FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

HOA Has No Claim to Extend Statute of Limitations in Construction Defect Case

October 28, 2011 — CDJ STAFF

The California Court of Appeals ruled on September 20, 2011 in the case of Arundel Homeowners Association v. Arundel Green Partners, a construction defect case involving a condominium conversion in San Francisco. Eight years after the Notice of Completion was filed, the homeowners association filed a lawsuit alleging a number of construction defects, including “defective cabinets, waterproofing membranes, wall-cladding, plumbing, electrical wiring, roofing (including slope, drainage and flashings), fire-rated ceilings, and chimney flues.” Three years of settlement negotiations followed.

Negotiations ended in the eleventh year with the homeowners association filing a lawsuit. Arundel Green argued that the suit should be thrown out as California’s ten-year statute of limitations had passed. The court granted judgment to Arundel Green.

The homeowners then filed for a new trial and to amend its complaint, arguing that the statute of limitations should not apply due to the doctrine of equitable estoppel as Arundel Green’s actions had lead them to believe the issues could be solved without a lawsuit. “The HOA claimed that it was not until after the statute of limitations ran that the HOA realized Arundel Green would not keep its promises; and after this realization, the HOA promptly brought its lawsuit.” The trial court denied the homeowners association’s motions, which the homeowners association appealed.

In reviewing the case, the Appeals Court compared Arundel to an earlier California Supreme Court case, Lantzy. (The homeowners also cited Lantzy as the basis of their appeal.) In Lantzy, the California Supreme Court set up a four-part test as to whether estoppel could be applied. The court applied these tests and found, as was the case in Lantzy, that there were no grounds for estoppel.

In Arundel, the court noted that “there are simply no allegations that Arundel Green made any affirmative statement or promise that would lull the HOA into a reasonable belief that its claims would be resolved without filing a lawsuit.” The court also cited Lesko v. Superior Court which included a recommendation that the plaintiffs “send a stipulation?Ķextending time.” This did not happen and the court upheld the dismissal.

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Insurer's Summary Judgment Motion to Reject Claim for Construction Defects Upheld

August 15, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The Third Circuit upheld the district court's order granting summary judgment in favor of the insurer on a claim seeking coverage for construction defects. Lenick Constr. v. Selective Way Ins. Co., 2018 U.S. App. LEXIS 15197 (3d Cir. June 6, 2018). Westrum was the general contractor for a 92 unit development, and it subcontracted with Lenick to perform rough and finish carpentry and to install paneling, windows, and doors provided by the developer. After the project was completed, it was discovered that some units experienced water infiltration, leaks and cracked drywall. The condominium development sued Westrum, alleging contract and warranty claims. Westrum impleaded Lenick, asserting claims for breach of contract and indemnification. Lenick sought a defense from its insurer, Selective. Selective defended under a reservation of rights. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Important Environmental Insurance Ruling Issued In Protracted Insurance-Coverage Dispute

May 16, 2018 — Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law Blog
The latest ruling in the long-running environmental insurance case, Olin Corporation v. Lamorak Ins. Co., was released on April 18, 2018, by Judge Rakoff of the U.S. District Court of the Northern District of New York. Judge Rakoff granted motions for summary judgment filed by Olin Corporation (Olin) and The London Market Insurers, and awarded Olin $55M for its claims against Lamorak Insurance Company (Lamorak). As Judge Rakoff notes, “the overall litigation, having already outlived two federal judges, is now before the unlucky undersigned.” This ruling is in response to the Second Circuit’s most recent decision in Olin Corp. v. OneBeacon Americans Ins. Co. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury Winthrop Shaw Pittman LLP
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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Federal Judge Issues Preliminary Injunction Blocking State's Enforcement of New Law Banning Mandatory Employee Arbitration Agreements

February 24, 2020 — Amy R. Patton, Jeffrey K. Brown & Tyler B. Runge - Payne & Fears
On January 31, 2020, Judge Kimberly Mueller issued a preliminary injunction "in full" preventing the State of California from enforcing AB 51, the state's new law effectively banning mandatory employee arbitration agreements. As we previously reported, AB 51 adds section 432.6 to the Labor Code and section 12953 to the Government Code, which together prohibit employers from requiring an employee, as a condition of employment, continued employment, or receipt of employment-related benefits, to waive any right, forum, or procedure to pursue a claim under the California Fair Employment and Housing Act or the Labor Code. In other words, AB 51 bans mandatory employment arbitration agreements for employment-related claims. In early December 2019, the U.S. Chamber of Commerce and a coalition of business organizations sued the state of California in federal court in a bid to have AB 51 declared preempted --- and therefore unenforceable --- by the Federal Arbitration Act. The case is Chamber of Commerce of the United States v. Becerra, Case No. 2:19-cv-2456 KJM DB (E.D. Cal.). On December 30, 2019, Judge Mueller issued a temporary restraining order preventing the state from enforcing AB 51 pending the resolution of plaintiffs' motion for a preliminary injunction. You can read our report here. Reprinted courtesy of Payne & Fears attorneys Amy R. Patton, Jeffrey K. Brown and Tyler B. Runge Ms. Patton may be contacted at arp@paynefears.com Mr. Brown may be contacted at kb@paynefears.com Mr. Runge may be contacted at tbr@paynefears.com Read the court decision
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Fluor Agrees to $14.5M Fixed-Price Project Cost Pact with SEC

September 25, 2023 — Debra K. Rubin - Engineering News-Record
Fluor Corp. has agreed to pay $14.5 million to resolve a U.S. Securities and Exchange Commission investigation for alleged “improper accounting” and "overly optimistic" cost and timing estimates in bidding two legacy fixed-price projects that forced the company to restate its 2020 financial results, the agency said on Sept. 6. Reprinted courtesy of Debra K. Rubin, Engineering News-Record Ms. Rubin may be contacted at rubind@enr.com Read the full story... Read the court decision
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Colorado SB 15-177 UPDATE: Senate Business, Labor, & Technology Committee Refers Construction Defect Reform Bill to Full Senate

April 01, 2015 — Derek J. Lindenschmidt – Higgins, Hopkins, McLain & Roswell, LLC
On March 18th, following a lengthy hearing with testimony and questioning for and against Senate Bill 15-177, the Senate Business, Labor & Technology Committee voted 6 to 2 to refer the bill, with new amendments, to the full Senate. While the main points of the bill remain strongly intact (check here for Senate Bill 177’s particulars), bill sponsors Senators Scheffler and Ulibarri offered four amendments, designed to bring additional compromise and clarity to the bill. The committee ultimately adopted these amendments, described below. Amendment 16 removed a prior prohibition in the bill that would have prevented attorneys from assisting in the preparation of the notice required to be provided to all homeowners before the commencement of a construction defect claim. Amendment 19 complemented 16 by providing further clarification regarding the contents and specificities required in said notice, including a disclosure of projected attorneys’ fees, costs, duration, and financial impact of pursuing construction defect claims. Amendment 17 permitted homeowners to approve the pursuit of construction defect claims through written consent. Lastly, Amendment 18 provided clarification regarding the bill’s requirement that mediators and arbitrators be selected and approved through mutual agreement of the parties. Read the court decision
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Reprinted courtesy of Derek J. Lindenschmidt, Higgins, Hopkins, McLain & Roswell, LLC
Mr. Lindenschmidt may be contacted at lindenschmidt@hhmrlaw.com

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Common Flood Insurance Myths and how Agents can Debunk Them

September 17, 2014 — Beverley BevenFlorez-CDJ STAFF
Property Casualty 360 listed four common misconceptions that many homeowners have about flood insurance. First myth on the list was, “I don’t have to worry about flooding because I don’t live near a body of water.” The author pointed out recent floods in desert areas such as Arizona and Nevada. “I don't qualify for government flood insurance because my property isn’t located in a flood plain,” made number two on the list. According to Property Casualty 360, “NFIP can provide coverage available to any homeowner, regardless of their location.” Read the court decision
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Wildfire Threats Make Utilities Uninsurable in US West

August 12, 2024 — Mark Chediak - Bloomberg
Trinity Public Utilities District’s power lines snake through the lower reaches of the Cascade Range, a rugged, remote and densely forested terrain in Northern California that has some of the highest wildfire risk in the country. But for several years, the company has been without insurance to protect it from such a threat. Trinity’s equipment was blamed for causing a 2017 wildfire that destroyed 72 homes and three years later its insurer, a California public agency called the Special District Risk Management Authority, told the utility that it would no longer cover it for fires started by its electrical lines. Trinity could find no other takers. The utility’s exposure comes as wildfires are already flaring up across the US West in what could be a dangerous and prolonged fire season. “If a fire were to start now that involved one of our power lines, it would likely bankrupt the utility,” said Paul Hauser, general manager of the local government-owned utility that serves about 13,000 rural customers in Trinity County, 200 miles (322 kilometers) north of Sacramento. That’s because without insurance, a lawsuit could put the utility on the hook to pay for damages to private homes and businesses, which could easily top the utility’s annual revenue of about $16 million. Read the court decision
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Reprinted courtesy of Mark Chediak, Bloomberg

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