Virginia Families Hope to Sue over Chinese Drywall
October 10, 2013 —
CDJ STAFFAlthough Virginia isn't in the Fifth Circuit of the U.S. Court of Appeals, some Virginia homeowners ended up with a case there. And now the court has to decide whether Taishan Gypsum Co. Ltd. can be sued in American courts for defects in its products. The case made its way to Louisiana after the courts consolidated cases from across the country. If the court decides that the homeowners can’t sue, they could appeal to the Supreme Court, although that’s likely a longshot. Or, the homeowners could sue in the Chinese courts, also not likely.
More than 300 homes in Virginia are affected by fumes from the Chinese-made drywall, but only seven residents in the town of Hampton Roads are at the heart of the current case. They were chosen as representative of the entire group. Those seven have been collectively awarded $2.6 million, but the drywall manufacturer is appealing the judgement. If Taishan is victorious, then the damages already awarded will be overturned and there won’t be an option for the others.
The drywall emitted gases which corroded metals in the homes. One couple, Steve and Liz Heischober went through seven air conditioning coils in three years, along with problems with corrosion of appliances and electrical systems. If the current suit succeeds, the Heischobers, and the other, will be compensated for their damages, including the costs of repair and relocation. If Taishan loses, they could be responsible for about $1 billion.
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Florida Extends Filing Time for Claims Subject to the Statute of Repose
June 13, 2018 —
William L. Doerler - The Subrogation StrategistUnder Florida’s construction-related statute of repose, Fla. Stat. § 95.11, actions based on the design, planning or construction of an improvement to real property are barred if not commenced within 10 years after the later of several possible dates, including the date of actual possession by the owner and the date of the issuance of a certificate of occupancy. The Florida Legislature recently amended the statute to extend the time within which defendants subject to a suit filed close to the end of the 10-year period can file claims. Under the revised law, a defendant can file “counterclaims, cross-claims and third-party claims up to 1 year after the pleading to which such claims relate is served.” Regardless of when the cause of action at issue accrued, the law applies to actions commenced on or after July 1, 2018, except that any action that would not have been barred under Fla. Stat. § 95.11(3)(c) prior to the amendment may be commenced before July 1, 2019.
The revised law provides relief to defendants because, under the prior law, they had to file claims against other potentially responsible third parties before the expiration of the statute of repose. Under the new law, defendants can bring third parties into the action after the expiration of the 10-year statute of repose period.
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William L. Doerler, White and Williams LLPMr. Doerler may be contacted at
doerlerw@whiteandwilliams.com
Colorado Court of Appeals Defines “Substantial Completion” for Subcontractors’ Work so as to Shorten the Period of Time in Which They Can Be Sued
October 20, 2016 —
David M. McLain – Colorado Construction Litigation BlogOver the past few years, there has been a battle raging on in district courts and arbitration hearing rooms throughout Colorado regarding when a subcontractor’s work is to be deemed “substantially complete,” for purposes of triggering Colorado’s six-year statute of repose. C.R.S. § 13-80-104 states, in pertinent part:
Notwithstanding any statutory provision to the contrary, all actions against any architect, contractor, builder or builder vendor, engineer, or inspector performing or furnishing the design, planning, supervision, inspection, construction, or observation of construction of any improvement to real property shall be brought within the time provided in section 13-80-102 after the claim for relief arises, and not thereafter, but in no case shall such an action be brought more than six years after the substantial completion of the improvement to the real property, except as provided in subsection (2) of this section.
* * *
(2) In case any such cause of action arises during the fifth or sixth year after substantial completion of the improvement to real property, said action shall be brought within two years after the date upon which said cause of action arises.
C.R.S. § 13-80-104 (emphasis added).
As the battle raged on at the trial court level, subcontractors and design professionals argued that their work should be deemed “substantially complete” when they finished their discrete scope of work within a project. Developers and general contractors, seeking to maintain third-party claims against the subcontractors and design professionals, typically argued either that the subcontractors’ and design professionals’ work should be deemed “substantially complete” upon the issuance of the final certificate of occupancy on the project, or upon the issuance of the final certificate of occupancy for the last building within a project on which the subcontractor or design professional worked. Trial court judges and arbitrators have been split on this issue, with perhaps a slight majority favoring one or the other approaches advocated by developers and general contractors, that the subcontractors’ and design professionals’ work is “substantially complete” upon the issuance of the last certificate of occupancy in a project (the minority view) or upon the issuance of the last certificate of occupancy for the last building within a project on which the subcontractor of design professional worked (the majority view).
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David M. McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
Continuing Breach Doctrine
May 28, 2024 —
David Adelstein - Florida Construction Legal UpdatesHave you ever heard of the “continuing breach” doctrine? Probably not. It is not a doctrine commonly discussed. It’s a doctrine used to try to argue around the statute of limitations.
In an older Southern District Court of Florida case, Allapattah Services, Inc. v. Exxon Corp., 188 F.R.Ed. 667, 679 (S.D.Fla. 1999), the court explained: “Under this [continuing breach] doctrine, a cause of action for breach of a contract does not begin to accrue upon the initial breach; rather, on contracts providing serial performance by the parties, accrual of a breach of contract cause of action commences upon the occurrence of the last breach or upon termination of the contract.”
Recently, this doctrine came up in an opinion by Florida’s Fifth District Court of Appeal. In Hernando County, Florida v. Hernando County Fair Association, Inc., 49 Fla.L.Weekly D947b (Fla. 5th DCA 2024), a plaintiff appealed the trial court’s dismissal with prejudice of its breach of contract claim based on the statute of limitations. The plaintiff claimed the defendant breached the contract by its failure to substantially redevelop property. The trial court dismissed based on the statute of limitations. However, the complaint alleged the defendant’s failure to comply “with numerous other intertwined, ongoing, and continuing contractual duties and obligations.” Hernando County, supra. The Fifth District reversed based on the continuing breach doctrine: “Where the nature of the contract is continuous, statutes of limitations do not typically begin to run until termination of the entire contract.” Id. quoting and citing Allapattah Servs., Inc.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Doctrine of Avoidable Consequences as Affirmative Defense
January 31, 2018 —
David Adelstein - Florida Construction Legal UpdatesThe doctrine of avoidable consequences is an affirmative defense that can be used in certain property damage lawsuits. This is a defense that does not go to liability, but it goes to damages. This doctrine of avoidable consequences defense holds that a plaintiff cannot recover damages caused by a defendant that the plaintiff could have reasonably avoided . See Media Holdings, LLC v. Orange County, Florida, 43 Fla.L.Weekly D237c (Fla. 5th DCA 2018). Stated differently, if the plaintiff could have reasonably avoided the consequences of the damages caused by the defendant then the plaintiff cannot recover those damages. However, the defendant needs to prove this defense — the burden is on the defendant to establish this defense (ideally through expert testimony).
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
Wisconsin Supreme Court Abandons "Integrated Systems Analysis" for Determining Property Damage
September 12, 2023 —
Tred R. Eyerly - Insurance Law HawaiiThe Wisconsin Supreme Court departed from its previous mechanism for determining property damage under the "integrated systems analysis" and found the insurers were not entitled to summary judgment as determined by the trial court. 5 Walworth, LLC v. Engerman Contracting, Inc., 2023 Wis. LEXIS 152 (Wis. June 20, 2023).
5 Walworth LLC hired Engerman as general contractor to construct a swimming pool complex. Engerman subcontracted with Downes Swimming Pool Co., Inc. to construct the pool complex. Otto Jacobs supplied Downes with a ready-mixed concrete called shotcrete, commonly used in swimming poll construction.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
12 Newmeyer Dillion Attorneys Named to 2022 U.S. News Best Lawyers in Multiple Practice Areas
August 23, 2021 —
Newmeyer DillionProminent business and real estate law firm Newmeyer Dillion is pleased to announce that twelve of the firm's attorneys were recently selected for inclusion and will be recognized in their respective areas in The Best Lawyers in America© 2022. Additionally, Greg Dillion has been selected to Best Lawyers 2022 Lawyer of the Year list in Construction Law.
The twelve 2022 Best Lawyers are:
Jason Moberly Caruso,
Michael S. Cucchissi,
Jeffrey M. Dennis,
Greg L. Dillion,
Joseph A. Ferrentino,
Jon J. Janecek,
Michael B. McClellan,
Thomas F. Newmeyer,
John A. O'Hara,
Thomas H. Reilly,
Bonnie T. Roadarmel and
Jane M. Samson
Best Lawyers is the oldest peer-review publication for the legal profession. Attorneys are chosen through intensive peer-review surveys in which leading lawyers evaluate their professional peers. Best Lawyers listings are published in almost 70 countries worldwide and are recognized for their reliable and unbiased selections.
About Newmeyer Dillion
For over 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that achieve client objectives in diverse industries. With over 60 attorneys working as a cohesive team to represent clients in all aspects of business, employment, real estate, environmental/land use, privacy & data security and insurance law, Newmeyer Dillion delivers holistic and integrated legal services tailored to propel each client's operations, growth, and profits. 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 Nevada, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.newmeyerdillion.com.
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ASCE Releases New Report on Benefits and Burdens of Infrastructure Investment in Disadvantaged Communities
February 05, 2024 —
The American Society of Civil EngineersWashington — The
American Society of Civil Engineers today released a new paper, Measuring the Benefits and Burdens of Infrastructure in Disadvantaged Communities. The report looks at how several communities across the country consider equity when investing infrastructure funds, and the impact of those projects on lower-income communities.
"Civil engineers are focused on improving quality of life by building systems that improve the public's health, safety, and well-being," said Marsia Geldert-Murphey, P.E., 2024 President, ASCE. "However, the decisions on how and where infrastructure is built can affect communities for decades after a project is complete. By looking at the benefits and burdens of past projects, infrastructure owners and developers can find better ways to consider the impact of infrastructure projects being designed now."
Some of the recommendations in the paper include encouraging government and other infrastructure stakeholders to use community engagement and transparent metrics when making decisions about proposed infrastructure investments. It also encourages post-project assessments and the use of existing resources to evaluate the positive and unexpected consequences of past infrastructure projects.
Measuring the Benefits and Burdens of Infrastructure in Disadvantaged Communities is
available here.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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