Taylor Morrison v. Terracon and the Homeowner Protection Act of 2007
June 11, 2014 —
Buck Mann – Colorado Construction LitigationOn January 30, 2014, the Colorado Court of Appeals decided the case of Taylor Morrison of Colorado, Inc. v. Bemas Construction, Inc. and Terracon Consultants, Inc. 2014WL323490. The case addressed a substantial issue of Colorado constitutional law, as well as a variety of procedural issues of potential importance to construction litigation attorneys. Of particular interest is the question of whether the provisions of the 2007 Homeowner Protection Act (“HPA”) are limited in application to contracts between residential homeowners and construction professionals, or whether they have broader application between commercial construction professional parties as well. As discussed below, the Court of Appeals stated that it would not answer the question, and then, separately, implied that the statute might only apply to homeowner transactions – with the resulting exclusion of commercial transactions. However, after its analysis, it left the actual decision of that issue to a future court in a later case.
The factual background for the case involved claims of breach of a contract for soils engineering by Terracon Consultants, Inc. (“Terracon”) and negligent excavation work by Bemas Construction, Inc. (“Bemas”). Plaintiff was Taylor Morrison of Colorado (“Taylor Morrison”), the developer and general contractor for a residential subdivision called Homestead Hills. After it constructed many homes, Taylor Morrison began to receive complaints of cracking drywall resulting from foundation movement and it made repairs at significant expense. Taylor Morrison then filed suit against Terracon and Bemas in connection with their respective roles in the original construction.
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Buck Mann, Higgins, Hopkins, McLain & Roswell, LLCMr. Mann may be contacted at
mann@hhmrlaw.com
Want More Transit (and Federal Funding)? Build Housing That Supports It
January 08, 2024 —
M. Nolan Gray - BloombergAfter
decades of planning (and $2.1 billion spent), Los Angeles’ newest light rail line opened in October 2022. Joined by geeky rail obsessives and chaperoned children, I rode the K Line on opening day. A blend of underground, elevated and at-grade track, it’s a route only a politician could love. Stations were lavished with public art, and when the train wasn’t stuck in traffic, it glided through the sprawl.
Yet one year later, it is Los Angeles’ least-used line, averaging
just over 2,000 riders on an average weekday this fall.
It isn’t hard to see why: The line begins at a vacant patch in Crenshaw and ends in a low-slung industrial park about six miles away, lined by strip malls the entire way. Walk one block east or west from any given station, and you’ll find yourself amid single-story postwar bungalows on 7,500-square-foot lots — all illegal to redevelop into apartments, thanks to local zoning. The Hyde Park Station deposits riders into a cluster of gas stations and drive-thru fast-food joints.
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M. Nolan Gray, Bloomberg
Gut Feeling Does Not Disqualify Expert Opinion
July 06, 2011 —
CDJ STAFFThe New Jersey Supreme Court issued a ruling in June on the case of Nevins v. Toll in which they reversed an earlier decision and remanded the case to a lower court for retrial. At issue in the case was the testimony of the plaintiff’s expert, J. Anthony Dowling. In depositions, Mr. Dowling said that his estimates for repair were based on a “gut feeling.” Dowling said he had “very little” experience in cost estimates for single-family homes. The defendants sought to bar Dowling’s testimony which was granted by the judge. Without an expert, Ms. Nevin’s case was dismissed.
Describing Dowling’s report as “far from a model of how an expert’s opinion in a construction case should be presented,” the court noted that Dowling is not a professional expert witness. However, the court did note that Dowling is a professional cost estimator. Despite Mr. Dowling using his “gut feeling” to construct his estimate, the New Jersey Supreme Court felt that whether his estimate is convincing is “a question for the jury.”
Read the court’s opinion…
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Fraud, the VCPA and Construction Contracts
November 26, 2014 —
Christopher G. Hill – Construction Law MusingsI’ve discussed the economic loss rule here at Musings on several occasions. The economic loss rule basically states that where one party assumes a duty based in contract or agreement, the Virginia courts will not allow a claim for breach of that duty to go forward as anything but a contract claim. This doctrine makes fraud claims nearly, though not absolutely, impossible to maintain in a construction context. In a majority of instances, fraud and construction contracts are very much like oil and water, leaving parties to fight it out over the terms of a particular contract despite actions by one party or the other that non-lawyers would clearly see as fraud.
However, a recent case decided by the Virginia Supreme Court gives at least some hope to those who are seemingly fooled into entering a contract that they would not other wise have entered into. In Philip Abi-Najm, et. al, v Concord Condominium, LLC, several condominium purchasers sued Concord under for breach of contract, breach of the Virginia Consumer Protection Act (VCPA) and for fraud in the inducement based upon flooring that Concord installed that was far from the quality stated in the purchase contract. Based upon these facts, the Court looked at two questions: 1. Did a statement in the contract between Concord and the condo buyers create a situation in which the merger doctrine barred the breach of contract claim, and 2. Did the economic loss rule bar the VCPA and fraud claims?
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
New Jersey Supreme Court Hears Insurers’ Bid to Overturn a $400M Decision
January 25, 2021 —
Lawrence J. Bracken II, Michael S. Levine & Daniel Hentschel - Hunton Andrews KurthNew Jersey’s highest court heard arguments Monday in the appeal of a ruling that the New Jersey Transit Corp.’s (“NJ Transit”) insurers are required to insure $400 million of water damage loss caused by Hurricane Sandy.
The matter stems from an insurance claim NJ Transit made after the super storm rocked the East Coast in 2012. NJ Transit claimed over $400 million in losses as a result of damage to its tracks, bridges, tunnels and power stations. In response, its tower of property insurers took the position that a $100 million flood sublimit applied to limit NJ Transit’s recovery under its insurance tower, not the policy’s $400 million overall limits.NJ Transit filed a coverage action in state court. The trial court granted summary judgment to NJ Transit, holding that NJ Transit was entitled to full coverage of $400 million under the tower’s named windstorm coverage. The insurers appealed, again arguing that the flood sublimit applied to the claim.
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Lawrence J. Bracken II, Hunton Andrews Kurth,
Michael S. Levine, Hunton Andrews Kurth and
Daniel Hentschel, Hunton Andrews Kurth
Mr. Bracken may be contacted at lbracken@HuntonAK.com
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Hentschel may be contacted at dhentschel@HuntonAK.com
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2018 Super Lawyers and Rising Stars!
July 18, 2018 —
Wilke, Fleury, Hoffelt, Gould & Birney, LLPWilke Fleury is thrilled to announce our 2018 Super Lawyers and Rising Stars! Twelve of our talented attorneys have been honored with the Super Lawyers and Rising Stars distinctions.
Super Lawyers® is a service of the Thomson Reuters, Legal Division. Each year, the research team at Super Lawyers® undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area and a good-standing and disciplinary check. The Super Lawyers list represents only five percent of lawyers in California and Rising Stars reflects 2.5% of the state’s up-and-coming lawyers.
Congratulations to Wilke Fleury’s 2018 Super Lawyers and Rising Stars!
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Wilke, Fleury, Hoffelt, Gould & Birney, LLP
Hunton Andrews Kurth Promotes Insurance Recovery Lawyer Andrea (Andi) DeField to Partner
April 05, 2021 —
Lorelie S. Masters - Hunton Insurance Recovery BlogEffective April 1, 2021, Hunton Andrews Kurth LLP has promoted insurance recovery lawyer,
Andi DeField, and six other attorneys, to
partner. “Andi has been a superstar in our practice since the day she arrived,” said insurance recovery practice head,
Walter Andrews, adding that “Andi’s promotion reflects the incredible hard work she has contributed to the practice and outstanding results she has achieved for our clients over the years.” A native of Miami, Andi ascended through the ranks at Hunton in its Miami office, joining the firm as a contract lawyer before earning promotions to associate, counsel and, now, partner. But Andi’s rapid ascension did not come without much hard work. Since joining the firm, “Andi has, year after year, consistently knocked the cover off the ball in terms of her tireless work ethic, the superior results she has achieved and her extraordinary aptitude for marketing herself, our practice and the firms many other practices,” said insurance recovery partner,
Mike Levine. Levine added, “Andi is an amazing lawyer and a true champion for her clients. I’m proud to now call her my partner.”
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Lorelie S. Masters, Hunton Andrews KurthMs. Masters may be contacted at
lmasters@HuntonAK.com
Unintended Consequences of New Building Products and Services
April 19, 2022 —
David S. Jaffe – National Association of Home BuildersAs home builders throughout the United States are grappling with building material price surges, and shortages or delays for certain orders, many are exploring alternatives products to complete or start projects. For example, according to a recent article, some builders are constructing homes from natural materials such as rammed earth, adobe brick, and volcanic rock. In addition to being readily available on site there may be heating and cooling benefits due to the natural insulation provided by these materials. The article cautions, however, that using these alternative materials may come with added challenges such as higher costs due to a need for skilled labor, delays by home inspectors who may be unfamiliar with the techniques and methods of construction, and energy consultants who might have difficulty calculating the value of homes with these materials. See Home Builders Are Turning to Natural Materials to Get Around Supply Chain Problems; There are advantages to buying homes made with natural materials, but expect to pay a premium, Alanna Schubach, Mansion Global (March 25, 2022).
Another caution, not addressed in the article, however, but one that should be heeded by builders considering alternative materials, is the unintended consequences that might result from using alternative products, whether they are natural products or any others. The long-term effects of material use should not be ignored.
For instance, it has been reported that earthen materials are known to contain numerous organic substances and can also harbor mold. It was not too long ago that mold was a high liability issue for builders and property owners. Similarly, the use of rapidly renewable materials - products that can be produced naturally and quickly from nature - is a key component of green building. They are also cellulose or carbohydrate-based products and as such are typically optimal food sources for mold in the presence of moisture.
To avoid mold, it is important to understand the relationship between construction materials and their susceptibility to mold in the presence of moisture. “Buildings will never be designed, built, maintained, or utilized perfectly; and weather and natural disasters cannot be predicted. The one thing we can have complete control over, the materials within the building, should be selected wisely.” See Mold Susceptibility of Rapidly Renewable Building Materials Used in Wall Construction, AM Cooper, Master's thesis, Texas A&M University (2007) (Samples of wool, cork, straw, and cotton-- rapidly renewable materials used as exterior wall insulation products--were exposed to different moisture amounts in an encapsulated environment, representing the environment within a wall cavity when exposed to water from pipes, leaks, condensation and absorption, or from initial construction. The samples were monitored over time for mold growth).
Mold-related issues are just one example of the potential for unintended consequences from the use of alternative materials. Carefully reviewing building material choices in advance may help eliminate non-conforming building materials, returns and possibly disputes. NAHB has developed a guide,
Assessing Building Materials, for builders who may not have their own review process for gathering information from manufacturers and distributors when considering the selection of new building materials.
The guide is intended to arm members with the most important factor when evaluating new materials or products: information. Use the guide to step through the information collection process to make an informed decision on deploying new products or materials. The guide is not intended to be exhaustive or all-inclusive, but it will help builders ask the right questions and seek the most relevant information.
Copyright © 2022 by the National Association of Home Builders of the United States. All rights reserved.
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David S. Jaffe, NAHBMr. Jaffe may be contacted at
DJaffe@nahb.org
