A Downside of Associational Standing - HOA's Claims Against Subcontractors Barred by Statute of Limitations
March 28, 2012 —
Bret Cogdill, Colorado Construction LitigationIn multi-family construction defect litigation in Colorado, homeowners associations rely on associational standing to pursue claims affecting more than two units and to bring claims covering an entire development. This practice broadens an association’s case beyond what individual, aggrieved owners would otherwise bring on their own against a developer or builder-vendor. However, reliance on associational standing to combine homeowners’ defect claims into a single lawsuit has its drawbacks to homeowners.
A recent order in the case Villa Mirage Condominium Owners’ Association, Inc., v. Stetson 162, LLC, et al., in El Paso County District Court, presents an example. There, the HOA unsuccessfully sought a determination from the court that its claims against subcontractors were not barred by the statute of limitations. To do so, the HOAs attempted to apply the Colorado Common Interest Ownership Act (“CCIOA”), which governs the creation and operation of HOAs, and a statute intended to apply to persons under a legal disability.
Under CCIOA, during the period of “declarant control” the developer may appoint members to the association’s executive board until sufficient homeowners have moved into the development and taken seats on the board.
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Reprinted courtesy of Bret Cogdill of Higgins, Hopkins, McClain & Roswell, LLC. Mr. Cogdill can be contacted at cogdill@hhmrlaw.com.
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When Is Mandatory Arbitration Not Mandatory?
August 19, 2015 —
Christopher G. Hill – Construction Law MusingsI have discussed my views on mandatory mediation in construction contracts at other places here at Musings and also discussed how the contract is king here in Virginia. A recent Charlottesville, Virginia Circuit Court case combined these two concepts to allow a subcontractor to proceed straight to litigation despite various ADR provisions in the contract between it and the general contractor.
In ProBuild v. DPR & Continental Casualty, the Court looked at a series of ADR steps that were to be followed in the contract between the parties in order to allow DPR, the general contractor to require arbitration as opposed to litigation. The Court considered the surety’s motion to stay the litigation against it pending arbitration between ProBuild and DPR.
In ProBuild, the Court looked at a contractual provision that provided certain steps to be followed in the event of a dispute, starting with a notice of dispute, followed by negotiation, followed by mediation should the disputing party request it, and in the event that mediation was tried and failed, the disputing party or general contractor could require arbitration. The Court determined that ProBuild, the subcontractor, was the disputing party under the contract, had pursued unsuccessful formal negotiations and that neither ProBuild nor DPR requested mediation. The Court then held that because unsuccessful mediation was a prerequisite to required arbitration and because mediation was never pursued, the mandatory arbitration clause did not apply.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Court Finds Duty To Defend Environmental Claim, But Defense Limited to $100,000
August 14, 2023 —
Tred R. Eyerly - Insurance Law HawaiiWhile agreeing with the insured there was a duty to defend, the court determined the defense of an environmental claims was limited to $100,000. Casa Nido Partnership v. JAE Kwon, 2023 U.S. Dist. LEXIS 97701 (N.D. Calif. June 5, 2023).
In 1976, Casa Nido purchased the property and remains the current owner to this day. Catherine O'Hanks owned and operated a dry-cleaning facility at the property from 1960 to 1992.
In August 2016, Casa Nido learned of Tetrachloroethylene (PCE) subsurface contamination. Casa Nido stipulated that it did not know, nor had any reason to know, before 2016, of the existence of the subsurface contamination. Casa Nido alleged that due to equipment malfunction or improper usage, there were sudden and accidental spills and equipment overflows of PCE during the 32-year period that defendant O'Hanks operated the dry-cleaning business on the property. Casa Nido spent hundreds of thousands of dollars remediating the environmental damage.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Boston Building Boom Seems Sustainable
November 20, 2013 —
CDJ STAFFAccording to the analytics and advisory firm PPR, the Boston-area market is “ungodly tight.” So even with all the building planned for the area, it’s likely to make the market normal and not lead to a glut. PPR predicts that the building boom may cool off in 2016, with the next mayoral administration.
Some of the condo real estate has been fetching multi-million prices. Sue Hawkes, president and CEO of The Collaborative Cos. Points out that there are about 1,500 units in Boston priced in excess of $2 million. She wonders about future buyers in the luxury market. “Where are all these people going to come from?”
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Insurers Reacting to Massachusetts Tornadoes
August 11, 2011 —
CDJ STAFFThe Patriot-Ledger reports that insurers could pay out as much as $200 million to cover homes damaged or destroyed in the tornadoes that hit central and southern Massachusetts in June, 2011. Joseph Murphy, Commissioner of the State Division of Insurance didn?t foresee problems with insurers covering these claims. “At this point, there doesn’t seem to be any one company overexposed in that area,” he told the Patriot-Ledger.
Insurance executives did not think the tornadoes would cause them to raise rates. Steve Chevalier, CEO of NLC Companies, said, “it’s a major event for those impacted by it, but it’s not close to a financial hit to us.”
One insurer noted that the winter weather generated more claims; however the cumulative value of those claims was $15 million.
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City of Birmingham Countersues Contractor for Incomplete Work
March 12, 2014 —
Beverley BevenFlorez-CDJ STAFFBack in December of 2013, WVTM News reported that Chris Woods, a contractor, filed a lawsuit against the City of Birmingham, Alabama, demanding $1.5 million for the West Police Precinct and two other projects he had been contracted on. However, “Birmingham claimed Woods was fired for not completing projects on time and other contract breaches.”
On March 7th, WVTM News reported that the City of Birmingham has filed a counterclaim against Woods, alleging that he “owes $1.2 million for incomplete work.” The city listed his “inability to meet specific construction deadlines and finish either project on time as factors for his termination.” Woods, however, blamed the city for delays, citing multiple design changes requested by Birmingham.
The city’s counterclaim also alleged that “Star Insurance Company, ‘identified major, numerous defects in the work that Woods had performed prior to the termination of the West Precinct Project.’”
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Orange County Team Obtains Unanimous Defense Verdict in Case Involving Failed Real Estate Transaction
March 25, 2024 —
Lewis Brisbois NewsroomOrange County, Calif. (March 4, 2024) - Orange County Partners Esther P. Holm and Alexandra Anast obtained a unanimous defense verdict in a real estate matter involving a failed real estate transaction. The property at issue, which was located in the West Hollywood Hills and had beautiful views, was undergoing extensive remodeling. There were several bids for its purchase. Ultimately, the plaintiff, a real estate investor, was awarded the purchase.
The plaintiff and the seller entered into a real estate purchase agreement, but the plaintiff failed to release the physical contingencies within the 17-day period prescribed by the contract. Instead, the plaintiff demanded a reduction in price, which the seller rejected. The plaintiff then filed a lis pendens on the property, clouding the title and making it impossible for the sellers to sell the property to anyone else. The buyer and seller subsequently engaged counsel. The plaintiff filed the lawsuit against the seller as well as the real estate company and its agents. Prior to trial, the plaintiff and the seller reached a settlement.
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Lewis Brisbois
Three-Year Delay Not “Prompt Notice,” But Insurer Not “Appreciably Prejudiced” Either, New Jersey Court Holds
November 04, 2019 —
Anthony L. Miscioscia and Timothy A. Carroll - White and Williams LLPIn Harleysville Preferred Insurance Company v. East Coast Painting & Maintenance, LLC, 2019 U.S. Dist. LEXIS 135295 (D.N.J. Aug. 12, 2019) (East Coast Painting), the U.S. District Court for the District of New Jersey held that an insurer, which received notice of a bodily injury accident three years after it happened, was not “appreciably prejudiced” by such late notice, even as the court acknowledged notice three years later did not satisfy the policy’s “prompt notice” condition. The court also held that the policy’s “Operational Exclusion,” which excluded coverage for bodily injury arising out of the operation of “cherry pickers and similar devices,” did not apply because the accident arose out of the use of a “scissor lift,” which is not a device similar to a cherry picker.
East Coast Painting arose out of a Queens, New York bridge-painting project, during which an employee of the insured, East Coast Painting and Maintenance LLC was injured while “standing on a scissor lift mounted to the back of a truck,” owned and operated by East Coast. The employee sued various project-related entities which, in turn, joined East Coast as a defendant. East Coast sought coverage under its business auto policy, and the insurer agreed to defend the insured under a reservation of rights. The insurer subsequently sought a declaration that it did not owe coverage based on, among other things, the policy’s “Operational Exclusion,” and the insured’s failure to satisfy the policy’s “prompt notice” condition. The insurer moved for summary judgment on both of those bases, but the court in East Coast Painting denied the motion.
As for the insurer’s “prompt notice” defense, the court in East Coast Painting concluded that, the insured’s notice to the insurer was not prompt because it did not receive notice until three years after the accident. But, the court added, the inquiry does not end there. “[T]his Court must determine whether [the insurer] was appreciably prejudiced by that delay.” Reviewing the facts, the court held that the insurer was not “appreciably prejudiced,” even though during the three-year delay the lift truck was “not properly maintained” or “in the same condition it was at the time of the Accident.” The court observed that the insurer had “ample other evidence with which it can defend itself,” such as experts who inspected the lift truck and opined about the cause of the accident.” [Emphasis added.] Further, “there are multiple contemporaneous accident reports,” “a list of the East Coast employees on site at the time,” “photographs of the lift truck and its location when [the employee] was injured,” and “depositions of [the employee] and others regarding the events at issue.” Thus, the court held, the insurer was not prejudiced and summary judgment was inappropriate.
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Anthony L. Miscioscia, White and Williams LLP and
Timothy A. Carroll, White and Williams LLP
Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com
Mr. Carroll may be contacted at carrollt@whiteandwilliams.com
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