Time Limits on Hidden Construction Defects
November 06, 2013 —
CDJ STAFFFrom the time a home is built, California starts a ten-year countdown, which Alan I. Schimmel, writing at California Lawyer, notes is not a statute of limitations, but a statute of repose. During that time, homeowners might be able file a claim over construction defects that don’t immediately become evident. After that ten-year limit, “any latent defects they discover would have to be corrected using money from their own pockets.”
The readily observable defects, the patent defects, have a four-year limit. Mr. Schimmel focusses on latent defects, “which generally lurk behind walls or underground.” He also notes that “they may cause catastrophic damage before they are even detected.” If a construction defect is found, the “law requires the owner of a single-family residence to notify the builder in writing of the claimed defects.”
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Colorado Court of Appeals’ Ruling Highlights Dangers of Excessive Public Works Claims
August 26, 2024 —
David M. McLain – Colorado Construction LitigationIn the case of Ralph L. Wadsworth Construction Company, LLC v. Regional Rail Partners (2024 COA 78), the Colorado Court of Appeals reviewed a complex contract dispute related to the design and construction of a transit rail line. The project, commissioned by the Regional Transportation District (“RTD”), involved a collaboration between Regional Rail Partners and Ralph L. Wadsworth Construction Company (“Wadsworth”) to build the North Metro Rail Line between Denver Union Station and Thornton.
Key Facts:
- Contracts and Payments: Regional Rail Partners contracted with Wadsworth to perform specific construction tasks with a total contract value of $60,210,783. By the time of the trial, Regional Rail had paid almost $58 million of this amount.
- Disputes and Delays: The project faced numerous delays and disputes, leading to Wadsworth claiming significant financial damages attributed to these disruptions. In April 2018, Wadsworth’s expert estimated that Regional Rail owed them $12,408,496.60.
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David McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
Standard of Care
December 16, 2019 —
Jay Gregory - Gordon & Rees Construction Law BlogOne of the key concepts at the heart of Board complaints and civil claims against a design professional is whether or not that design professional complied with the applicable standard of care. In order to prevail on such a claim, the claimant must establish (typically with the aid of expert testimony) that the design professional deviated from the standard of care. On the other side of the coin, to defend a design professional against a professional malpractice claim, defense counsel attempts to establish that – contrary to the claimant’s allegations – the design professional, in fact, complied with the standard of care. Obviously, it becomes very important in such a claim situation to determine what the standard of care is that applies to the conduct of the defendant design professional. Often, this is easier said than done. There is no dictionary definition or handy guidebook that identifies the precise standard of care that applies in any given situation. The “standard of care” is a concept and, as such, is flexible and open to interpretation. Traditionally, the standard of care is expressed as being that level of service or competence generally employed by average or prudent practitioners under the same or similar circumstances at the same time and in the same locale. In other words, to meet the standard of care a design professional must generally follow the pack; he or she need not be perfect, exemplary, outstanding, or even superior – it is sufficient merely for the designer to do that which a reasonably prudent practitioner would do under similar circumstances. The negative or reverse definition also applies, to meet the standard of care, a practitioner must refrain from doing what a reasonably prudent practitioner would have refrained from doing.
Although we have this ready definition of the standard of care, in any given dispute it is practically inevitable that the parties will have markedly different opinions as to: (1) what the standard of care required of the designer; and (2) whether the defendant design professional complied with that requirement. The claimant bringing a claim against a design professional typically will be able to find an expert reasonably qualified (at least on paper) who will offer an opinion that the defendant failed to comply with the standard of care. It is just as likely that the counsel for the defendant design professional will be able to find his or her own expert who will counter the opinion of the claimant’s expert and maintain that the defendant design professional, in fact, complied with the standard of care. What’s a jury to think?
The concept of standard of care is intertwined with the legal concept of negligence. In the vast majority of law suits against design professionals, a claimant (known as the plaintiff) will assert a claim for negligence against the design professional now known as the defendant.1 As every first year law student learns while studying the field of “Torts,” negligence has four subparts. In order for a defendant to be found negligent, the claimant must establish four elements: (1) duty; (2) breach; (3) causation; and (4) damages. In other words, to establish a claim against a defendant design professional, a plaintiff must demonstrate that the defendant owed the plaintiff a duty of care but breached that duty and, as a result, caused the plaintiff to suffer damages.
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Jay Gregory, Gordon & Rees Scully MansukhaniMr. Gregory may be contacted at
jgregory@grsm.com
Attorney's Erroneous Conclusion that Limitations Period Had Not Expired Was Not Grounds For Relief Under C.C.P. § 473(b)
February 27, 2019 —
David W. Evans & Stephen J. SquillarioIn Jackson v. Kaiser Foundation Hospitals, Inc. (2/8/19 No. A150833), the First District Court of Appeal affirmed the trial court’s denial of a motion for relief from a voluntary dismissal, without prejudice, filed by the plaintiff based on the erroneous conclusion of an attorney who she had consulted (but who had not yet appeared as counsel in her case) that the applicable statute of limitations had not yet expired. In reality, the limitations period had expired on the same date plaintiff had filed her complaint in propria persona. The plaintiff later retained the attorney on a limited basis to present the motion for relief pursuant to Code of Civil Procedure § 473(b) based on the attorney’s affidavit of fault. Therein, the attorney testified that he had advised the plaintiff to dismiss her action voluntarily based on a misinterpretation of the applicable limitations period, which the attorney characterized as having been based on his “mistake, inadvertence, surprise, or neglect.”
Section 473 provides two distinct provisions for relief from default or dismissal – one is discretionary, while the other is mandatory. Discretionary relief is available in the case of an attorney’s mistake, inadvertence, surprise, or excusable neglect. In contrast, mandatory relief is available where the resulting dismissal was caused by an attorney’s mistake, whether or not excusable. In denying the plaintiff’s motion, the trial court reasoned that the plaintiff could not rely upon Section 473(b) because (1) the attorney did not represent the plaintiff at the time and (2) this provision did not apply to the voluntary dismissal of an action without prejudice.
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David W. Evans, Haight Brown & Bonesteel LLP and
Stephen J. Squillario, Haight Brown & Bonesteel LLP
Mr. Evans may be contacted at devans@hbblaw.com
Mr. Squillario may be contacted at ssquillario@hbblaw.com
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Coverage for Construction Defect Barred by Contractual-Liability Exclusion
July 30, 2014 —
Tred R. Eyerly – Insurance Law HawaiiRelying upon precedent from the Texas Supreme Court, the Fifth Circuit upheld the District Court's denial of coverage based upon the policy's contractual-liability exclusion. Crownover v. Mid-Continent Cas. Co., 2014 U.S. App. LEXIS 12158 (5th Cir. June. 27, 2014).
The Crownovers entered a construction contract with Arrow Development, Inc. to construct a home. Paragraph 23.1 of the contract contained a warranty-to-repair clause, which provided Arrow "would correct work . . . failing to conform to the requirements of the Contract Documents." After the work was completed, cracks began to appear in the walls and foundation of the Crownovers' home. Additional problems with the heating, ventilation, and air conditioning system caused leaking in exterior lines and air ducts inside the home.
When Arrow refused to correct the problems, the Crownovers initiated arbitration. The arbitrator found that the Crownovers had a meritorious claim for breach of the express warranty to repair contained in paragraph 23.1 of the construction contract. Damages were awarded.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Disputed Facts on Cause of Collapse Results in Denied Cross-Motions for Summary Judgment
January 31, 2018 —
Tred R. Eyerly – Insurance Law HawaiiAlthough the court concluded that the policy covered a loss caused by the weight of snow, disputed facts as to the cause of the collapse led to the denial of cross-motions for summary judgment. Freeway Drive Inv., LLC v Employers Mut. Cas. Co., 2017 U.S Dist. LEXIS 207165 (E.D Mich. Dec. 18, 2017).
Freeway Drive owned a single story commercial building insured by Employers Mutual Casualty Company (EMCC). The building sustained damage when trusses within the roof shifted and dropped, causing visible sagging. EMCC denied Freeway Drive's claim.
Freeway Drive hired structural engineer Abdul Brinjikji to inspect the damage. He visited the building three times. On the first visit, he saw snow on the roof but could not estimate how much. Nevertheless, he opined that the collapse was caused by an overload of snow. He developed a plan to shore up the roof and repairs commenced.
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Tred R. Eyerly, Insurance Law HawariiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Insurer Must Defend Claims of Negligence and Private Nuisance
July 10, 2018 —
Tred R. Eyerly - Insurance Law HawaiiThe court determined there was a duty to defend negligence and private nuisance claims for dumping materials on the plaintiffs' property. Peters Heavy Construction, Inc. v. X-Pert One Tracking Corp., 2018 Wisc. App. LEXIS 358 (Wis. Ct. App. March 29, 2018).
Peters Heavy Construction sued X-Pert One for negligently depositing shingle materials, tires, and other solid materials on Peters' property, causing damage to Peters, including loss of use of portions of the property. Peters also alleged that X-Pert One's actions negligently created a private nuisance causing harm to Peters' property. X-Pert One's insurer, Northfield Insurance Company, was also sued.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Lakewood First City in Colorado to Pass Ordinance Limiting State Construction Defect Law
October 15, 2014 —
Beverley BevenFlorez-CDJ STAFFThe Denver Post reported that the Lakewood City Council passed an ordinance “designed to soften the effects of Colorado's controversial construction-defects law.” Specifically, the ordinance “gives developers and builders a ‘right to repair’ defects before facing litigation and would require condominium association boards to get consent from a majority of homeowners — rather than just the majority of the board — before filing suit.”
Not all residents are in favor of the ordinance. "It protects builders and big business at the expense of homeowners," Chad Otto, former president of the Grant Ranch homeowners association, told the crowd, as quoted by the Denver Post. "Does Lakewood want to be known as the mecca of poorly built condos?"
Proponents of the measure, including Lakewood Mayor Bob Murphy, claim that “Colorado's defects law…has forced up insurance premiums on new condo projects to the point where they are no longer feasible to build.” Furthermore, according to the Denver Post, “Condos represented only 4.6 percent of total new home starts in metro Denver in the second quarter of 2014, versus more than 26 percent in 2008, according to Metrostudy.”
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