Builder Waits too Long to Dispute Contract in Construction Defect Claim
May 10, 2012 —
CDJ STAFFThe Louisiana Court of Appeals has affirmed the lower court’s judgment in the case of Richard v. Alleman. The Richards initiated this lawsuit under Louisiana’s New Home Warranty Act, claiming that they had entered into a construction contract with Mr. Alleman and that they quickly found that his materials and methods had been substandard. They sued for the cost of repairing the home and filing the lawsuit. Mr. Alleman countersued, claiming the Richards failed to pay for labor, materials, and services. By his claim, they owed him $12,838.80.
The trial court split the issues of liability and damages. In the first trial, the court concluded that there was a contact between Alleman and the Richards and that the New Home Warranty Act applied. Mr. Alleman did not appeal this trial.
The second trial was on the issue of damages. Under the New Home Warranty Act, the Richards were found to be entitled to $36,977.11 in damages. In a second judgment, the couple was awarded $18,355.59 in attorney’s fees. Mr. Alleman appealed both judgments.
In his appeal, Alleman contended that the trial court erred in determining that the Home Warranty Act applied. This was, however, not the subject of the trial, having been determined at the earlier trial. Nor did the court accept Alleman’s claim that the Richards failed to comply with the Act. The trial record made clear that the Richards provided Alleman with a list of problems with their home by certified mail.
The court did not establish whether the Richards told Alleman to never return to their home, or if Alleman said he would never return to the home, but one thing was clear: Alleman did not complete the repairs in the list.
A further repair was added after the original list. The Richards claimed that with a loud noise, a large crack appeared in their tile flooring. Mr. Alleman stated that he was not liable for this as he was not given a chance to repair the damage, the Richards hired the flooring subcontractors, and that the trial court rejected the claim that the slab was defective. The appeals court found no problem with the award. Alleman had already “refused to make any of the repairs.”
Finally Alleman made a claim on a retainage held by the Richards. Since Alleman did not bring forth proof at trial, the appeals court upheld the trial courts refusal to award a credit to Alleman.
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Texas Jury Finds Presence of SARS-CoV-2 Virus Causes “Physical Loss or Damage” to Property, Awards Over $48 Million to Baylor College of Medicine
September 26, 2022 —
Michael S. Levine & Kevin V. Small - Hunton Insurance Recovery BlogA Texas jury has found that the presence of SARS-CoV-2 virus on the property of Baylor College of Medicine (BCM) caused “physical loss or damage” and resulting economic loss, triggering coverage under BCM’s commercial property insurance program. The jury awarded BCM over $48 million following a three-day trial; the award consisted of $42.8 million in business interruption, $3.3 million in extra expense, and $2.3 million in damage to research projects.
The verdict came after the court denied the insurers’ pre-trial motion for summary judgment, rejecting the insurers’ contention that a virus cannot—as a matter of law—cause physical loss or damage to property. In denying the motion, the court held that whether the presence of the virus causes physical loss or damage presents a question of fact for the jury to resolve; a copy of the order rejecting the insurers’ summary judgment argument can be found
here.
Reprinted courtesy of
Michael S. Levine, Hunton Andrews Kurth and
Kevin V. Small, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Small may be contacted at ksmall@HuntonAK.com
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The 2017 ASCDC and CDCMA Construction Defect Seminar and Holiday Reception
November 21, 2017 —
Beverley BevenFlorez-CDJ STAFFThe annual Construction Defect Seminar and Holiday Reception presented jointly by the Association of Southern California Defense Counsel (ASCDC) and the Construction Defect Claims Managers Association (CDCMA) takes place this November 30th at the Hilton Costa Mesa. This one-day seminar includes two sessions: Session 1, Recent developments in Insurance Coverage and Related Impacts on Case Resolution; Session 2, Impact of Design Claims in Construction Defect Actions. A holiday reception will immediately follow the seminar.
The keynote speaker this year is Hon. Charles Margines, Presiding Judge of the Orange Superior Court. Other speakers include David Napper, Esq., of Chapman Glucksman Dean Roeb & Barger, Adrienne Cohen, Esq., Law Offices of Adrienne D. Cohen, Blenda Eyvazzadeh, Chub North American Claims, and many others. This activity has been approved for Minimum Continuing Legal Education Credit by the State Bar of California in the amount of 3.0 hours.
November 30th, 2017
Hilton Costa Mesa
3050 Bristol Street
Costa Mesa, California 92626
United States
PDF Registration...
Online Registration...
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CDJ’s #3 Topic of the Year: Burch v. The Superior Court of Los Angeles County, 223 Cal.App.4th 1411 (2014)
December 31, 2014 —
Beverley BevenFlorez-CDJ STAFFIn 2013, the case Liberty Mutual Insurance Company v. Brookfield Crystal Cove, LLC received a great deal of attention for its possible ramifications to how California’s Right to Repair Act (also known as SB 800) could be applied. However, 2014 had its share of SB 800 policy trends, most notably caused by the ruling in Burch.
In their article, “Construction Law Client Alert: California’s Right to Repair Act (SB 800) Takes Another Hit, Then Fights Back,” authors Steven M. Cvitanovic and Whitney L. Stefco, of Haight Brown & Bonesteel, analyzed Burch as well as KB Home Greater Los Angeles v. The Superior Court of Los Angeles County, et al., both cases that had ramifications on how California’s Right to Repair Act is applied.
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Karen L. Moore of Low, Ball & Lynch discussed the Liberty Mutual and Burch cases in her article, “California’s Right to Repair Act is Not a Homeowner’s Exclusive Remedy when Construction Defects cause Actual Property Damage.”
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New Mexico Adopts Right to Repair Act
April 25, 2023 —
William L. Doerler - The Subrogation StrategistOn April 7, 2023, New Mexico’s governor, Michelle Lujan Grisham, signed into law New Mexico’s Right to Repair Act (Act), 2023 N.M. SB 50. The Act’s effective date is July 1, 2023. The Act applies to construction defects in dwellings, i.e., newly constructed single family housing units designed for residential use. The Act applies to not only newly constructed housing units but also to systems and other components and improvements that are part of the housing unit at the time of construction.
Pursuant to the Act, except for construction defect claims that involve an immediate threat to the life or safety of persons occupying the dwelling, that render the dwelling uninhabitable or in which the seller, after notice, refused to make a repair pursuant to any applicable express warranty, a purchaser must comply with the provisions of the Act before filing a complaint or pursing an alternative dispute mechanism related to a construction defect in the dwelling. A seller who receives a notice complying with the provisions of the Act must give notice to all construction professionals who may be responsible for the defect.
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William L. Doerler, White and Williams LLPMr. Doerler may be contacted at
doerlerw@whiteandwilliams.com
More Broad-Based Expansion for Construction Industry Expected in 2015
January 07, 2015 —
Garret Murai - California Construction Law BlogIt’s a short week for most of us this week.
Christmas is over and New Year’s is approaching.
So, what will 2015 bring us?
According Dodge Data & Analytics’s 2015 Dodge Construction Outlook: Continuing expansion of the construction sector, but one that is more broad-based than in recent years.
“The economic environment going forward carries several positives that will help to further lift total construction starts,” said Robert Murray, Chief Economist and Vice President at Dodge Data & Analytics. “Financing for construction projects is becoming more available, reflecting some easing of bank lending standards, a greater focus on real estate development by the investment community, and more construction bond measures getting passed. While federal funding for construction programs is still constrained, states are now picking up some of the slack. Interest rates for the near term should stay low, and market fundamentals (occupancies and rents) for commercial building and multifamily housing continue to strengthen.”
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
California Contractor Tests the Bounds of Job Order Contracting
March 01, 2021 —
Garret Murai - California Construction Law BlogMost contractors have heard of design-bid-build, design-build, construction manager at risk, and even public private partnerships, various project delivery methods, which, at their heart, focus on balancing the interests of the various parties involved in a construction project, from owners, to design professionals, to contractors. There’s one project delivery method you may not be as familiar with though: Job Order Contracting, also known by its acronym JOC.
JOC contracting is a project delivery method used on public works projects and has been authorized to be used by California K-12 school districts, community colleges, CalState universities, and the Judicial Council of California, which, among other things, is responsible for the construction of California state courts. It is intended to be used on smaller, independent, long-horizon project typically involving maintenance, repair and refurbishment. Think periodic maintenance of facilities.
JOC contracts are administered by public entities issuing a request for proposals. The public entity then awards a JOC contract to the lowest responsible bidder. The lowest responsible bidder then enters into a JOC contract with the public entity. JOC contracts typically have a duration of one (1) year and are limited to a total construction value of $4.9 million increased annually based on the Consumer Price Index. When entering into a JOC contract, a JOC contractor agrees to perform work at prices set forth in a Construction Task Catalog also known as a unit price book which includes current local labor, material and equipment costs. Unit prices are then adjusted by a “bid adjustment factor” based on the JOC contractor’s bid. When work is needed, the public entity will then issue a job order to the JOC contractor.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
New York's Highest Court Says Asbestos Causation Requires Evidence Of Sufficient Exposure To Sustain Liability
May 10, 2022 —
Rafael Vergara & Jhonattan N. Gonzalez - White and WilliamsOn April 26, 2022, the New York Court of Appeals described that in toxic tort cases a plaintiff can only establish liability-creating causation for an adverse health effect with “expert testimony based on generally accepted methodologies.” See
Francis Nemeth v. Brenntag North America (N.Y. Apr. 26, 2022). The suit involved alleged asbestos exposure from talc.
The plaintiff alleged liability for talc contaminated with asbestos that was ultimately used in a commercial talcum powder, Desert Flower, which the decedent applied daily from 1960 to 1971. At trial, the plaintiff proffered two expert witnesses, a geologist, Sean Fitzgerald, who testified about the “glove box test” and a doctor of internal medicine, Dr. Jacqueline Moline. Fitzgerald’s glove box test consisted of agitating a sample of Desert Flower in a Plexiglas chamber. Fitzgerald concluded that the asbestos fibers in the sample of Desert Flower were “significantly releasable” and that the decedent was exposed to thousands to trillions of fibers through repeated use. Dr. Moline concluded Desert Flower was “a substantial contributing factor” to the decedent’s peritoneal mesothelioma. The jury returned a verdict in the plaintiff’s favor.
Reprinted courtesy of
Rafael Vergara, White and Williams and
Jhonattan N. Gonzalez, White and Williams
Mr. Vergara may be contacted at vergarar@whiteandwilliams.com
Mr. Gonzalez may be contacted at gonzalezj@whiteandwilliams.com
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