Insurer Must Defend Claims of Negligence and Private Nuisance
July 10, 2018 —
Tred R. Eyerly - Insurance Law HawaiiThe court determined there was a duty to defend negligence and private nuisance claims for dumping materials on the plaintiffs' property. Peters Heavy Construction, Inc. v. X-Pert One Tracking Corp., 2018 Wisc. App. LEXIS 358 (Wis. Ct. App. March 29, 2018).
Peters Heavy Construction sued X-Pert One for negligently depositing shingle materials, tires, and other solid materials on Peters' property, causing damage to Peters, including loss of use of portions of the property. Peters also alleged that X-Pert One's actions negligently created a private nuisance causing harm to Peters' property. X-Pert One's insurer, Northfield Insurance Company, was also sued.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
California Court of Appeal Makes Short Work Trial Court Order Preventing Party From Supplementing Experts
August 06, 2019 —
Garret Murai - California Construction Law BlogYears ago I recommended to a client that we hire a construction defect expert in a case. The client, a thrifty fellow, responded, “But I thought you were the construction expert. Why do I need to hire another expert? A fair question and one that caught me flat footed.
Whether I’m an “expert” or not can be debated, but I explained to the client that while I was an attorney whose practice focused on construction law, I was not someone who he would want to take the stand and testify about the engineering design and seismic stability of pilings. For that, he needed an expert.
In construction litigation it’s not uncommon for parties and their attorneys to hire “experts.” There are even special rules set forth in the California Code of Civil Procedure for disclosing, supplementing and deposing experts, which basically provide as follows:
1. Demand for Exchange of Expert Information: After the court sets a trial date in a case, any party may demand that each party exchange information concerning the experts they intend to have testify at trial;
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Garret Murai, Wendel, Rosen, Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Parks and Degradation: The Mess at Yosemite
September 09, 2024 —
Laura Bliss - BloombergA couple of miles past the western entrance to Yosemite National Park, visitors pass from California into a postcard. The road opens to a majestic view of
Half Dome, El Capitan and Cathedral Rocks—celebrity peaks if ever there were—which form the towering walls of Yosemite Valley. On the pine-scented floor of John Muir’s mountain mansion, the Merced River flows gently by the side of the road as signs point toward trailheads and tourist destinations. Not far from
Curry Village, a cluster of tent cabins and eateries at the eastern end of the road, is a section of employee housing known as the Stables. It was there that Erin Rau found herself wrapped in a sleeping bag one broiling afternoon last summer, wondering whether she was about to die.
Rau was a little over a month into a seasonal job selling goods in the village’s general store. Almost as soon as she arrived from Michigan, she recalls, she got the sense this wouldn’t be the carefree, post-college summer gig she’d imagined. In the evenings, she was left alone to manage a bunch of fellow early-twentysomethings making the same sixteenish bucks an hour until the shop closed at 10. At night a family of ringtail possums would crawl down from the rafters to tear into a display of baked goods, a long-standing issue she says her bosses did nothing to resolve, apart from throwing away half-eaten muffins in the morning. Similarly, deer mice kept leaving droppings on the pillows and sheets in the cabin Rau shared with three other women. When one of her roommates complained, she says, management supplied a Ziploc with a couple of mouse traps, a mask, gloves and some hand wipes, leaving the employees to sort out the rest.
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Laura Bliss, Bloomberg
Thank You for 17 Years of Legal Elite in Construction Law
December 16, 2023 —
Christopher G. Hill - Construction Law MusingsThank you once again to those in the Virginia legal community who elected me to the Virginia Business Legal Elite in the Construction Law category for the 17th consecutive year. The 17 consecutive years of election to the Legal Elite in the Construction Category span my entire close to 14 years as a solo construction attorney. The fact that you all have continued to elect “100%” of the lawyers at The Law Office of Christopher G. Hill, PC for the last 13 years is most gratifying and only confirms that my decision to “go solo” over 13 years ago was a good one. To be included in this list of top construction attorneys is both humbling and gratifying. For the complete list of the Virginia construction lawyers who were elected along with me, see the 2023 Virginia Business Legal Elite in Construction Law.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Daily Construction Reports: Don’t Leave the Job Without Them
January 11, 2022 —
Patrick Barthet - Construction ExecutiveTrying to remember exactly what was done at a job site last week, last month or last quarter along with knowing who worked at the site is nearly impossible without a written, video or electronic record for reference. That’s why daily construction reports are so important.
Yet many contractors fail to create these reports. And those that do create them, may do it only at the beginning of a project or sporadically throughout the progress of a job, and generally only when they are reminded to do so. Daily reports only become truly effective when they are, in fact, done daily. Whether it is to help resolve a pending delay issue or clarify a job site access claim, or any number of other matters where what happened at the time is so critical, those daily construction reports should be completed daily.
Be Timely
The reason that daily reports are admissible in court (with corroborating testimony) is that they are interpreted as being recorded at or about the time the events in question occurred. Field managers should, therefore, write up these reports daily while the work is occurring or very soon thereafter to capture as accurate an account as possible. If these reports are not created until the end of the week or month, the information will not be as accurate and may not be as helpful in supporting a particular position.
Reprinted courtesy of
Patrick Barthet, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Barthet may be contacted at
pbarthet@barthet.com
SB800 CONFIRMED AS EXCLUSIVE REMEDY FOR CONSTRUCTION DEFECT CLAIMS
January 24, 2018 —
Jeffrey Brower and Nathan Owens - Newmeyer & Dillion, LLPIn
McMillin Albany LLC v. Superior Court (Cal. Ct. App., Aug. 26, 2015) 2015 Daily Journal D.A.R. 9931 (“
McMillin”), the Fifth Appellate District Court of Appeal in California published a resounding win for builders, general contractors, and others entities seeking the protections of the Right to Repair Act, Civil Code sections 895, et seq. (“SB800”). The
McMillin Court firmly rejected the reasoning and outcome of both
Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98 (“
Liberty Mutual”) and
Burch v. Superior Court (2014) 223 Cal.App.4th 1411 (“
Burch”), and held that:
the Legislature intended that all claims arising out of defects in residential construction, involving new residences sold on or after January 1, 2003 (§ 938), be subject to the standards and the requirements of the Act; the homeowner bringing such a claim must give notice to the builder and engage in the prelitigation procedures in accordance with the provisions of Chapter 4 of the Act prior to filing suit in court.
(
McMillin, Opinion, p. 15.) The
McMillin Court further held that even if the claimant’s counsel intentionally pleads around SB800 by asserting only tort causes of action, SB800 still applies to all defect claims and a stay of the action to require SB800 compliance is appropriate.
Newmeyer & Dillion has strongly supported builders’ efforts to enforce the Right to Repair Act since its inception. The firm filed an amicus brief in
McMillin on behalf of Leading Builders of America (“LBA”), an association of the leading residential homebuilders in the United States. For years, LBA members developed their warranty and dispute resolution procedures according to the Right to Repair Act and performed prelitigation repairs to the satisfaction of thousands of homeowners.
Liberty Mutual and
Burch undermined the Right to Repair Act by allowing plaintiffs’ attorneys to circumvent the prelitigation procedures to the detriment of homeowners and builders, resulting in confusion and increased litigation. The
McMillin decision breathes new life into the Right to Repair Act and sets the stage for future review by the California Supreme Court.
The
McMillin Court focused on the express language of the Right to Repair Act to arrive at its conclusion that Civil Code sections 896, 897, 943 and 944 demonstrate a clear Legislative intent to occupy the field of construction defect litigation – a belief held by nearly all in the construction industry and the California Superior Courts before
Liberty Mutual. The
McMillin Court found further support for SB800’s comprehensive nature in the Legislative history, which consistently described the Act as “groundbreaking reform” and a “major change” in construction defect litigation, designed to “significantly reduce the cost of construction defect litigation and make housing more affordable.” (
McMillin, Opinion, pp. 18-19.) The
McMillin Court found it inescapable that the Right to Repair Act exclusively governs construction defect litigation involving homes sold on or after January 1, 2003.
The
McMillin, decision will have a significant impact on construction litigation moving forward in two respects. First,
McMillin, is the only appellate decision to date to address whether a builder has the right to enforce SB800 when the claimant’s counsel deliberately attempts to plead around SB800 by asserting only tort claims. Second, the decision provides trial courts with the authority and precedent to ensure compliance with the Right to Repair Act. Trial courts may also find it necessary to revisit prior rulings against builders that relied on
Liberty Mutual.
Newmeyer & Dillion will continue to advocate in support of builders and general contractors by working vigorously to gain further support for the
McMillin, decision and setting the stage for review by the California Supreme Court.
Jeffrey R. Brower is an associate at the Newport Beach office of Newmeyer & Dillion, LLP. His practice focuses on business and construction litigation. Jeffrey can be reached at jeffrey.brower@ndlf.com.
Nathan Owens is the managing partner of the Las Vegas office for Newmeyer & Dillion, LLP. He represents businesses and individuals operating in a wide array of economic sectors including real estate, construction, insurance and health care in all stages of litigation in state and federal court. Nathan can be reached at nathan.owens@ndlf.com.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit
www.ndlf.com
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Colorado Requires Builders to Accommodate High-Efficiency Devices in New Homes
December 14, 2020 —
David M. McLain – Colorado Construction LitigationStarting in 2009, the Colorado Legislature began adding requirements that builders offer certain options to accommodate high-efficiency devices. These requirements started with solar prewire options in 2009, then water-smart home options in 2010. In 2020, the Legislature added requirements for electric vehicle charging and heating systems. These sections apply to unoccupied homes serving as sales inventory or a model home or manufactured homes, as defined by Colorado law. While the Legislature has only required builders to include options to accommodate these devices, it may be just a matter of time until builders must install the prescribed devices themselves.
In 2009, the Legislature passed C.R.S. 38-35.7-106, which was amended this year by HB 20-1155. As it now reads, Colorado law requires every builder of single-family detached residences to offer to have the home’s electrical or plumbing system, or both, include:
- A residential photovoltaic solar generation system or a residential thermal system, or both;
- Upgrades of wiring or plumbing, or both, planned by the builder to accommodate future installation of such systems; and
- A chase or conduit, or both, constructed to allow ease of future installation of the necessary wiring or plumbing for such systems.
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David McLain, Higgins, Hopkins, McLain & RoswellMr. McLain may be contacted at
mclain@hhmrlaw.com
In a Win for Property Owners California Court Expands and Clarifies Privette Doctrine
March 28, 2018 —
Garret Murai – California Construction Law BlogWe’ve written before about the
Privette doctrine, which
generally holds that a higher-tiered party is not liable for injuries sustained by employees of a lower-tiered party under the peculiar risk doctrine,
here,
here,
here and
here. We’ve also talked about some of the
exceptions to the
Privette doctrine, including the non-delegable duty doctrine and the negligent exercise of retained control doctrine, which provide that a hirer cannot rely on the
Privette doctrine if it owed a non-delegable duty to an employee of an independent contractor or if it retained control over the work of an employee of an independent contractor and negligently exercised that control in a manner that affirmatively contributes to injuries to that employee.
In the next case,
Delgadillo v. Television Center, Inc., Second District Court of Appeals, Case No. B270985 (February 2, 2018), the Court examined whether a property owner could be held liable under the non-delegable duty doctrine and negligent exercise of retained control doctrine for failing to provide structural anchor bolts on its buildings which led to the death of an employee of window washing company.
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Garret Murai, Wendel, Rose, Black, & Dean, LLPMr. Murai may be contacted at
gmurai@wendel.com
