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    Anaheim, California

    California Builders Right To Repair Current Law Summary:

    Current Law Summary: SB800 (codified as Civil Code §§895, et seq) is the most far-reaching, complex law regulating construction defect litigation, right to repair, warranty obligations and maintenance requirements transference in the country. In essence, to afford protection against frivolous lawsuits, builders shall do all the following:A homeowner is obligated to follow all reasonable maintenance obligations and schedules communicated in writing to the homeowner by the builder and product manufacturers, as well as commonly accepted maintenance practices. A failure by a homeowner to follow these obligations, schedules, and practices may subject the homeowner to the affirmative defenses.A builder, under the principles of comparative fault pertaining to affirmative defenses, may be excused, in whole or in part, from any obligation, damage, loss, or liability if the builder can demonstrate any of the following affirmative defenses in response to a claimed violation:

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    Building Industry Association Southern California - Desert Chapter
    Local # 0532
    77570 Springfield Ln Ste E
    Palm Desert, CA 92211

    Building Industry Association Southern California - Riverside County Chapter
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    3891 11th St Ste 312
    Riverside, CA 92501

    Building Industry Association Southern California
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    17744 Sky Park Circle Suite 170
    Irvine, CA 92614

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    Building Industry Association Southern California - Baldy View Chapter
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    Construction Expert Witness News and Information
    For Anaheim California

    Court Requires Adherence to “Good Faith and Fair Dealing” in Construction Defect Coverage

    Is Construction Heading Off the Fiscal Cliff?

    Differing Rulings On Construction Defect Claims Leave Unanswered Questions For Builders, and Construction Practice Groups. Impact to CGL Carriers, General Contractors, Builders Remains Unclear

    Construction Firm Charged for Creating “Hail” Damage

    Building Boom Leads to Construction Defect Cases

    Good and Bad News on Construction Employment

    Faulty Workmanship Exclusion Does Not Bar Coverage

    Colorado statutory “property damage” caused by an “occurrence”

    Construction Defect Journal Marks First Anniversary

    No Coverage For Damage Caused by Chinese Drywall

    Continuous Trigger of Coverage Adopted for Loss Under First Party Policy

    Homeowner may pursue negligence claim for construction defect, Oregon Supreme Court holds

    Court Sends Construction Defect Case from Kansas to Missouri

    Nevada Court Adopts Efficient Proximate Cause Doctrine

    All Risk Policy Only Covers Repair to Portion of Dock That Sustains Damage

    Contractors Admit Involvement in Kickbacks

    Seven Tips to Manage Construction Defect Risk

    Brown Paint Doesn’t Cover Up Construction Defects

    Condo Buyers Seek to Void Sale over Construction Defect Lawsuit

    No Coverage For Construction Defects When Complaint Alleges Contractual Damages

    Virginia Chinese Drywall “property damage” caused by an “occurrence” and number of “occurrences”

    Can Negligent Contractors Shift Blame in South Carolina?

    Courts Are Conflicted As To Whether "Good Faith" Settlement Determinations Can Be Reviewed Via Writ Petition Or Appeal

    California Supreme Court Finds Associations Bound by Member Arbitration Clauses

    Underpowered AC Not a Construction Defect

    Damage During Roof Repairs Account for Three Occurrences

    State Farm Too Quick To Deny Coverage, Court Rules

    Coverage for Construction Defects Barred by Business Risk Exclusions

    Construction Delayed by Discovery of Bones

    Ensuing Loss Provision Does Not Salvage Coverage

    Environment Decision May Expand Construction Defect Claims

    Senate Committee Approves Military Construction Funds

    Homeowners Sue Over Sinkholes, Use Cash for Other Things

    California Assembly Bill Proposes an End to Ten Year Statute of Repose

    Judge Rejects Extrapolation, Harmon Tower to Remain Standing

    CC&Rs Not the Place for Arbitration Agreement, Court Rules

    Construction Defects in Home a Breach of Contract

    Policyholder Fails to Build Adequate Record to Support Bad Faith Claim

    Georgia Supreme Court Rules Construction Defects Can Constitute an Occurrence in CGL Policies

    Florida Appeals Court Rules in Favor of Homeowners Unaware of Construction Defects and Lack of Permits

    New Households Moving to Apartments

    Condo Board May Be Negligent for not Filing Construction Defect Suit in a Timely Fashion

    Condo Owners Allege Construction Defects

    Georgia Law: “An Occurrence Can Arise Where Faulty Workmanship Causes Unforeseen or Unexpected Damage to Other Property”

    AFL-CIO Joins in $10 Billion Infrastructure Plan

    District Court Awards Summary Judgment to Insurance Firm in Framing Case

    Statute of Repose Dependant on When Subcontractors Finished

    Florida County Suspends Impact Fees to Spur Development

    Texas covered versus uncovered allocation and “legally obligated to pay.”

    Harmon Tower Construction Defects Update: Who’s To Blame?
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    Through more than 4500 construction and design related expert witness designations, the Anaheim, California Construction Expert Directory provides a wide spectrum of trial support and consulting services to builders and construction claims professionals concerned with construction defect, scheduling, and delay matters. BHA provides construction claims evaluation, testimony, and support services to the construction industry's leading builders and developers, legal professionals, and owners, as well as a variety of state and local government agencies. Employing in house resources which comprise building envelope experts, forensic architects, professional engineers, credentialed construction standard of care consultants, the firm brings regional experience and flexible capabilities to the Anaheim construction industry.

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    Construction Expert Witness News & Info
    Anaheim, California

    Boston’s Tunnel Project Plagued by Water

    August 11, 2011 — CDJ Staff

    Boston’s Tip O’Neil Tunnel, part of the “Big Dig” project, is suffering from water leaks which has lead to millions of dollars of damage, according to an article in the Boston Globe. The report quotes Frank DePaola, the highway administrator, as likening the water leaks to “three garden hoses.” The project’s chief engineer notes that those “three garden hoses” add up to 17 million gallons a year.

    Further, the chief engineer reports notes that the leaks could compromise both safety and structural integrity. Problems have included a 110-pound light fixture that fell in February, ventilation ducts clogged with ice during the winter, and mold in utility rooms and ventilation buildings.

    Read the full story…

    Unlicensed Contractors Nabbed in Sting Operation

    September 9, 2011 — CDJ Staff

    The California State License Board charged sixteen people in the Fresno area with accepting contracting jobs without licenses. The Statewide Investigative Fraud Team of the CSLB set up a sting operation at a home in Clovis, California seeking bids on tree service, painting, and general contracting services. Those who bid for jobs at more than $500 are required under California law to be licensed. Unlicensed contractors can only work on jobs with a cost to the homeowner of less than $500 and must inform the homeowner that they are not licensed.

    In addition to citing contractors for not possessing appropriate licenses, the CSLB also cited contractors for failure to carry workers compensation insurance and illegal advertising. Further, California law limits down payments to the lesser of ten percent or $1,000. Two contractors were cited for requesting excessive down payments.

    One contractor, an unlicensed tree service contractor, had been cited previously in a sting operation. He failed to show up for his court date.

    Read the full story…

    Town Files Construction Lawsuit over Dust

    August 16, 2012 — CDJ Staff

    Washington Township in Ohio has filed a lawsuit against Underground Utilities for their handling of construction fill on a road project. The City of Mansfield had hired the firm to improve road safety. The lawsuit is over the company’s actions in processing soil for fill, which they are doing on three vacant lots that are zoned for residential use. Washington Township Trustee Jack Butler told the Mansfield Journal that “what brought the lawsuit to a head was the fact that the contractor did not control the dust.” Subsequent receiving notices of zoning violations, the company began to move its operation to another site.

    Read the full story…

    South Carolina Legislature Redefining Occurrences to Include Construction Defects in CGL Policies

    April 1, 2011 — April 1, 2011 Beverley BevenFlorez - Construction Defect Journal

    The question of what circumstances must be in place for construction defects to be covered in a general commercial liability (CGL) policies is being raised by the courts and the legislature in South Carolina. The Insurance Journal reports that the American Insurance Association as well as the Property and Casualty Insurers Association of America are speaking out on the issue.

    The problem seems to be centered on what defines an “occurrence.” CGL policies were not meant to cover faulty workmanship, according to the filing by the South Carolina Supreme Court. In January of this year, the South Carolina Supreme Court reversed the ruling in Crossmann Communities v Harleysville Mutual declaring that “Respondents cannot show the damage here was the result of an occurrence. Rather, the damage was a direct result and the natural and expected consequence of faulty workmanship; faulty workmanship did not cause an occurrence resulting in damage.” They focused their attention on the word “accident,” stating that there is a fortuity element that is not diminished.

    The South Carolina legislature reacted by producing a bill that would add new language directly negating the ruling by the Supreme Court. The South Carolina bill S-431 would change the definition of an occurrence in regards to construction defects as follows: “For a liability insurance policy issued to a construction professional, an ‘occurrence’ means, at a minimum: (1) an accident; or (2) continuous or repeated exposure to substantially the same general harmful condition or substance. No additional requirement of a fortuitous event is needed to constitute an ‘occurrence.’”

    S-431 is currently residing in the House Committee on Labor, Commerce and Industry.

    Read the full story...

    Construction Firm Charged for Creating “Hail” Damage

    June 19, 2012 — CDJ Staff

    A Burlington County, Pennsylvania judge has sentenced a firm and its employee for insurance fraud. In the scam, representatives of Precision Builders visited homes after hailstorms and advised homeowners that they could get new roofs and sidings covered by insurance. Many of the homeowners noted that they had not noticed any hail damage.

    After homeowners filed claims, employees of Precision Builders would visit the homes and damage the roofs and sidings consistent with the adjusters’ reports.

    One employee of Precision Builders, Dominik Sadowski, has pleaded guilty to third-degree insurance fraud. He has been sentenced to four years probation and 100 hours of community service. Another defendant, Marcin Gradziel, is alleged to have visited and damaged properties. He has plead not guilty.

    Read the full story…

    Steps to Defending against Construction Defect Lawsuits

    July 21, 2011 — CDJ Staff

    Writing in Claims Journal, Bryan Rendzio notes that the decline in construction has not been matched by a decline in construction defect lawsuits over condominiums. He reviews the ways in which lawyers representing developers can help protect their clients. He identifies four important considerations in defending developers from claims of construction defects.

    He advocates a careful review of the contract. “Under a breach of contract claim, the insured’s duties to the party who brought the claim against the insured flow from the contract. Commonly, construction contracts limit the scope of recoverable damages, such as by waiving consequential damages.’

    The next step, according to Rendzio is to check of a settlement agreement is already in place, noting that these are “a familiar occurrence in the construction industry, regardless of any lawsuits having been filed.”

    He considers the statute of repose “the single-most decisive weapon an insured possesses in its arsenal during a condo defect lawsuit.” He notes that no lawsuits can be brought for construction defects after the end specified by the statute of repose, and if a lawsuit is brought beforehand, no additional parties can be named once the statute has taken effect.

    Finally, he warns adjusters to be suspicious when a condo association requests contractual indemnification. He notes that the pitfall in this is that developers and the subsequent condominium association often have similar names, given the theoretical example of a condo project built by “Fake Lakes LLC” and later run by the “Fake Lakes Condominium Association.” Writing in regards to Florida law, he notes that condominium associations do not have successor interest in contracts developers made with contractors.

    Read the full story…

    Tennessee Court: Window Openings Too Small, Judgment Too Large

    November 18, 2011 — CDJ Staff

    The Tennessee Court of Appeals has issued a ruling in the case of Dayton v. Ackerman, upholding the decision of the lower court, even as they found that the award was incorrectly computed. The Daytons purchased a house that had been designed and built by the Ackermans, who operated a construction business. The court noted that the warranty with the house promised that “for a period of 60 days, the following items will be free of defects in materials or workmanship: doors (including hardware); windows; electric switches; receptacles; and fixtures; caulking around exterior openings; pluming fixtures; and cabinet work.”

    Soon, the Daytons began to experience problems with the house. Many were addressed by the Ackermans, but the Daytons continued to have problems with the windows. Neither side could specify a firm date when the Ackermans were contacted by the Daytons about the window problems. The Ackermans maintained that more than two years passed before the Daytons complained about the windows. The lower court found the Daytons more credible in this.

    Initially, the Daytons included the window manufacturer in their suit, but after preliminary investigations, the Daytons dropped Martin Doors from their suit. Martin Doors concluded that the windows were improperly installed, many of them “jammed into openings that were too small for them.”

    After the Daytons dismissed Martin Doors, the Ackermans sought to file a third party complaint against them. This was denied by the court, as too much time had elapsed. The Ackermans also noted that not all of the window installations were defective, however, the courts found that the Daytons ought not to have mismatched windows.

    Unfortunately for the Daytons, the window repair was done incorrectly and the windows were now too small for the openings. The firm that did the repair discounted the windows and Daytons concealed the problem with plantation shutters, totalling $400 less than the original lowest estimate. However, the appeals court noted that it was here that the trial court made their computation error. Correcting this, the appeals court assessed the Ackermans $12,016.20 instead of $13,016.20.

    Finally, the Ackerman’s expert was excluded as he had changed his testimony between deposition and trial. The trial reviewed the expert’s testimony and had it been admissible, it would not have changed the ruling.

    Read the court’s decision…

    Insurer Has Duty to Defend Despite Construction Defects

    January 6, 2012 — CDJ Staff

    In a case the judge attributed to “shoddy masonry work,” the US District Court of Illinois has rendered a decision in AMCO Insurance Company v. Northern Heritage Builders. Northern Heritage built a home in Chicago for Michael McGrath (who joined Northern Heritage as a defendant). According to the decision, “seven months after he moved into the house, McGrath noticed water coming in the house and warped millwork.” This was attributed to porous block, installed by the mason with Northern Heritage’s knowledge.

    McGrath sued National Heritage for both the damage to his house and its contents. The court rejected his claim for the contents. For the damages to his house, he was awarded $601,570.50 in damages. He also sued his homeowner’s insurance carrier for damages not covered in his suit against National Heritage. There he was awarded $1,130,680.16.

    AMCO informed National Heritage that it had neither duty to defend nor duty to indemnify. The judge considered whether AMCO had a duty to defend. Under Illinois law, “damage to a construction project resulting from construction defects is not an ‘accident’ or ‘occurrence’ because it represents the natural and ordinary consequence of faulty construction.” However, it is noted that while if the defects lead only to damage to the project itself, there is no occurrence, “if the building owner asserts damages to other property besides the construction itself, there is an ‘occurrence’ and ‘property damage.’” The judge further noted that were construction defects an occurrence, “shoddy work” would be rewarded by double pay, once by the homeowner and a second time by the insurer. Judge Kendall concluded that as McGrath had alleged damage to the contents of his house, AMCO had a duty to defend National Heritage.

    She then looked at the issue of whether AMCO had a duty to indemnify. Should they pay the $601,570.50? Judge Kendall noted that “the duty to indemnify is narrower than the duty to defend.” The key point here was that once McGrath’s insurance carrier covered him for the damage to the contents of his house, “AMCO’s duty to defend ended.” Once McGrath “only sought damages for the natural consequences of faulty workmanship” there was no occurrence, hence nothing for AMCO to cover.

    Judge Kendall granted a summary dismissal of AMCO’s claim that they had no duty to defend while upholding their claim that they had no duty to indemnify.

    Read the court’s decision…