Newark Trial Team Secures Affirmance of ‘No Cause’ Verdict for Nationwide Housing Manager & Developer
January 07, 2025 —
Lewis Brisbois NewsroomNewark, N.J. (December 30, 2024) - Newark Partner Afsha Noran and Managing Partner Colin Hackett recently obtained a ruling by a New Jersey Appellate Division panel affirming a unanimous "no cause" defense verdict obtained on behalf of a nationwide housing developer and manager.
In this case, the plaintiff and her two minor children brought suit against the firm's client. They appealed a unanimous no-cause jury verdict rendered in May 2023 that found the defendants not liable for mold exposure in their apartment. The plaintiffs argued that several trial errors, including improper jury instructions, a confusing verdict sheet, and prejudicial remarks by defense counsel led to an unjust result. However, the appellate court affirmed the trial court's decision, concluding that there was no miscarriage of justice and that the trial court properly exercised its discretion in handling the case.
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Lewis Brisbois
Wilke Fleury and Attorneys Recognized as ‘Best Law Firm’ and ‘Best Lawyers’ by U.S. News!
November 08, 2017 —
Wilke FleuryWilke Fleury is pleased to announce its inclusion in the 2018 editions of ‘Best Law Firms’ in America and ‘Best Lawyers’ in America. The two award categories reflect excellence in legal service – firms included in the 2018 “Best Law Firms” list are recognized for professional excellence by clients and peers and Best Lawyers® has become universally regarded as the definitive guide to legal excellence.
Wilke Fleury Recognized in U.S. News 2018 Edition ‘Best Law Firms’ in America
Wilke Fleury is honored to be recognized among the nation’s Best Law Firms by U.S. News – Best Lawyers.
“Firms included in the 2018 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.”
Wilke Fleury Attorneys Elected to U.S. News 2018 Edition ‘Best Lawyers’ in America
Congratulations to
David A. Frenznick and
Ernest James Krtil on their election to the 2018 Edition ‘Best Lawyers in America.’
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Wilke Fleury
The Sensible Resurgence of the Multigenerational Home
August 13, 2014 —
Chris Farrell – BloombergOne of the biggest fears spawned by the recession and subsequent up-and-down recovery is getting stuck at home. The commonly expressed concern is that millennials are too burdened with student debts and poor job prospects to make it on their own. According to the narrative of generational dependency, the resurgence in multigenerational living is a trend hardly worth celebrating.
Or is it? Yes, many young college graduates have faced tough economic circumstances in recent years. But the trend toward embracing the multigenerational home began well before the Great Recession, suggesting something else is at work. A record 57 million Americans, or 18.1 percent of the population, lived in a multigenerational household in 2012, according to a Pew Research report, “In Post-Recession Era, Young Adults Drive Continuing Rise in Multi-Generational Living,” released on June 17, 2014. (You can include the First Family among the multigenerational households.) That’s up from 28 million, or 12.1 percent of the population, in 1980. Equally impressive, the return of the multigenerational household marks a striking reversal of the post-World War II decline. In 1940, 24.7 percent of the population resided in a multigenerational home, a living arrangement that bottomed in the early 1980s.
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Chris Farrell, Bloomberg
Insurance Law Alert: California Supreme Court Limits Advertising Injury Coverage for Disparagement
June 18, 2014 —
Valerie A. Moore and Chris Kendrick - Haight Brown & Bonesteel LLPIn Hartford Casualty Ins. v. Swift Distribution (No. S207172, filed 6/12/14), the California Supreme Court affirmed a 2012 appeals court holding that there is no advertising injury coverage on a theory of trade disparagement if the competitor's advertisements do not expressly refer to the plaintiff's product and do not disparage the plaintiff's product or business. In doing so, the Supreme Court expressly disapproved Travelers Property Casualty Company of America v. Charlotte Russe Holding, Inc. (2012) 207 Cal.App.4th 969 ("Charlotte Russe"), which held that coverage could be triggered for "implied disparagement" by allegations that a retailer's heavy discounts on a manufacturer's premium apparel suggest to consumers that the manufacturer's products are of inferior quality.
In Hartford v. Swift the plaintiff, Dahl, held a patent for the "Multi-Cart," a collapsible cart that could be manipulated into different configurations. When Dahl's competitor Ultimate began marketing the "Ulti-Cart," Dahl sued alleging that Ultimate impermissibly manufactured, marketed, and sold the Ulti-Cart, which infringed patents and trademarks for Multi-Cart and diluted Dahl's trademark. Dahl alleged patent and trademark infringement, unfair competition, dilution of a famous mark, and misleading advertising arising from Ultimate's sale of Ulti-Carts. However, the advertisements for Ulti-Cart did not name the Multi-Cart, Dahl, or any other products beside the Ulti-Cart.
Reprinted courtesy of
Valerie A. Moore, Haight Brown & Bonesteel LLP and
Christopher Kendrick, Haight Brown & Bonesteel LLP
Ms. Moore may be contacted at vmoore@hbblaw.com; Mr. Kendrick may be contacted at ckendrick@hbblaw.com
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Specific Source of Water Not Relevant in Construction Defect Claim
June 28, 2013 —
CDJ STAFFThe Nebraska Court of Appeals has concluded that a lower court came to the correct conclusion in a construction defect case involving water intrusion. The Hiatts built a home in North Platte, Nebraska, in in 2004 which they sold to the Oettingers in May, 2006. Shortly thereafter, the Oettingers started experiencing problems with water intrusion and contacted the Hiatts. The Hiatts responded by replacing the septic lift. Subsequently, the Oettingers landscaped their yard, which they allege was done with the assistance of the Hiatts. The water problems continued and “the parties took substantial remedial measures, including excavating the sidewalk and inspecting the downspouts.” The water problems continued, getting worse and requiring increasingly aggressive responses.
The Oettingers then had a series of inspections, and they hired the last of these inspectors to actually fix the water intrusion problem. At that point, they filed a lawsuit against the Hiatts alleging that the Hiatts “breached their contact by constructing and selling a home that was not built according to reasonable construction standards,” and that they “were negligent in the repair of the home in 2009.”
During the trial, Irving Hiatt testified that they “tarred the outside of the basement and put plastic into the tar and another layer of plastic over the top of that.” He claimed that the problem was with the Oettingers’ landscaping. This was further claimed in testimony of his son, Vernon Hiatt, who said the landscaping lacked drainage.
The Oettingers had three experts testify, all of whom noted that the landscaping could not have been the problem. All three experts testified as to problems with the Hiatts’ construction. The court concluded that the Hiatts had breached an implied warranty, rejecting the claim that the water intrusion was due to the landscaping. The Hiatts appealed the decision of the county court to the district court. Here, the judgment of the lowest court was confirmed, with the district court again finding a breach of the implied warranty of workmanlike performance.
The Hiatts appealed again. They alleged that the district court should not have held a breach of implied warranty existed without proving the source of the water intrusion, and that damages should have been apportioned based on the degree to which the Oettingers’ landscaping and basement alterations were responsible. The appeals court dispensed with the second claim first, noting that “they do not argue this error in their brief nor do they explain how or why the trial court should have apportioned damages.” The court also noted that although the Oettingers made a negligence claim in their suit, the case had been decided on the basis of a breach of implied warranty.
The appeals court upheld the Oettingers’ claim of a breach of implied warranty. In order to do this, the court noted that the Oettingers had to show that an implied warranty existed, that the Haitts breached that warranty, damage was suffered as a result, and that no express warranty limited the implied warranty. That court noted that “the record is sufficient to prove that the Hiatts breached the implied warranty in the method in which they constructed the basement” and that “this breach was the cause of the Oettingers’ damages.”
The court concluded that the Oettingers “provided sufficient evidence that the Hiatts’ faulty construction allowed water, whatever its source, to infiltrate the basement.” The court rejected the Hiatts’ claim that the Oettingers’ repairs voided the warranty, as it was clear that the Hiatts were involved in carrying out these repairs. The court’s final conclusion was that “the evidence in the record supports the trial court’s factual finding that the Hiatts’ flawed construction caused water damage to the Oettingers’ basement.”
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THE CALIFORNIA SUPREME COURT HAS RULED THAT THE RIGHT TO REPAIR ACT (SB800) IS THE EXCLUSIVE REMEDY FOR CONSTRUCTION DEFECT CLAIMS NOT INVOLVING PERSONAL INJURIES WHETHER OR NOT THE UNDERLYING DEFECTS GAVE RISE TO ANY PROPERTY DAMAGE in McMillin Albany LL
January 24, 2018 —
Chapman, Glucksman, Dean, Roeb, & BargerRICHARD H. GLUCKSMAN, ESQ.
GLENN T. BARGER, ESQ.
JON A. TURIGLIATTO, ESQ.
DAVID A. NAPPER, ESQ.
The Construction Industry finally has its answer. The California Supreme Court ruled that the Right to Repair Act (SB800) is the exclusive remedy for construction defect claims alleged to have resulted from economic loss, property damage, or both. Our office has closely tracked the matter since its infancy. The California Supreme Court’s holding resolves the split of authority presented by the Fifth Appellate District’s holding in
McMillin Albany LLC v. Superior Court (2015) 239 Cal.App.4th 1132, which outright rejected the Fourth Appellate District’s holding in
Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98.
By way of background, the Fourth District Court of Appeal held in
Liberty Mutual that compliance with SB800’s pre-litigation procedures prior to initiating litigation is only required for defect claims involving violations of SB800’s building standards that have not yet resulted in actual property damage. Where damage has occurred, a homeowner may initiate litigation under common law causes of action without first complying with the pre-litigation procedures set forth in SB800. Two years later, the Fifth District Court of Appeal, in
McMillin Albany, held that the California Legislature intended that all claims arising out of defects in new residential construction sold on or after January 1, 2003 are subject to the standards and requirements of the Right to Repair Act, including specifically the requirement that notice be provided to the builder prior to filing a lawsuit. Thus, the Court of Appeal ruled that SB800 is the exclusive remedy for all defect claims arising out of new residential construction sold on or after January 1, 2003.
After extensive examination of the text and legislative history of the Right to Repair Act, the Supreme Court affirmed the Fifth District Court of Appeal’s ruling that SB800 preempts common law claims for property damage. The Complaint at issue alleged construction defects causing both property damage and economic loss. After filing the operative Complaint, the homeowners dismissed the SB800 cause of action and took the position that the Right to Repair Act was adopted to provide a remedy for construction defects causing only economic loss and therefore SB800 did not alter preexisting common law remedies in cases where actual property damage or personal injuries resulted. The builder maintained that SB800 and its pre-litigation procedures still applied in this case where actually property damages were alleged to have occurred.
The Supreme Court found that the text and legislative history reflect a clear and unequivocal intent to supplant common law negligence and strict product liability actions with a statutory claim under the Right to Repair Act. Specifically the text reveals “…an intent to create not merely
a remedy for construction defects but
the remedy.” Additionally certain clauses set forth in SB800 “…evinces a clear intent to displace, in whole or in part, existing remedies for construction defects.” Not surprisingly, the Court confirmed that personal injury damages are expressly not recoverable under SB800, which actually assisted the Court in analyzing the intent of the statutory scheme. The Right to Repair Act provides that construction defect claims not involving personal injury will be treated the same procedurally going forward whether or not the underlying defects gave rise to any property damage.
The Supreme Court further found that the legislative history of SB800 confirms that displacement of parts of the existing remedial scheme was “…no accident, but rather a considered choice to reform construction defect litigation.” Further emphasizing how the legislative history confirms what the statutory text reflects, the Supreme Court offered the following summary: “the Act was designed as a broad reform package that would substantially change existing law by displacing some common law claims and substituting in their stead a statutory cause of action with a mandatory pre-litigation process.” As a result, the Supreme Court ordered that the builder is entitled to a stay and the homeowners are required to comply with the pre-litigation procedures set forth in the Right to Repair Act before their lawsuit may proceed.
The seminal ruling by the California Supreme Court shows great deference to California Legislature and the “major stakeholders on all sides of construction defect litigation” who participated in developing SB800. A significant win for builders across the Golden State, homeowners unequivocally must proceed via SB800 for all construction defect claims arising out of new residential construction sold on or after January 1, 2003. We invite you to contact us should you have any questions.
Reprinted courtesy of Chapman Glucksman Dean Roeb & Barger attorneys
Richard Glucksman,
Glenn Barger,
Jon Turigliatto and
David Napper
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com
Mr. Barger may be contacted at gbarger@cgdrblaw.com
Mr. Turgliatto may be contacted at jturigliatto@cgdrblaw.com
Mr. Napper may be contacted at dnapper@cgdrblaw.com
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Return-to-Workplace Checklist: Considerations and Emerging Best Practices for Employers
July 20, 2020 —
Nancy Conrad & George C. Morrison - White and Williams LLPAs employers plan to return employees to the workplace, they should proceed with careful planning and incorporate best practices and measures to assure a safe, responsible and productive workplace. While there is no "one size fits all" plan, the following checklist will assist in assuring that your work environment includes the key safety components to return to the workplace in the midst of a pandemic.
PREPARING THE WORKPLACE FOR RETURN & GENERAL HEALTH AND SAFETY
- Create a company task force, safety committee or coordinator to oversee implementation of policies that address and enforce practices related to COVID-19.
- Ensure HVAC systems are functional, have been properly cleaned and serviced and tuned to maximize airflow and filtration.
- Review and increase cleaning protocols in coordination with lease terms and cleaning contracts. Ensure regular and thorough office cleanings, with a focus on high-touch surfaces and areas. Document cleaning protocols and schedule.
- Implement social distancing requirements and provide visual markers on floors in compliance with applicable federal, state and local orders.
- Rearrange work spaces, conference rooms and lunchrooms to comply with social distancing requirements.
- Post notices about the number of individuals permitted in elevators, stairwells, rooms and on the premises.
- Restrict movement between departments and floors.
Reprinted courtesy of
Nancy Conrad, White and Williams LLP and
George C. Morrison, White and Williams LLP
Ms. Conrad may be contacted at conradn@whiteandwilliams.com
Mr. Morrison may be contacted at morrisong@whiteandwilliams.com
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UCF Sues Architects and Contractors Over Stadium Construction Defects
October 19, 2017 —
David Suggs – Bert L. Howe & Associates, Inc.The University of Central Florida (UCF) filed suit over alleged construction defects of their 45,000-seat arena including the claim of “premature wear of the steel,” spokesman Chad Binette stated, according to the Orlando Sentinel.
Bid documents suggest that rust may be an issue. UCF recently sought contractors for “Stadium Emergency Rust Repairs.” The Orlando Sentinel reported that the university stated “the word ‘emergency’ reflects deadlines for the football season instead of safety concerns.” Other documents also claimed ongoing rust remediation.
The UCF stadium had earned the nickname “Bounce House” from the arena “subtly swaying as fans jumped together to the song ‘Kernkraft 400’ by Zombie Nation. UCF spent hundreds of thousands of dollars in 2008 stiffening the underpinnings of the stadium by bolting additional steel to about 160 beams,” according to the Orlando Sentinel. Officials claim that the stadium was never unsafe.
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