safe Construction and Demolition of Wind Generation/Turbine Facilities, is the first standard to identify and address hazards specific to wind turbine construction. It includes nearly a dozen appendices that provide additional consideration and guidance for hazards that vary between projects, turbines and geographical areas.
The new A10.21 standard starts by requiring a site hazard identification prior to construction commencing. It establishes the general contractor as the responsible party for site hazard identification assessment. This is because the general contractor is usually one of the first entities on site able to assess the various challenges/concerns such as: geography, utilities, environmental, etc. This assessment is usually done by driving the project site and identifying GPS coordinates of specific challenges.
Reprinted courtesy of
Christopher Daniels, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Daniels may be contacted at
chris.daniels@mortenson.com
Court Orders House to be Demolished or Relocated
April 26, 2011 —
Beverley BevenFlorezCDJ STAFFDecision Affirmed in Central Arkansas Foundation Homes, LLC v. Rebecca Choate
The Arkansas Court of Appeals affirmed the decision by the trial court in Central Arkansas Foundation Homes, LLC v. Rebecca Choate. In the trial case, Central Arkansas Foundation Homes (CAFH) sought payment for a home built for Choate, while Choate alleged that the builders committed multiple construction defects including using the wrong foundation materials and positioning the house in the wrong direction.
After the house was built, CAFH contacted Choate regarding payment, however, Choate alleged that the finished product did not match the contract. “ After CAFH completed construction, it obtained permanent home financing for Choate and tried to contact her to close the transaction. Choate did not respond until October 2005, when she sent CAFH a list of alleged construction defects, including that the house was facing in the wrong direction; that it was not built on a slab; and that the fireplace, garbage disposal, driveway, and storage area were missing. CAFH replied to Choate in writing, telling her that she had until January 6, 2006, to close on the house or CAFH would sell it. The correspondence enclosed worksheets showing that the amount Choate would owe at closing exceeded $94,000, which included interest that had accrued on the as-yet unpaid construction loan.”
Initially, the court found in favor of CAFH. “On April 18, 2007, Choate’s attorney withdrew from representing her. Soon thereafter, CAFH’s attorney asked the court to set a final hearing on the case. The attorney purportedly sent Choate a letter by regular mail on May 15, 2007, advising her that the case was set for trial on July 9, 2007. Choate, however, did not appear. CAFH did appear, and its general manager, John Oldner, testified to events leading up to the case and the amount of damages claimed. According to Oldner, the interest on the construction loan had accrued to the point that CAFH now sought $104,965.88 from Choate. The court found in favor of CAFH and entered judgment for that amount, plus attorney fees, on July 18, 2007. The court ruled that CAFH could sell the house and either remit any excess to Choate or look to Choate for the deficiency if the sales price did not cover the judgment.”
However, Choate successfully argued that she did not receive notice of the trial. A new trial was ordered, and the outcome was quite different. “On June 6, 2008, the circuit court entered judgment for Choate, ruling that the house was not in substantial compliance with the parties’ contract and that the contract should be rescinded. The court found that the house suffered from numerous construction defects, that the contract contemplated a slab rather than a concrete-pier foundation, and that CAFH ignored Choate’s complaints that the house was facing the wrong way. The judgment directed CAFH to hold Choate harmless on the construction loan, to deed Choate’s two acres back to her, and to remove the house from Choate’s property.”
The Court of Appeals “found that Choate would be unjustly enriched by retaining the benefit of the septic systems and utility lines that CAFH installed on her land. The court therefore awarded $5340 to CAFH as a quantum-meruit recovery for the value of that work. CAFH contends that the award is not sufficient, but we see no clear error.” In the end, the Court of Appeals provided this reason for declining to reverse the trial court’s decision: “The court in this case apparently concluded that the house constructed by CAFH was so fundamentally at odds with Choate’s contractual expectations that she was not unjustly enriched and should simply be, as nearly as possible, returned to the status quo ante. Accordingly, the court ordered the house removed from her property and permitted CAFH to either relocate the house or salvage the house’s materials and unused appliances. We decline to reverse the court’s weighing of the equities in this manner.”
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Construction Defect Bill a Long Shot in Nevada
June 28, 2013 —
CDJ STAFFConstruction defect reform may still be on the table in Nevada, according to the Reno Gazette Journal. Assembly member Pat Hickey got a committee hearing for Assembly Bill 504 on Sunday. The bill is backed by the construction industry and opposed by trial lawyers. Hickey told the Assembly Commerce and Labor committee that “this bill is not perfect, I would like for it to do more,” and said that without changes Nevada will “continue to reward litigation over resolution.”
AB504 would, among other provisions, provide some protection to subcontractors from the actions of general contractors, though Ira Hansen, an assembly member from Sparks and the owner of a plumbing business, called it a “backhanded slap.” The Gazette noted that similar language pertaining to subcontractors was in AB367, which is sponsored by Democrats. Hickey and Hansen are both Republicans.
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