COLUMBUS OHIO BUILDING EXPERT
DIRECTORY AND CAPABILITIES

San Francisco Office Secures Defense Verdict in Legal Malpractice Action

November 25, 2024 — Lewis Brisbois Newsroom
San Francisco, Calif. (October 31, 2024) - After a ten-day jury trial in San Francisco Superior Court, Partner Alex Graft recently secured a defense verdict in a legal malpractice action arising out of underlying litigation with the claimants’ homeowners association. The claimants alleged his client attorneys negligently advised them that the terms of the settlement agreement would result in the creation of a so-called independent board of directors for the homeowners association. It did not come to fruition. After the attorneys withdrew, they sued for their outstanding fees, which elicited a cross-complaint alleging malpractice, breach of fiduciary duty, breach of contract and negligent misrepresentation. Read the court decision
Read the full story...
Reprinted courtesy of Lewis Brisbois

---

Specific Source of Water Not Relevant in Construction Defect Claim

June 28, 2013 — CDJ STAFF
The 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.” Read the court decision
Read the full story...
Reprinted courtesy of

---

The Fourth Circuit Applies a Consequential Damages Exclusionary Clause and the Economic Loss Doctrine to Bar Claims by a Subrogating Insurer Seeking to Recover Over $19 Million in Damages

February 23, 2016 — William L. Doerler – White and Williams LLP
In Severn Peanut Company, Inc. v. Industrial Fumigant Company, 807 F.3d 88 (4th Cir. (N.C.) 2015), the United States Court of Appeals for the Fourth Circuit (Fourth Circuit), applying North Carolina law, considered whether a consequential damages clause in a contract between the Severn Peanut Company, Inc. (Severn) and Industrial Fumigant Company (IFC) barred Severn and its subrogating insurer, Travelers Property Casualty Company of America (Travelers), from recovering over $19 million in damages that Severn suffered as the result of a fire and explosion at its Severn, North Carolina plant. The Fourth Circuit, rejecting Severn’s unconscionability and public policy arguments related to the consequential damages clause and finding that the economic loss doctrine barred Severn from pursuing negligence claims, affirmed the trial court’s judgment granting summary judgment in IFC’s favor. As noted in the Severn decision, the facts showed that Severn and IFC signed a Pesticide Application Agreement (PAA) requiring IFC to use phosphine, a pesticide, to fumigate Severn’s peanut storage dome and to apply the pesticide “in a manner consistent with instructions . . . and precautions set forth in [its] labeling.” With respect to damages, the PAA specified that IFC’s charge for its services, $8,604 plus applicable sales tax, was “based solely upon the value of the services provided” and was not “related to the value of [Severn’s] premises or the contents therein.” In addition, the PAA specified that the $8,604 sum to which the parties agreed was not “sufficient to warrant IFC assuming any risk of incidental or consequential damages” to Severn’s “property, product, equipment, downtime, or loss of business.” Read the court decision
Read the full story...
Reprinted courtesy of William L. Doerler, White and Williams LLP
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

---

Congratulations to Woodland Hills Partner Patrick Au and Senior Associate Ava Vahdat on Their Successful Motion for Summary Judgment!

February 14, 2023 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Congratulations to Woodland Hills Partner Patrick Au and Senior Associate Ava Vahdat on their successful Motion for Summary Judgment in Los Angeles Superior Court! BWB&O’s client was a concrete contractor hired by a government entity for a limited sidewalk repair project many years ago. The Plaintiff, who was confined to a wheelchair, filed suit against BWB&O’s client alleging Negligence and Premises Liability after an alleged fall injury on a public sidewalk. Plaintiff’s primary alleged theory of liability against BWB&O’s client was that it either worked on or was supposed to work on that subject sidewalk and in doing so, or failure to do so, caused Plaintiff’s fall and subsequent alleged injuries/damages. Plaintiff claimed in excess of $1 million in damages. After extensive discovery, Mr. Au and Ms. Vahdat gathered enough evidence to prove that BWB&O’s client neither worked on the subject area nor was required to do so. Accordingly, they prepared a successful Motion for Summary Judgment on the basis that no duty was owed to Plaintiff thereby refuting the negligence cause of action. The dispositive motion also proved that the subject sidewalk was not owned, controlled, or maintained by BWB&O’s client thereby negating the premises liability cause of action. Read the court decision
Read the full story...
Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

---

Another Reason to Always Respond (or Hensel Phelps Wins One!)

September 16, 2019 — Christopher G. Hill - Construction Law Musings
Here at Construction Law Musings, Hensel Phelps Construction Co. is best known as the company that got whipsawed between indemnity rules and the lack of a statute of limitations for state agencies. However a recent case out of the Federal District Court for the Eastern District of Virginia gave them a win and illustrates, once again, that failing to appear or respond is never a good option. In Hensel Phelps Construction Co. v. Perdomo Industrial LLC, the Alexandria, VA federal court looked at an arbitration award entered for Hensel Phelps and against Perdomo under the Federal Arbitration Act. The facts of the case showed that Perdomo “double dipped” into the deep end of refusal or failure to respond. First of all, the contract required arbitration and any award was enforceable in any state or federal court having jurisdiction. Based upon this language, Hensel Phelps filed a demand for arbitration with the American Arbitration Association against Perdomo and its surety, AAA sent notice to both Perdomo and Surety, and. . . neither responded or appeared at what was ultimately 8 days of hearings. After hearing Hensel Phelp’s evidence and the total lack of defenses from Perdomo and Surety, the panel issued an award in favor of Hensel Phelps, finding Perdomo LLC in default and holding Perdomo LLC and Allied World jointly and severally liable in the amount of $2,958,209.71 and Perdomo LLC individually liable in the amount of $7,917,666.30 plus interest. Read the court decision
Read the full story...
Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

---

No Additional Insured Coverage Under Umbrella Policy

March 12, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The additional insured was not covered under a property policy for an injury occurring after work was completed. Lewark v. Davis Door Servs., 2014 Wash. App. LEXIS 341 (Wash. Ct. App. Feb. 10, 2014). Public Storage, Inc. hired Davis Door Service Inc. to perform work at its facilities. The master agreement required Davis Door to maintain a CGL policy that insured Public Storage "during the entire progress of the work." Davis Door secured a CGL policy with American Economy. It also took out an umbrella liability policy with American States. After Davis Door completed work on a door, Terrie Lewark injury her back opening the door. She sued Public Storage and Davis Door. Lewar and Public Storage settled. Public Storage assigned to Lewark its rights under the umbrella policy with American States. Lewark then sued Davis Door and American States. The trial court found that Public Storage was not an additional insured under the American States umbrella policy. Read the court decision
Read the full story...
Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

---

Fire Tests Inspire More Robust Timber Product Standard

March 22, 2018 — Nadine M. Post– ENR
Based on recent fire test results, mass timber groups have adjusted product certification standards to require the use of cross-laminated timber with structural adhesives tested to demonstrate better fire performance. Read the court decision
Read the full story...
Reprinted courtesy of Nadine M. Post, Engineering News-Record
Ms. Post may be contacted at postn@enr.com

---

Coverage Under Builder's Risk Policy Properly Excluded for Damage to Existing Structure Only

April 05, 2017 — Tred R. Eyerly – Insurance Law Hawaii
The Tenth Circuit affirmed the District Court's determination that there was no coverage under the builder's risk policy. Gerald H. Phipps, Inc. v. Travelers Prop. Cas. Co. of Am., 2016 U.S. App. LEXIS 2764 (10th Cir. Feb. 16, 2017). GH Phipps Construction Company (GHP) was hired to renovate and expand the University of Denver's library. GHP was completing installation of a new roof on the library when water from melting snow leaked into the building. The water damaged existing drywall and insulation in the stairwells and elevator shafts that GHP planned to preserve and update. Before the snow melt mishap, GHP had completed some preliminary work in the damaged areas to designate locations for future installation of mechanical, plumbing and electrical systems. But GHP had not yet installed any new materials, updated any lighting fixtures, or patched and painted any existing drywall in the damaged areas. Read the court decision
Read the full story...
Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

---