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DIRECTORY AND CAPABILITIES

Florida Governor Signs Construction Defect Amendments into Law

September 17, 2015 — Beverley BevenFlorez-CDJ STAFF
According to Jeffrey Gilbert and Anaysa Gallardo Stutzman of Cozen O’Connor, Rick Scott, governor of Florida, signed HB 87 into law, which “amends the notice and opportunity to cure provisions of Chapter 558, Florida’s Construction Defect Statute.” The amendments go into effect October first. HB 87 requires “property owners to provide concrete details of the alleged defects.” Gilbert and Stutzman claimed, “Overall, these amendments seek to further the intended public policy purpose of Chapter 558, which is to provide an alternative dispute resolution mechanism and result in fewer lawsuits and lower litigation costs incurred by parties involved in construction defect matters.” Read the court decision
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Arizona Court of Appeals Awards Attorneys’ Fees in Quiet-Title Action

September 20, 2017 — Kevin Walton - Snell & Wilmer Real Estate Litigation Blog
In Arizona, a party successfully quieting title to property may recover its attorneys’ fees if it satisfies three requirements: (1) the party requests a quitclaim deed from the party adversely claiming title twenty days before bringing the quiet-title action; (2) the party tenders five dollars for the execution and delivery of the deed; and (3) the adverse party fails to comply. Ariz. Rev. Stat. § 12-1103(B). Recently, in McCleary v. Tripodi, No. 2 CA-CV 2016-0145, 2017 WL 3723472 (Ariz. Ct. App. Aug. 29, 2017), the Arizona Court of Appeals awarded attorneys’ fees to the prevailing party under this statute. In McCleary v. Tripodi, Mrs. Tripodi, who became the administrator of her husband’s estate upon his death, wrongfully recorded three deeds purporting to transfer property to herself. After unsuccessfully attempting to get Mrs. Tripodi to quitclaim the property, the plaintiffs filed a quiet-title action. The trial court agreed that the plaintiffs were the legal and rightful owners, granted summary judgment in plaintiffs’ favor, and awarded attorneys’ fees to the plaintiffs. Read the court decision
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Reprinted courtesy of Kevin Walton, Snell & Wilmer

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Traub Lieberman Elects New Partners for 2020

February 24, 2020 — Traub Lieberman
Traub Lieberman is pleased to announce that Adam P. Joffe and Heather Fleming have been elected to the partnership effective January 1, 2020. “Heather and Adam are terrific additions to our partnership and team. They are both effective, experienced and driven lawyers who work steadfastly on behalf of clients to meet their needs,” said Michael Knippen, firm chair. Adam joined the firm in 2019 and is based in the firm’s Chicago office, which now includes 10 partners. He counsels and represents insurers in complex first-party and third-party coverage litigation. Adam also advises insurers on their coverage obligations under primary and excess commercial lines policies, including commercial general liability, employment practices liability, professional liability, and commercial property policies. Read the court decision
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Reprinted courtesy of Traub Lieberman

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Part of the Whole: Idaho District Court Holds Economic Loss Rule Bars Tort Claims Related to Water Supply Line that was Part of Home Purchase

October 03, 2022 — Gus Sara - The Subrogation Strategist
In Safeco Ins. Co. of Ill. v. LSP Prods. Grp., 2022 U.S. Dist. LEXIS 139566, the United States District Court for the District of Idaho (District Court) considered whether the plaintiff’s tort claims against the manufacturer of an allegedly defective toilet water supply line were barred by the economic loss rule. The defendant filed a motion for summary judgment arguing that, since the supply line was a part of the home when the plaintiff’s insureds purchased it, the plaintiff was barred by the economic loss rule from bringing tort claims against the manufacturer. The District Court granted the defendant’s summary judgment motion, ruling that the supply line was a part of the home, which was the subject of the transaction, at the time it was purchased. Thus, the District Court held that the economic loss rule barred the plaintiff’s tort claims. In 2012, Melissa Norris and Richard Meyers (collectively, the Homeowners) purchased a newly built home in Eagle, Idaho. In 2016, a toilet supply line in one of the bathrooms began leaking, causing water damage to the home as well as to window blinds, an oven and dishwasher. The Homeowners also incurred a loss of rental income. The Homeowners submitted a claim to Safeco Insurance Company (Insurer), their property insurance carrier, who ultimately covered the Homeowners’ losses. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams
Mr. Sara may be contacted at sarag@whiteandwilliams.com

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Court Rules Planned Development of Banning Ranch May Proceed

June 10, 2015 — Kristian B. Moriarty and Lawrence S. Zucker II – Haight Brown & Bonesteel, LLP
In Banning Ranch Conservancy v. City of Newport Beach (filed 5/20/2015, No. G049691), the California Court of Appeal, Fourth District, held the Environmental Impact Report prepared by the City of Newport Beach for the partial development of Banning Ranch complied with California environmental protection statutes and local ordinances. Under the California Environmental Quality Act (“CEQA”), a city desiring to approve or carry out a project that may have significant effect on the environment must prepare an environmental impact report (“EIR”) designed to provide the public with detailed information about the effect which a proposed project will have on the environment. The California Coastal Act of 1976 provides for heightened protection of environmentally sensitive habitat areas (“ESHA”) defined as any “area in which plant or animal life or their habitats are either rare or especially valuable because of their special nature or role in an ecosystem and which could be easily disturbed or degraded by human activities and developments.” In 2006, the City of Newport Beach adopted a General Plan for the physical development of the city. The plan specifically identifies Banning Ranch as having significant value as a wildlife habitat and open space resource for citizens. The general plan includes a primary goal of complete preservation of Banning Ranch as open space. To the extent the primary goal cannot be achieved, the plan identifies a secondary goal allowing limited development of Banning Ranch “to fund preservation of the majority of the property as open space.” The plan also requires the City to coordinate any development with the state and federal agencies. Reprinted courtesy of Kristian B. Moriarty, Haight Brown & Bonesteel LLP and Lawrence S. Zucker II, Haight Brown & Bonesteel LLP Mr. Moriarty may be contacted at kmoriarty@hbblaw.com; Mr. Zucker may be contacted at lzucker@hbblaw.com Read the court decision
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“Wait! Do You Have All Your Ducks in a Row?” Filing of a Certificate of Merit in Conjunction With a Complaint

January 13, 2020 — Rahul Gogineni - The Subrogation Strategist
In Barrett v. Berry Contr. L.P., No. 13-18-00498-CV, 2019 Tex. LEXIS 8811, the Thirteenth District Court of Appeals of Texas considered, among other things, the procedural timing requirements of filing a certificate of merit in conjunction with a complaint. The court concluded that the proper reading of the statute requires a plaintiff to file a certificate of merit with the first complaint naming the defendant as a party. In Barrett, after sustaining injuries while working at a refinery, David Barrett (Barrett) filed suit against Berry Contracting, LP and Elite Piping & Civil, Ltd. on July 6, 2016. In Barrett’s first amended complaint, which he filed on August 23, 2016, Barrett added Govind Development, LLC (Govind) as another defendant. Barrett subsequently filed a second amended complaint (omitting Govind) and, on December 27, 2017, shortly before the statute of limitations ran, a third amended complaint (reasserting claims against Govind). On January 28, 2018, after the statute of limitations period ran, Barrett filed a certificate of merit. Govind filed a motion to dismiss the claim, asserting that Barrett violated the statute that required a certificate of merit to be filed with the complaint, Tex. Civ. Prac & Rem. Code §150.002.

Tex. Civ. Prac. & Rem. Code §150.002(a) states, In any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, a claimant shall be required to file with the complaint an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect or registered professional land surveyor…

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Reprinted courtesy of Rahul Gogineni, White and Williams LLP
Mr. Gogineni may be contacted at goginenir@whiteandwilliams.com

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When is an Indemnification Provision Unenforceable?

September 06, 2021 — Christopher G. Hill - Construction Law Musings
Virginia Code Sec. 11-4.1 makes indemnification provisions in construction contracts that are so broad as to indemnify the indemnitee from its own negligence unenforceable. Of course, this begs the question as to what language of indemnification provisions make them unenforceable. A case from the City of Chesapeake Virginia Circuit Court examined this question. In Wasa Props., LLC v. Chesapeake Bay Contrs., Inc., 103 Va. Cir 423 [unfortunately I can’t find a copy to which to link], Wasa Properties (“Wasa”) hired Chesapeake Bay Contractors (“CBC”) to perform utility work at Lake Thrasher in the Tidewater area of Virginia. Wasa then alleged that CBC breached the contract and caused over $400,000 in damages due to incorrectly installed water lines. Wasa used the following indemnification language as the basis for its suit:

To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner and his agents and employees from and against all claims, damages, losses, and expenses, including but not limited to attorney’s fees arising out of or resulting from the performance of the Work.

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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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California Supreme Court Upholds Insurance Commissioner’s Authority to Regulate Replacement Cost Estimates

January 26, 2017 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP
n Assn. of Cal. Insurance Companies v. Jones ( No. S226529, filed 1/23/17), the California Supreme Court reversed trial and appellate court decisions to hold that California’s Insurance Commissioner Dave Jones had the authority to promulgate California Code of Regulations, title 10, section 2695.183, which sets out specific requirements for estimating replacement cost as part of any application for or renewal of homeowners insurance. The regulation was promulgated in 2010 in response to complaints from homeowners who lost their homes in the Southern California wildfires of 2003, 2007, and 2008, and who discovered that they did not have enough insurance to cover the full cost of repairing or rebuilding their homes because the insurers’ estimates of replacement value were too low when they purchased the insurance. Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP Mr. Kendrick may be contacted at ckendrick@hbblaw.com Ms. Moore may be contacted at vmoore@hbblaw.com Read the court decision
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