BERT HOWE
  • Nationwide: (800) 482-1822    
    high-rise construction Marin County California casino resort Marin County California landscaping construction Marin County California townhome construction Marin County California mid-rise construction Marin County California condominiums Marin County California housing Marin County California production housing Marin County California custom home Marin County California parking structure Marin County California Subterranean parking Marin County California retail construction Marin County California hospital construction Marin County California Medical building Marin County California industrial building Marin County California structural steel construction Marin County California condominium Marin County California multi family housing Marin County California concrete tilt-up Marin County California office building Marin County California institutional building Marin County California low-income housing Marin County California
    Arrange No Cost Consultation
    Construction Expert Witness Builders Information
    Marin County, 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:


    Construction Expert Witness Contractors Licensing
    Guidelines Marin County California

    Commercial and Residential Contractors License Required.


    Construction Expert Witness Contractors Building Industry
    Association Directory
    Building Industry Association of the Delta
    Local # 0513
    315 N San Joaquin St Ste 2
    Stockton, CA 95202
    http://www.biadelta.org

    Building Industry Association of the Bay Area
    Local # 0538
    101 Ygnacio Valley Rd # 210
    Walnut Creek, CA 94596
    http://www.biabayarea.org

    Building Industry Association of the Bay Area - Eastern Division
    Local # 0538
    PO Box 5160
    San Ramon, CA 94583


    Building Industry Association of Central California
    Local # 0536
    900 H St Ste E2
    Modesto, CA 95354
    http://www.biacc.com

    Building Industry Association of the Bay Area - Northern Division
    Local # 0538
    PO Box 7100
    Santa Rosa, CA 95407


    California Building Industry Association
    Local # 0500
    1215 K Street Ste 1200
    Sacramento, CA 95814
    http://www.cbia.org

    Building Industry Association of the Bay Area - Southern Division
    Local # 0538
    675 N 1st St Suite 620
    San Jose, CA 95112



    Construction Expert Witness News and Information
    For Marin County California

    No Choice between Homeowner Protection and Bankrupt Developers?

    Court Sends Construction Defect Case from Kansas to Missouri

    Guilty Pleas Draw Renewed Interest In Nevada’s Construction Defect Laws

    Continuous Trigger of Coverage Adopted for Loss Under First Party Policy

    Restitution Unlikely in Las Vegas Construction Defect Scam

    In Re Golba: The Knaubs v. Golba and Rollison, Debtors

    Product Exclusion: The Big Reason Behind The Delay of LEED 2012

    Defense for Additional Insured Not Barred By Sole Negligence Provision

    Pier Fire Started by Welders

    HOA Has No Claim to Extend Statute of Limitations in Construction Defect Case

    Supreme Court of New York Denies Motion in all but One Cause of Action in Kikirov v. 355 Realty Assoc., et al.

    Limiting Plaintiffs’ Claims to a Cause of Action for Violation of SB-800

    Construction Defect Not Occurrences, Says Hawaii Court

    Counterpoint: Washington Supreme Court to Rule on Resulting Losses in Insurance Disputes

    Foundation Arbitration Doesn’t Preclude Suing Over Cracks

    Colorado Court of Appeals holds that insurance companies owe duty of prompt and effective communication to claimants and repair subcontractors

    Construction Law Client Alert: California Is One Step Closer to Prohibiting Type I Indemnity Agreements In Private Commercial Projects

    More Charges in Las Vegas HOA Scandal

    Another Las Vegas Tower at the Center of Construction Defect Claims

    Insurance Firm Under No Duty to Defend in Hawaii Construction Defect Case

    Massachusetts Couple Seek to Recuse Judge in Construction Defect Case

    Construction Firm Sues City and Engineers over Reservoir Project

    Consulting Firm Indicted and Charged with Falsifying Concrete Reports

    Washington Supreme Court Sides with Lien Claimants in Williams v. Athletic Field

    California Bill Would Notify Homeowners on Construction Defect Options

    Florida Construction Defect Case Settled for $3 Million

    High School Gym Closed by Construction Defects

    2011 Worst Year Ever for Home Sales

    One Colorado Court Allows Negligence Claim by General Contractor Against Subcontractor

    Lockton Expands Construction and Design Team

    Will They Blow It Up?

    Nevada Court Adopts Efficient Proximate Cause Doctrine

    California insured’s duty to cooperate and insurer’s right to select defense counsel

    Federal Court Denies Summary Judgment in Leaky Condo Conversion

    Court Rules on a Long List of Motions in Illinois National Insurance Co v Nordic PCL

    FHA Lists Bridges and Overpasses that May Have Defective Grout

    Condo Buyers Seek to Void Sale over Construction Defect Lawsuit

    Partial Settlement in DeKalb Construction Management Case

    Construction Defects Lead to Demolition

    US Courts in Nevada Busy with Yellow Brass

    Harmon Tower Construction Defects Update: Who’s To Blame?

    No Coverage For Damage Caused by Chinese Drywall

    Defective Drains Covered Despite Water Intrusion Exclusion

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

    Home Repair Firms Sued for Fraud

    Reference to "Man Made" Movement of Earth Corrects Ambiguity

    Insurer Has Duty to Disclose Insured's Interest In Obtaining Written Explanation of Arbitration Award

    Contractor Manslaughter? Safety Shortcuts Are Not Worth It

    Defective Shingle Claims Valid Despite Bankruptcy

    Statute of Limitations Upheld in Construction Defect Case

    Mandatory Arbitration Provision Upheld in Construction Defect Case

    No Coverage for Counterclaim Alleging Construction Defects Pled as Breach of Contract

    Damage During Roof Repairs Account for Three Occurrences

    Condominium Exclusion Bars Coverage for Construction Defect

    Exclusion Bars Coverage for Mold, Fungus

    There is No Non-Delegable Duty on the Part of Residential Builders in Colorado

    Excess Carrier Successfully Appeals Primary Insurer’s Summary Judgment Award

    Fifth Circuit Reverses Insurers’ Summary Judgment Award Based on "Your Work" Exclusion

    United States District Court Confirms That Insurers Can Be Held Liable Under The CCPA.

    Court Voids Settlement Agreement in Construction Defect Case

    No Resulting Loss From Deck Collapsing Due to Rot

    Dust Infiltration Due to Construction Defect Excluded from Policy

    BUILD Act Inching Closer To Reality

    Boston’s Tunnel Project Plagued by Water

    Fire Reveals Defects, Appeals Court Affirms Judgment against Builder

    Construction Bright Spot in Indianapolis

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

    Instant Hotel Tower, But Is It Safe?

    Nevada Supreme Court Reverses Decision against Grader in Drainage Case

    Water District Denied New Trial in Construction Defect Claim

    Save A Legal Fee? Sometimes You Better Talk With Your Construction Attorney

    Insurer Beware: Failure to Defend Ends with Hefty Verdict

    Insurer’s Discovery Requests Ruled to be Overbroad in Construction Defect Suit

    Congress Addresses Homebuilding Credit Crunch

    In Oregon Construction Defect Claims, “Contract Is (Still) King”

    Brown Paint Doesn’t Cover Up Construction Defects

    Housing Market on Way to Recovery

    Windows and Lawsuits Fly at W Hotel

    Construction Defects Are Occurrences, Says Georgia Supreme Court

    Insurers Reacting to Massachusetts Tornadoes

    “Other Insurance” and Indemnity Provisions Determine Which Insurer Must Cover

    No Coverage For Construction Defects When Complaint Alleges Contractual Damages

    Tenth Circuit Finds Insurer Must Defend Unintentional Faulty Workmanship

    History of Defects Leads to Punitive Damages for Bankrupt Developer

    Green Buildings Could Lead to Liabilities

    Save a Legal Fee: Prevent Costly Lawsuits With Claim Limitation Clauses

    Insurer Able to Refuse Coverage for Failed Retaining Wall

    Insurer Must Cover Construction Defects Claims under Actual Injury Rule

    No Duty to Indemnify When Discovery Shows Faulty Workmanship Damages Insured’s Own Work

    Colorado Senate Bill 12-181: 2012’s Version of a Prompt Pay Bill
    Corporate Profile

    MARIN COUNTY CALIFORNIA CONSTRUCTION EXPERT WITNESS
    DIRECTORY AND CAPABILITIES

    The Marin County, California Construction Expert Witness Group is comprised from a number of credentialed construction professionals possessing extensive trial support experience relevant to construction defect and claims matters. Leveraging from this considerable body of experience, BHA provides construction related trial support and expert services to the nation's most recognized construction litigation practitioners, Fortune 500 builders, commercial general liability carriers, owners, construction practice groups, and a variety of state and local government agencies.









    Construction Expert Witness News & Info
    Marin County, California

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

    April 27, 2011 — April 27, 2011, by CDCoverage.com

    In Markel American Ins. Co. v. Lennar Corp., No. 14-10-00008-CV (Tex. Ct. App. April 19, 2011), insured homebuilder Lennar filed suit against its insurer Markel seeking recovery of costs incurred by Lennar to repair water damage to homes resulting from defective EIFS siding. Following a jury trial, judgment was entered in favor of Lennar and against Markel. On appeal, the intermediate appellate court reversed. Applying Texas law, the court first held that Lennar failed to satisfy its burden of allocating damages between covered and uncovered. In a prior decision, the court had held that, while the costs incurred by Lennar for the repair of the resulting water damage

    Read the full story…

    Reprinted courtesy of CDCoverage.com


    An Upward Trend in Commercial Construction?

    March 28, 2012 — Melissa Dewey Brumback, Construction Law North Carolina

    Year-end economic indicators demonstrate that private commercial construction may be increasing in 2012, primarily as demand grows for new projects built in the United States.

    According to an article in Businessweek, the Architecture Billings Index held at 52 in December, indicating a modest expansion in the market. The American Institute of Architects said that the commercial and industrial component of the number climbed to 54.1 in December, the highest in 10 months.

    The monthly survey of U.S.-based architecture firms is one of the main indicators of nonresidential construction, and these numbers suggest that modest improvement may be on the horizon.

    The information is confirmed by data from the Census Bureau that shows that spending on lodging, office, commercial and manufacturing buildings grew 8.2 percent in November to $9.2 billion from a year ago. These types of commercial and industrial projects are historically canaries in the mine and are usually the first part of the industry to improve as the economy expands.

    Read the full story…

    Reprinted courtesy of Melissa Dewey Brumback of Ragsdale Liggett PLLC. Ms. Brumback can be contacted at mbrumback@rl-law.com.


    There is No Non-Delegable Duty on the Part of Residential Builders in Colorado

    August 2, 2012 — Brady Iandiorio, Higgins, Hopkins, McLain & Roswell, LLC

    Recently, in the Arapahoe District Court, the Honorable Michael Spear, issued an order holding that builders do not owe a non-delegable duty to homeowners. In Marx and Corken v. Alpert Custom Homes, Inc., et al., Judge Spear’s order came in response to plaintiffs’ motion for determination of question of law seeking a finding that the defendants owed a non-delegable duty to the plaintiffs and thus, to strike defendants’ designation of nonparties at fault. After being fully briefed, Judge Spear, found that such a non-delegable duty does not exist.

    The case arises from the construction of a single-family residence in Aurora, Colorado. Through the construction and interaction with Alpert Custom Homes, Inc. and Scott and Sally Alpert, the defendants, Paul Marx and Kay Corken, the plaintiffs claimed they suffered various damages and losses, and brought claims for breach of contract-warranty, breach of contract, violation of the Colorado Consumer Protection Act, breaches of the implied covenant of good faith, promissory estoppel, willful breach of contract, and quantum meruit. During litigation, the defendants filed a designation of nonparties at fault, which named several parties which were at fault for the alleged construction defects at issue in the case. The pertinent nonparties named were subcontractors of defendant Alpert Custom Homes, Inc. during the construction of the residence.

    Read the full story…

    Reprinted courtesy of Brady Iandiorio, Higgins, Hopkins, McLain & Roswell, LLC. Mr. Iandiorio can be contacted at iandiorio@hhmrlaw.com


    Kentucky Court Upholds Arbitration Award, Denies Appeal

    June 15, 2011 — CDJ Staff

    The Kentucky Court of Appeals has ruled in Lake Cumberland Community Action Agency v. CMW, Inc. affirming the arbitration award. CMW, Inc. was responsible for the construction of a facility to be used for pre-school students and the housing of Alzheimer patients and senior citizens. An agreement was made that any disputes would be heard by an arbitrator selected by the construction industry.

    The plaintiff alleged that there were design and construction defects in the building trusses, violation of the Kentucky Building Code, and problems with the HVAC system. The arbitrator awarded $106,000 to the plaintiff which then sought to vacate the award. The circuit court upheld the arbitrator’s decision.

    The Court of Appeals found that there was no basis for rejecting the arbitrator’s decision, noting “there is nothing to show that there was any fraud or bias on the part of the arbitrator.” The appeals court, with all three judges concurring, upheld the arbitration award.

    Read the court’s decision


    Contractor’s Coverage For Additional Insured Established by Unilateral Contract

    November 18, 2011 — Tred Eyerley, Insurance Law Hawaii

    The contractor was covered as an additional insured under the subcontractor’s policy even though the parties had never actually signed an agreement to add the contractor to the policy. Evanston Ins. Co. v. Westchester Surplus Lines Ins. Co., 2011 U.S. App. LEXIS 20081 (9th Cir. Oct. 3, 2011).

    The policies held by Bellevue Master, the general contractor, required it to be an additional insured under any subcontractor’s liability policy. Northwest Tower Crane Services was a subcontractor. Bellevue Master LLC, faxed a message that Northwest could continue to be a subcontractor on the project if it complied with Bellevue Master’s insurance requirements. Northwest contacted its insurance broker and requested an insurance certificate be issued to Bellevue Master so that it would be an additional insured under Northwest’s policy.

    Read the full story…

    Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com


    “Details Matter” is the Foundation in a Texas Construction Defect Suit

    March 1, 2012 — CDJ Staff

    The Court of Appeals of Texas has ruled in the case of Barzoukas v. Foundation Design. Mr. Barzoukas contracted with Heights Development to build a house. He subsequently sued Heights Developments and “numerous other defendants who participated in the construction of his house.” Barzoukas eventually settled with all but two defendants, one who went bankrupt and Foundation Design, the defendant in this case. In the earlier phase, Barzoukas made claims of “negligence, negligent misrepresentation, fraud, fraudulent inducement, conspiracy, and exemplary damages in connection with the foundation.”

    Foundation Design had been hired to install 15-foot piers to support the foundation. The engineer of record, Larry Smith, sent a letter to Heights Development noting that they had encountered hard clay stone when drilling. Smith changed the specifications to 12-foot piers. Initially, the City of Houston called a halt to work on the home when an inspector concluded that the piers were too shallow. Heights Development later convinced the city to allow work to continue. Subsequently, experts concluded that the piers were too shallow.

    Foundation Design filed a motion for summary judgment. The trial court granted this, “without specifying the basis for its ruling.” Barzoukas contends the court was in error. Foundation Design contends that “Barzoukas failed to proffer competent evidence establishing that their conduct proximately caused damages.” Further, they did not feel that Smith’s letter gave “rise to viable claims for fraud and fraudulent inducement.”

    One problem the court had was a lack of evidence. The court noted that “the purported subcontract is entirely missing” in the pleadings. The court has no contract between Bazourkas and Heights Development, nor one between Heights Development and either Foundation Design or Smith. The court underscored the importance of this, writing, “details matter.” They found that “the details are largely missing here.” Without the contract, the court found it impossible to determine if “Smith or an entity related to him agreed to indemnify Heights Development for damages arising from Smith’s negligent performance.”

    As the material facts are in dispute, the appeals court found that there were no grounds for a summary judgment in the case. “Pointing to the existence of a contract between Heights Development and Barzoukas, or to the existence of a subcontract, is the beginning of the analysis ? not the end.”

    Foundation Design and Smith also claimed that Barzoukas’s expert did not proffer competent evidence and that the expert’s opinions were conclusory. The trial court did not rule on these claims and the appeals court has rejected them.

    Finally, Barzoukas made a claim that the trial court should not have rejected his argument of fraud and fraudulent inducement. Here, however, the appeals court upheld the decision of the lower court. “Barzoukas did not present evidence supporting an inference that Smith or Foundation Design made a purposeful misrepresentation.

    The court remanded the case to the trial court for reconsideration. One member of the panel, Judge Charles Seymore, upheld the entire decision of the trial court. He dissented with the majority, finding that the economic loss rule foreclosed the claim of negligence.

    Read the court’s decision…


    Gilroy Homeowners Sue over Leaky Homes

    February 10, 2012 — CDJ Staff

    Two years into a lawsuit against Shapell Homes, the builder of a subdivision called Eagle Ridge in Gilroy, California, homeowners have joined or left the lawsuit. About fifty homeowners are still in the suit, which contends that construction defects have lead to water intrusion in their homes. The lawyer for the homeowners contends that more than a hundred homes have construction defects.

    One homeowner said that soon after he joined the suit, Sharpell sent workers to his home who repaired problems to his satisfaction. “They came in within two weeks and fixed everything,” said Frank Lowry. Another homeowner, Wilson Haddow, said that he was “quite happy” after Shapell repaired problems.

    Others weren’t quite so happy. Greg Yancey said that problems had “been a nightmare” and that “it just doesn’t feel like home.” He said that his “house is possessed,” with problems that include walls that bow out and a balcony that drips rainwater to the front door. His home is currently worth far less than the $700,000 he paid in 2007.

    Read the full story…


    Seven Tips to Manage Construction Defect Risk

    July 10, 2012 — CDJ Staff

    Jody T. Wright looks at “seven strategies being used around the country to identify, manage and mitigate your exposures” in a piece in Business Insurance. Wright, Senior VP, Construction Department Manager for Lockton Companies in Denver, gives seven simple steps from the perspective of a insurer.

    His first step is to match your project to your insurance. He suggests keeping the riskier projects separate, noting that from an insurer’s point-of-view, “any project that creates a homeowners association carries a higher potential threat of future litigation.” This leads to his second point: you need to “determine what makes your liability insurer nervous.” In other words, talk with your insurer.

    His third point suggests that builders look back and see if there is a pattern of problems that have lead to payouts from your insurer. Keep your insurer happier by making sure these areas don’t continue to be problems. Nor should you look for new problems. He suggests against leading in new technologies.

    Three more points deal with being careful about with whom you associate. He tells builders to negotiate their contracts, avoiding clauses that would obligate a builder to “indemnify the owner for the negligent work of others that they did not control.” Avoid subcontractors “with loss patterns that might affect your project and reputation.” Builders should identify “owners with a pattern of suing contractors” adding that risk to the cost of the job. They should also identify “the most effective attorneys and expert witnesses” and get them involved before the litigation starts.

    Read the full story…


    Construction Defects in Home a Breach of Contract

    September 9, 2011 — CDJ Staff

    The Supreme Court of North Dakota has ruled in Leno v. K & L Homes, affirming the verdict of the lower court. K & L Homes argued that district court had erred in several ways, including by refusing to instruct the jury on comparative fault, denying a request for inspection, and not allowing a defendant to testify on his observations during jury viewing.

    The Lenos purchased a home constructed by K & L Homes, after which they alleged they found cracks, unevenness, and shifting, which they attributed to improper construction. They claimed negligence on the part of K & L Homes. K & L Homes responded that the Lenos were responsible for damage to the home. The Lenos dropped their negligence claim, arguing breach of contract and implied warranties.

    Before the trial, after the discovery period had passed, K & L Homes requested to inspect the home. This was rejected by the court. Kelly Moldenhauer, the owner of K & L Homes sought to testify about his observations during the jury’s viewing of the house. The court denied this too. The jury found that K & L was in breach of contract and awarded damages to the Lenos.

    The North Dakota Supreme Court noted that K & L Homes gave “warranties that the home had been built according to local building codes and laws, and that the house was fit for its particular purpose as a residence.” The court found that a defective home breached this warranty. Further, the home violated an implied warranty of fitness.

    The district court had denied K & L’s request to inspect the home, as the discovery period had ended and it would not give the Lenos time to do further discovery of their own. At the time of the request, there was only twenty-two days before the trial. The Supreme Court ruled that this was not an abuse of discretion of the part of the district court.

    The Lenos had requested that Moldenhauer’s testimony not be permitted, as it would “have the same effect as if the court had granted K & L Homes’ pretrial request for inspection.” K & L Homes agreed to this in court, replying, “okay.”

    The decision affirms the judgment of the district court and the damages awarded to the Lenos by the jury.

    Read the court’s decision…


    US Courts in Nevada Busy with Yellow Brass

    August 2, 2012 — CDJ Staff

    Judge Robert C. Jones, the chief judge of the United States District Court of Nevada, and Judge Peggy A. Leen, a magistrate judge with the same court, have issued orders in cases involving allegations of high-zinc yellow brass plumbing components. Judge Jones issued orders on Waterfall Homeowners Association v. Viega, Inc. and Greystone Nevada, LLC v. Anthem Highlands Community Association on July 9, 2012. Judge Leen issued orders on Southern Terrace Homeowners Association v. Viega, Inc. on July 10, and The Seasons Homeowners Association, Inc. v. Richmond American Homes of Nevada, Inc. on July 19.

    Chief Judge Jones held an omnibus hearing on Waterfall v. Viega on June 12. During that hearing “Chief Judge Jones had already agreed that the claims against the product manufacturers should be be severed from the majority of the other claims and that discovery should proceed on different tracks.” Judge Leen ordered that the Southern Terrace claims be referred to Chief Judge Jones to determine if it should be consolidated with other yellow brass cases.

    Chief Judge Jones’s decision in Greystone Nevada rests on issues of whether the affected homeowners had signed arbitration agreements. The judge found that the “Defendant’s claims that the seven homeowners they have identified are subsequent purchasers who need not arbitrate with Greystone is definitively refuted by the evidence.”

    Judge Leen cites the Greystone decision in her ruling on Seasons Homeowners Association v. Richmond American Homes of Nevada. Richmond seeks to compel individual arbitration, stating that “the arbitration clause used singular rather than plural terms, and therefore, class arbitration was foreclosed.” Judge Leen determined that “under Nevada law, a homeowners association has statutory authority to represent homeowners associations in these types of actions. She did, however, accept Richmond’s argument that they could compel arbitration.

    The Waterfall order involves an attempt by two homeowners associations to seek a class action against seventeen defendants, the first twelve of whom are described as “the Viega Defendants” and “the Uponor Defendants.” Chief Judge Jones notes that “many of these Defendants have been sued in identical class actions by the same law firms, but with different named defendants.” The homeowner association seek to “represent their own 998 members directly but also wish to represent up to 10,000 homeowner associations representing up to 250,000 similarly situated homeowner members throughout the Las Vega area via this class action.”

    The judge has denied the Viega Defendants’ attempt to deny class certification, noting that the plaintiffs “argue that they intend to argue for class certification under Rule 23(b)(3). He also denied the motions by the two groups of the Viega Defendants. The U.S. Viega Defendants sought to be dismissed from the case for a variety of reasons. The judge noted of the claim that the plaintiffs had no injury of fact and are not alleging actual damage is contradicted by the allegations of actual damage made by the plaintiffs. ”They have alleged that the parts are defective and have already begun to corrode in at least a few sample circumstances, even if they have not yet failed.” To the argument that there re not particular claims made against defendants, the judge notes, “it is clear from the Complaint which Defendants are alleged to have manufactured and sold which brands of allegedly defective products, and which Defendants are alleged to have installed them.”

    The German Viega firms also sought to be dismissed from the suit, noting that “they have no property, employees, accounts, advertisements, etc. in Nevada and have not sold any products in Nevada.” However, the judge notes that “at least Waterfall, and perhaps Red Bluff, was still under construction when Viega, Inc. became the sole shareholder of Vanguard Industries, Inc.”

    Finally, both of Chief Judge Jones’s rulings cite a related case in the U.S. District Court for the District of Minnesota involving a class action settlement for those with F1807 systems. He notes in both these cases that “Plaintiffs disclaimed any claims based upon F1807 components.”

    Read the courts' decisions…

    Waterfall Homeowners Association v. Viega, Inc.

    Greystone Nevada, LLC v. Anthem Highlands Community Association

    Southern Terrace Homeowners Association v. Viega, Inc.

    The Seasons Homeowners Association, Inc. v. Richmond American Homes of Nevada, Inc.


    Drug Company Provides Cure for Development Woes

    November 18, 2011 — CDJ Staff

    Vertex Pharmaceuticals is poised to become the holder of Boston’s biggest commercial lease, paying $72.5 million for 1.1 million square feet on Boston’s waterfront. Vertex’s new buildings are still under construction, but the plans have spurred other development in the Fan Pier area, according to the New York Times. The Times quotes Mary A. Burke, a senior economist at the Federal Reserve Bank of Boston that the Vertex project gives “a big push” to the “momentum for economic growth.”

    The Fallon Company is building Vertex’s new laboratory and office space. They are separately planning to build a high-rise with 150 luxury condominium units. According to Joseph Fallon, the chief executive and president of the Fallon Company, there is already a waiting list of 50 buyers for the condominiums.

    Across the street from the Vertex site, a group including Morgan Stanley and Boston Global Investors is planning a 23-block mixed use project that would include 1.2 million square feet of retail space. Additionally, the New England Development and the Hanover Group is building a 356-unit apartment building at the adjacent Pier 4.

    Read the full story…


    Former Zurich Executive to Head Willis North America Construction Insurance Group

    March 1, 2012 — CDJ Staff

    Insurance Journal reports that Sean McGroarty will be directing surety operations for their construction practice in North America. Previously, Mr. McGroarty was the senior vice president and head of international surety with Zurich Financial Services. He has also worked for Liberty Mutual Group and the St. Paul Companies.

    Mr. McGroarty will be leading a team of professionals offering brokerage services for contract and commercial surety.

    Read the full story…


    Montrose Language Interpreted: How Many Policies Are Implicated By A Construction Defect That Later Causes a Flood?

    March 17, 2011 — By Shaun McParland Baldwin, March 17, 2011

    The Court of Appeals of Indiana recently addressed the “Montrose” language added to the CGL ISO form in 2001 in the context of a construction defect claim where a fractured storm drain caused significant flooding a year after the drain was damaged. The insuring agreement requires that “bodily injury” or “property damage” be caused by an “occurrence” and that the “bodily injury” or “property damage” occur during the policy period. The Montrose language adds that the insurance applies only if, prior to the policy period, no insured knew that the “bodily injury” or “property damage” had occurred in whole or in part. Significantly, it also states that any “bodily injury“ or “property damage” which occurs during the policy period and was not, prior to the policy period known to have occurred, includes a continuation, change or resumption of that “bodily injury” or “property damage” after the end of the policy period.

    In Grange Mutual Cas. Co. v. West Bend Mut. Ins. Co., No. 29D04-0706-PL-1112 (Ct. App. IN March 15, 2011), http://www.ai.org/judiciary/opinions/pdf/03151109ehf.pdf, Sullivan was the General Contractor for a school construction project. Its subcontractor, McCurdy, installed the storm drain pipes. One of the storm pipes was fractured in 2005 while McCurdy was doing its installation work. More than a year later, the school experienced significant water damage due to flooding. It was later discovered that the flooding was due to the fractured storm drain. Sullivan’s insurer paid $146,403 for the water damage. That insurer brought a subrogation claim against McCurdy and its two insurers: West Bend and Grange. West Bend had issued CGL coverage to McCurdy while the construction was ongoing , including the date in which the storm pipe was fractured. Grange issued CGL coverage to McCurdy at the time of the flooding. Those two carriers jointly settled the subrogation claim and then litigated which insurer actually owed coverage for the loss. Significantly, the loss that was paid included only damages from the flooding, not any damages for the cost of repairing the pipe.

    Read the full story...

    Reprinted courtesy of Shaun McParland Baldwin of Tressler LLP. Ms Baldwin can be contacted at sbaldwin@tresslerllp.com


    Australian Developer Denies Building Problems Due to Construction Defects

    June 15, 2011 — CDJ Staff

    The Sunland Group, the developer, is objecting to claims that it is responsible for corrosion damage in a residential building in Gold Coast, Australia, as reported in the Courier & Mail. Residents of Q1, the world’s tallest residential tower, are suing the developer, claiming that defects and corrosion “compromise the long-term durability and appearance of” the six-year-old building.

    The developer has not only denied that there are defects in the building, but has also stated that the construction contract “did not warrant that the construction would be defects-free.” Sunland claimed that corrosion was due to the homeowners association having “failed to carry out the maintenance requirements.”

    Repair of the building is expected to cost millions of dollars. Sunland denies that it should pay any of that.

    Read the full story…


    No Duty to Indemnify When Discovery Shows Faulty Workmanship Damages Insured’s Own Work

    November 7, 2012 — Tred Eyerly, Insurance Law Hawaii

    Our post last week addressed the duty to defend when alleged faulty workmanship caused loss to property adjacent to where the insured was working. See Pamerin Rentals II, LLC v. R.G. Hendricks & Sons Constr., Inc., 2012 Wis. App. LEXIS 698 (Wis. Ct. App. Sept. 5, 2012) [post here]. Today, we report on recent developments in the same case where the court determined, despite earlier finding the insurer owed a defense, it had no duty to indemnify. Pamperin Rentals II, LLC v. R.G. Hendricks & Sons Constr., Inc., 2012 Wisc. App. LEXIS 793 (Wis. Ct. App. Oct. 10, 2012).

    Hendricks contracted to “prepare the site and supply and install concrete, tamped concrete, and colored concrete” at several service stations. The owner sued Hendricks, alleging the concrete “was defective and/or the work performed was not done in a workman-like manner and resulted in damages, and will require replacement.”

    Pekin Insurance Company agreed to defend Hendricks subject to a reservation of rights.

    Read the full story…

    Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com


    In Re Golba: The Knaubs v. Golba and Rollison, Debtors

    June 19, 2012 — Brady Iandiorio

    Now comes another cautionary tale for builders and developers, especially those using single purpose business entities to handle individual construction projects. The United States Bankruptcy Court in Denver, Colorado, through the Honorable Michael Romero, provided an order regarding plaintiffs’ problems with a home they purchased from an entity controlled or represented by defendants. Plaintiffs, Kelvin and Holly Knaub (the “Knaubs”) filed adversary proceedings against debtor Robert Golba in his bankruptcy proceeding and against debtor Greg Rollison in his separate bankruptcy proceeding. The adversary proceedings were partially consolidated to proceed in parallel but not substantively.

    The Knaubs purchased a home from Gemm Homes (“Gemm”) in May 2003. Problems stemming from the foundation caused the Knaubs to seek an explanation and ultimately a solution from Gemm and then from Avalon Homes (“Avalon”), which the Knaubs claim is just a continuation of Gemm. Through their complaint, the Knaubs seek relief for 1) damages caused by fraudulent representations and false pretenses under 11 U.S.C. § 523(a)(2)(A), based on Golba’s misrepresentation that Gemm and Rollison were not involved in Avalon; 2) damages caused by actual fraud under § 523(a)(2)(A), based on Golba’s and Rollison’s alleged conspiracy fraudulently to convey the assets of Gemm to the Avalon entities; and 3) damages caused by breach of fiduciary duty under § 523(a)(4), alleging Gemm was an insolvent company which owed a fiduciary duty to its creditors, and alleging Golba participated in transferring Gemm’s assets to Avalon for no consideration. In the Golba action, the third claim for relief was dismissed.

    The facts of the case are important and somewhat convoluted. In an effort to make the cases clear, the evidence, allegations, and facts will be laid out in detail below. The Knaubs’ house was purchased from Gemm and soon after both Gemm and Rollison had an engineering company perform an analysis which discovered the foundation was not laid on stable ground.

    Read the full story…

    Reprinted courtesy of Brady Iandiorio, Higgins, Hopkins, McLain & Roswell, LLC. Mr. Iandiorio can be contacted at iandiorio@hhmrlaw.com


    Eleventh Circuit Asks Georgia Supreme Court if Construction Defects Are Caused by an "Occurrence"

    December 20, 2012 — Tred Eyerly, Insurance Law Hawaii

    The Eleventh Circuit certified a question to the Georgia Supreme Court, asking whether property damage can constitute an "occurrence" under a CGL policy where its effects are not felt on "other property." HDI-Gerling Am. Ins. Co. v. Morrison Homes, Inc., 2012 U.S. App. Ct. LEXIS 23813 (11th Cir. Nov. 19, 2012).

    The general contractor, Taylor Morrison Services, Inc., was covered by a CGL policy issued by Gerling.  The policy excluded "expected or intended injury," contractual liability," and business risk exclusions. Morrison was sued by homeowners in a class action suit. Morrison had allegedly omitted four inches of gravel required beneath the base of the concrete foundations by the Uniform Building Code. Thereafter, the houses sustained water intrusion, cracks in the floors and driveways, and warped and buckling flooring.

    Gerling defended, but sued Morrison for a declaratory judgment.

    Read the full story…

    Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com


    OSHA Extends Temporary Fall Protection Rules

    March 1, 2012 — CDJ Staff

    OSHA announced that its current rules on fall protection for residential construction will remain in place until September 15, 2012. The current measures became effective in June 2011. Under the new rules, falls must be prevented by fall protection measures unless the measures can be shown to be unfeasible or even hazardous.

    Under the extension of the temporary enforcement measures, contractors who ask for compliance assistance with OSHA are given top priority and penalties can be reduced. OSHA has conducted more than 1,000 outreach sessions on the new rules.

    Read the full story…