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    West Virginia Builders Right To Repair Current Law Summary:

    Current Law Summary: SB440: Requires builders notify homeowners with Notice to consumer required; response to claim within 30 days and negotiations to conclude within 90 days.


    Construction Expert Witness Contractors Licensing
    Guidelines Charleston West Virginia

    In 1991, the West Virginia Legislature adopted into law Chapter 21, Article 11 of the State Code. This law was established to set specific professional guidelines for contractors as well as to protect state businesses and consumers who utilize their services. The new law paved the way for creation of the Contractor Licensing Board which is made up of state businessmen, contractors and construction specialists.


    Construction Expert Witness Contractors Building Industry
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    Home Builders Association of West Virginia (State)
    Local # 5000
    2220 Washington St. E Ste 1
    Charleston, WV 25311
    http://www.hbawv.org

    Home Builders Association of Greater Charleston
    Local # 5018
    PO Box 8616
    South Charleston, WV 25303
    http://www.hbagc.org

    Tri State Home Builders Association
    Local # 5036
    PO Box 376
    Barboursville, WV 25504
    http://www.tristatehba.com

    Greater Greenbrier Valley Home Builders Chapter
    Local # 5027
    PO Box 180
    Frankford, WV 24938


    Midwestern Chapter Of National Associated Home Builders
    Local # 5040
    110 Pleasant Colony Dr
    Evans, WV 25241


    Potomac Highlands Chapter of National Associated Home Builders
    Local # 5030
    PO Box 452
    Mathias, WV 26812


    Home Builders Association of Southern W Virginia
    Local # 5080
    PO Box 667
    Beckley, WV 25802



    Construction Expert Witness News and Information
    For Charleston West Virginia

    Joinder vs. Misjoinder in Colorado Construction Claims: Roche Constructors v. One Beacon

    New OSHA Fall Rules to Start Early in Minnesota

    Wisconsin “property damage” caused by an “occurrence.”

    Court Rejects Anti-SLAPP Motion in Construction Defect Suit

    Nevada Bill Aims to Reduce Legal Fees For Construction Defect Practitioners

    Contractor Burns Down Home, Insurer Refuses Coverage

    Coverage for Construction Defects Barred by Business Risk Exclusions

    Insurance Policy Provides No Coverage For Slab Collapse in Vision One

    Water Drainage Case Lacks Standing

    Washington Court Limits Lien Rights of Construction Managers

    Can We Compel Insurers To Cover Construction Defect in General Liability Policies?

    Unlicensed Contractors Nabbed in Sting Operation

    Hovnanian Increases Construction Defect Reserves for 2012

    MGM Seeks to Demolish Harmon Towers

    Construction Law: Unexpected, Fascinating, Bizarre

    Faulty Workmanship Causing Damage to Other Property Covered as Construction Defect

    Badly Constructed Masonry Walls Not an Occurrence in Arkansas Law

    SB800 Cases Approach the Courts

    Harmon Hotel Construction Defect Update

    State Farm Too Quick To Deny Coverage, Court Rules

    Construction Workers Unearth Bones

    Arizona Court of Appeals Decision in $8.475 Million Construction Defect Class Action Suit

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

    Appropriation Bill Cuts Military Construction Spending

    Certificate of Merit to Sue Architects or Engineers Bill Proposed

    Record-Setting Construction in Fargo

    No Resulting Loss From Deck Collapsing Due to Rot

    Illinois Court Determines Insurer Must Defend Property Damage Caused by Faulty Workmanship

    Mandatory Arbitration Provision Upheld in Construction Defect Case

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

    Plans Go High Tech

    Safety Officials Investigating Death From Fall

    Workers Hurt in Casino Floor Collapse

    More Charges in Las Vegas HOA Scandal

    Construction Defect Bill Introduced in California

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

    Battle of “Other Insurance” Clauses

    Excess Carrier Successfully Appeals Primary Insurer’s Summary Judgment Award

    Seller Cannot Compel Arbitration for Its Role in Construction Defect Case<

    Tennessee Court: Window Openings Too Small, Judgment Too Large

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

    General Contractor/Developer May Not Rely on the Homeowner Protection Act to Avoid a Waiver of Consequential Damages in an AIA Contract

    Developer’s Fraudulent Statements Are His Responsibility Alone in Construction Defect Case

    Summary Judgment in Construction Defect Case Cannot Be Overturned While Facts Are Still in Contention in Related Cases

    West Hollywood Building: Historic Building May Be Defective

    Another Las Vegas Tower at the Center of Construction Defect Claims

    Granting Stay, Federal Court Reviews Construction Defect Coverage in Hawaii

    Window Manufacturer Weathers Recession by Diversifying

    Arbitrator May Use Own Discretion in Consolidating Construction Defect Cases

    Foundation Arbitration Doesn’t Preclude Suing Over Cracks

    Lawsuit over Construction Defects Not a Federal Case

    Supreme Court of Oregon Affirms Decision in Abraham v. T. Henry Construction, et al.

    Eighth Circuit Remands to Determine Applicability of Collapse Exclusion

    State Audit Questions College Construction Spending in LA

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

    Ohio “property damage” caused by an “occurrence.”

    Hawaii Building Codes to Stay in State Control

    Nebraska Man Sentenced for Insurance Fraud in Construction Projects

    New Washington Law Nixes Unfair Indemnification in Construction Contracts

    Bill Seeks to Protect Legitimate Contractors

    A Call to Washington: Online Permitting Saves Money and the Environment

    Limitations of Liability in Subcontractors’ Contracts May Not Be Enforceable in Colorado to Limit Claims by Construction Professionals.

    Home Sales Still Low, But Enough to Spur Homebuilders

    Sometimes It’s Okay to Destroy Evidence

    Houses Can Still Make Cents: Illinois’ Implied Warranty of Habitability

    David McLain to Speak at the CDLA 2012 Annual Conference

    Building Inspector Jailed for Taking Bribes

    Defense for Additional Insured Not Barred By Sole Negligence Provision

    Minnesota Starts Wide-Ranging Registration of Contractors

    Town Files Construction Lawsuit over Dust

    A Loud Boom, But No Serious Injuries in World Trade Center Accident

    Homeowners Not Compelled to Arbitration in Construction Defect Lawsuit

    After Construction Defect Case, Repairs to Austin Building

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

    Coverage Rejected Under Owned Property and Alienated Property Exclusions

    Insurer Able to Refuse Coverage for Failed Retaining Wall

    Pictorial Construction Terminology Dictionary — A Quick and Helpful Reference

    Colorado “property damage” caused by an “occurrence” and exclusions j(5) and j(6) “that particular part”

    Nevada Senate Rejects Construction Defect Bill

    Driver’s Death May Be Due to Construction Defect

    New Safety Standards Issued by ASSE and ANSI

    Another Guilty Plea in Las Vegas HOA Scandal

    US Courts in Nevada Busy with Yellow Brass

    Las Vegas Home Builder Still in Bankruptcy

    California Construction Bill Dies in Committee

    Congress Addresses Homebuilding Credit Crunch

    Nevada Supreme Court Reverses Decision against Grader in Drainage Case

    Federal Judge Dismisses Insurance Coverage Lawsuit In Construction Defect Case

    Condo Owners Allege Construction Defects

    History of Defects Leads to Punitive Damages for Bankrupt Developer
    Corporate Profile

    CHARLESTON WEST VIRGINIA CONSTRUCTION EXPERT WITNESS
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    The Charleston, West Virginia 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.

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    Charleston, West Virginia

    LEED Certified Courthouse Square Negotiating With Insurers, Mulling Over Demolition

    June 6, 2011 — Douglas Reiser in the Builders Counsel Blog

    Apparently, Courthouse Square is still unresolved. The County hasnow hired an attorney to handle its insurance claim against Affiliated FM. Is there a lawsuit coming?

    Right now, no lawsuit is expected. According to officials, the insurer has been acting in good faith. But, its been quite a while since Salem officials learned that the Courthouse Square building had significant concrete issues that would result in probable demolition of the LEED certified building.

    If you have yet to hear about Courthouse Square, let me fill you in briefly. The Salem building was substantially completed in 2000 and LEED certified by the US Green Building Council in 2002. The project cost more than $30 Million to complete and the building was revered for its innovation as a crowning achievement for city leaders.

    But, structural problems in the building’s core were discovered as early as 2002, writes Chris Cheatham of Green Building Law Update. Final tests earlier in the year, determined that the building had to be vacated. The building has been clear since July 2010.

    Read the full story…

    Reprinted courtesy of Douglas Reiser of Reiser Legal LLC. Mr. Reiser can be contacted at info@reiserlegal.com


    Coverage Exists Under Ensuing Loss Provision

    July 10, 2012 — Tred Eyerly, Insurance Law Hawaii

    Finding coverage under the ensuing loss provision, the Washington Supreme Court overruled a Court of Appeals decision we previously reported here. Vision One, LLC v. Philadelphia Indem. Ins. Co., 276 P.3d 300 (Wash. 2012).

    Vision developed a condominium project. Before concrete was poured, a subcontractor supplied the shoring to temporarily support the poured concrete slabs. After the shoring installation was completed, concrete was poured on the first floor. When the pouring was finished, the shoring gave way. The framing, rebar and newly poured concrete came crashing down onto the the lower level parking area, where the wet concrete eventually hardened. It took several weeks to clean up the debris and repair the damage.

    Vision had a builders’ risk policy with Philadelphia. The policy excluded losses caused by or resulting from deficient design or faulty workmanship. Collapse, however, was not listed as an excluded event. Further, the exclusion for faulty workmanship contained a resulting loss clause providing that "if loss or damage by a Covered Cause of Loss results, [Philadelphia] will pay for the loss or damage caused by that Covered Cause of Loss."

    Philadelphia denied coverage under the faulty workmanship exclusion.

    Read the full story…

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


    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…


    Insurer’s Motion for Summary Judgment Based on Earth Movement Exclusion Denied

    October 28, 2011 — Tred Eyerley, Insurance Law Hawaii

    After carefully dissecting the earth movement exclusion, the court denied the insurer’s motion for summary judgment. High Street Lofts Condominium Assoc., Inc. v. Am. Family Mut. Ins. Co., 2011 U.S. Dist. LEXIS 109043 (D. Colo. Sept. 26, 2011).

    The City of Boulder performed road repair work near High Street’s property, some of which involved the use of a vibrating compactor to compact and set the roadbed. High Street noticed damage to its building, such as cracks in walls, sloping of floors and separations of porches from the building itself. High Street contacted the City of Boulder, who forwarded the complaint to its contractor, Concrete Express, Inc.

    High Street also filed a claim with its business insurer, American Family, who denied the claim. American Family relied on an opinion letter by High Street’s engineer. The letter indicated that the damage was the result of "soil consolidation/settlement," in response to the construction activities. Based on this letter American Family concluded the claim was excluded under the policy’s earth movement exclusion.

    High Street sued American Family, who moved for summary judgment.

    Read the full story...

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


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

    April 28, 2011 — April 28, 2011 Beverley BevenFlorez - Construction Defect Journal

    In the construction defect suit Kikirov v. 355 Realty Associates, LLC, et al., the Supreme Court of the State of New York granted a dismissal of the plaintiff’s fourth cause of action, but denied the defendants’ motion in all other respects. The plaintiff alleged breach of contract, among other claims. “355 Realty was the sponsor of 355 Kings Highway Condominium, a condominium project located at 355 Kings Highway, in Brooklyn, New York. The condominium units were allegedly marketed as ‘ultra luxury condos,’ and a ‘Manhattan style condominium building,’ which would be the ‘epitome of luxury and quality.’ The construction of the six-story 28 unit residential condominium building began in approximately November 2003. […] Plaintiff entered into a purchase agreement, dated December 21, 2005, with 355 Realty (which was executed on behalf of 355 Realty by Michael Marino, as its member) for the purchase of Unit 2G in the building.”

    The plaintiff alleged that construction defects emerged soon after moving into the unit: “After taking occupancy of his condominium unit, plaintiff allegedly experienced serious leakage and moisture problems in his unit, which caused a dangerous mold condition to develop, in addition to causing actual damage to the structural elements of his unit. According to plaintiff, the walls, moldings, and wood floors of his unit are constantly wet and moist, and there is severe buckling of the wood floors. Plaintiff claims that these problems have caused his unit to be uninhabitable. Plaintiff alleges that he has been forced to remove all of his personal belongings from his unit and has been unable to occupy his unit.”

    According to the plaintiff, Foremost attempted to repair the defects, but only made the situation worse: “Specifically, plaintiff asserts that Foremost’s contractors opened his walls to remove the stained drywall, but never corrected the cause of the leaks, destroyed the walls, and never properly taped and painted the sheet rock. Plaintiff alleges that Foremost repaired the openings in a defective manner. Plaintiff also claims that his floor was repaired at that time by a subcontractor hired by Foremost, but the basic structural problem was never resolved and the leaks continued, compromising the beams and causing the mold conditions, in addition to all of the physical damage present in the unit. On or about July 16, 2009, plaintiff allegedly sent a notice of the defects to 355 Realty and to the managing agent designated by the condominium board, by certified mail, return receipt requested. Plaintiff asserts that defendants have failed and refused to repair and remedy the defective condition, and that the damage is extensive and requires major structural repairs.”

    The plaintiff filed suit on May 4, 2010, and the original complaint asserted eight causes of action. “By decision and order dated September 13, 2010, the court granted a motion by defendants to dismiss plaintiff’s second cause of action for breach of implied covenants of good faith and fair dealing, his third cause of action for breach of implied warranties, his fifth cause of action for negligence as against 355 Realty, Michael Marino, Anthony Piscione, Ahron Hersh, and Toby Hersh, his seventh cause of action for negligence as against Vision, Foremost, and MMJ, and his eighth cause of action for violations of General Business Law § 349 and § 350, and granted plaintiff leave to replead his first cause of action for breach of contract as against 355 Realty, Michael Marino, Anthony Piscione, Ahron Hersh, and Toby Hersh, his fourth cause of action for breach of statutory warranties, and his sixth cause of action for breach of contract as against Vision, Foremost, and MMJ.”

    The plaintiff amended their complaint on October 18, 2010, and “has repleaded these three causes of action by asserting a first cause of action for breach of contract as against 355 Realty, Michael Marino, Anthony Piscione, Ahron Hersh, and Toby Hersh, a second cause of action for breach of statutory warranties, and a third cause of action for breach of contract as against Vision, Foremost, and MMJ. In addition, plaintiff, in his amended complaint, has added a fourth cause of action for fraud.”

    The defendants, on the other hand, “argue that each of the four causes of action alleged by plaintiff in his amended complaint fail to state a claim upon which relief may be granted, and that plaintiff’s amended complaint must be dismissed pursuant to CPLR 3211 (a) (7). Defendants also cite to CPLR 3211 (a) (1), and (5), asserting that dismissal is also required based upon documentary evidence and the Statute of Limitations contained in the limited warranty.” The defendants’ motion to dismiss the first cause of action, breach of contract against 355 Realty, was denied: “While defendants dispute that the alleged defects are actually structural in nature, plaintiff’s allegations as to their structural nature are sufficient, at this juncture, to withstand defendants’ motion to dismiss. Thus, dismissal of plaintiff’s first cause of action must be denied.”

    Next, the court reviewed the second cause of action, which was breach of statutory warranties: “Defendants’ motion also seeks dismissal of plaintiff’s second cause of action for breach of statutory warranties, which alleges that, under applicable law, including General Business Law § 777-a, et seq., the sponsor warranted to purchasers of units that the units would be constructed in a skillful, careful, and workmanlike manner, consistent with proper design, engineering, and construction standards and practices, and free of material latent, design, and structural defects. Defendants argue that General Business Law § 777-a, known as the housing merchant implied warranty, is inapplicable to this case because it is limited to the construction of a ‘new home,’ defined in General Business Law § 777 (5) as ‘any single family house or for-sale unit in a multi-unit residential structure of five stories or less.’ As noted above, the building in which plaintiff’s condominium unit is located is a six-story building.”

    The motion to dismiss the second cause of action is denied. The court provided this reasoning: “the full text of the offering plan has not been provided, the court is unable to examine the entire written agreement so as to determine the purpose of the inclusion of the text of General Business Law § 777.”

    In the third cause of action, the plaintiff alleges “a breach of contract claim as against Vision, Foremost, and MMJ based upon their contract with 355 Realty, pursuant to which they agreed to be the general contractors/construction managers for the condominium, to undertake oversight responsibility for the design and construction of the condominium, to prepare and/or review drawings, plans, and specifications for the condominium, and to otherwise manage and oversee the project. Plaintiff alleges that Vision, Foremost, and MMJ breached their contractual obligations in that the condominium units were improperly and inadequately designed and constructed, and completed in an incompetent and unworkmanlike manner, with material design and construction defects.”

    The motion to dismiss the third cause of action was denied as well: “Plaintiff alleges, in his amended complaint, that Vision, Foremost, and MMJ have acknowledged notice of the defects and have not denied that they are responsible for providing a warranty to plaintiff. Plaintiff also refers to this warranty, in his amended complaint, by noting that paragraph 16 of the purchase agreement stated that the ‘[s]eller shall not be liable to . . . the [p]urchaser for any matter as to which an assignable warranty . . . has been assigned . . . to [p]urchaser and in such case the sole recourse of such . . . [p]urchaser . . . shall be against the warrantor . . . except that in the event a contractor or subcontractor is financially unable or refuses to perform its warranty . . . [s]eller shall not be excused from its obligations enumerated in the [offering p]lan under Rights and Obligations of Sponsor.’ Consequently, the court finds that dismissal of plaintiff’s third cause of action as against Foremost and MMJ must also be denied.”

    In the fourth cause of action, the plaintiff alleges “that defendants made false statements and representations orally, in advertisements, and in the purchase agreement, that the condominium was properly and adequately designed and constructed and completed in a competent and workmanlike manner, in accordance with the condominium plans and specifications and proper design, engineering, and construction standards and practices consistent with applicable standards for a first class, luxury condominium in Brooklyn.”

    The court dismissed the fourth cause of action stating, “it must be dismissed because it is duplicative of his first cause of action for breach of contract.” Therefore, “defendants’ motion to dismiss plaintiff’s amended complaint is granted to the extent that it seeks dismissal of plaintiff’s fourth cause of action, and it is denied in all other respects.”

    Read the court’s decision…

    Minnesota Starts Wide-Ranging Registration of Contractors

    July 10, 2012 — CDJ Staff

    Minnesota has replaced its Independent Contractor Exemption Certificate program with the Contractor Registration Pilot Project, according to an article in the Martindale-Hubble Legal Library by Michael B. Lapicola. Mr. Lapicola notes that “it will be a violation of the law to contract with or perform construction services for another person without first being registered with the Pilot Project, or to contract with or pay another person to perform construction services if the other person is not registered with the Pilot Project. There are, however, quite a few exceptions, including those who are currently registered with the earlier program. Additionally, independent contractors who do not register can avoid the fine (up to $2,000) by registering within thirty days of fines being levied. Individuals and firms that do not perform building construction or improvements are exempt from the hiring aspects of the statute.

    Minnesota’s goal is to “assist state agencies to investigate employee misclassification in the building industry.” Employees of construction firms do not individually register. Rather, the intent of the of law is to stop those who would “require any individual through coercion, misrepresentation or fraudulent means to adopt independent contractor status” or to “knowingly misrepresent or misclassify an individual as an independent contractor.”

    Read the full story…


    Illinois Court Determines Insurer Must Defend Property Damage Caused by Faulty Workmanship

    July 11, 2011 — Tred R. Eyerly, Insurance Law Hawaii

    The Illinois Court of Appeals determined the insurer must defend allegations of property damage arising from faulty workmanship. Milwaukee Mut. Ins. Co. v. J.P. Larsen, Inc., 2011 Ill. App. Unpub. LEXIS 1443 (Ill. Ct. App. June, 20, 2011).

    Larsen was a subcontractor for Weather-Tite in a condominium building. Weather-Tite installed windows on the project and hired Larsen to apply sealant to the windows. The windows subsequently leaked and caused water damage within the complex.

    The homeowner’s association sued Weather-Tite for breach of express and implied warranties. Weather-Tite filed a third-party complaint against Larsen, seeking contribution and alleging that Larsen was in breach of contract by failing to add Weather-Tite as an additional insured under Larsen’s CGL policy.

    Both Weather-Tite and Larsen tendered to Larsen’s insurer. Both tenders were denied because the insurer contended the complaints alleged only construction defects, and not “property damage” or an “occurrence” within the terms of the policy.

    The insurer filed suit for a declaratory judgment. The trial court granted the insurer’s motion as to Weather-Tite, but granted Larsen’s cross-motion for summary judgment.

    Read the full story…

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


    Defense for Additional Insured Not Barred By Sole Negligence Provision

    August 11, 2011 — Tred Eyerly, Insurance Law Hawaii

    A general contractor was entitled to a defense as an additional insured when the underlying complaint did not allege it was solely negligent. A-1 Roofing Co. v. Navigators Ins. Co., 2011 Ill. App. LEXIS 656 (Ill. Ct. App. June 24, 2011).

    A-1 was the general contractor for a roof resurfacing job at a high school. Jack Frost Iron Works Inc. (“Frost”) was one of A-1’s subcontractors. Frost had a CGL policy with Navigators Insurance Company under which A-1 was an additional insured.

    An employee of Frost’s subcontractor Midwest Sheet Metal Inc. was killed at the job site when a boom-lift he was operating flipped over. The boom-lift had been leased by another Frost subcontractor, Bakes Steel Erectors, Inc. (BSE). The deceased's estate filed suit against A-1, BSE and two other defendants.

    Read the full story…

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


    No “Special Relationship” in Oregon Construction Defect Claim

    July 10, 2012 — CDJ Staff

    Writing on his firm’s blog, Justin Stark discusses recent changes in construction defect claims in Oregon where, as he points out, “courts in Oregon have been lowering legal hurdles that construction defect plaintiffs must overcome in bringing their cases.” He cites a case in which water damage was discovered more than six years after construction was complete. The owners claimed breach of contract and negligence. The trial court found for the contractor, who argued “that there was no ‘special relationship’ with the owners that could support the negligence claim.”

    This was overturned on appeal, with the court concluding that if there was a violation of the building code, then the negligence claim could stand. This was appealed to the Oregon Supreme court which concluded that “neither a special relationship nor a statutory standard of care, such as the building code, is necessary to bring a negligence claim here.”

    Stark notes that “many forms of construction contract incorporate the phrase ‘workmanlike,’ which implicates the ‘common law standard of care’ in negligence law.

    Read the full story…


    General Contractors Must Plan to Limit Liability for Subcontractor Injury

    May 18, 2011 — May 18, 2011 - Douglas Reiser in the Builders Counsel Blog

    It takes more than a hard hat, but safety checks, a good policy and a smart contract might save you some problems.If you are a general contractor, you will want to pay close attention to this article. A new Washington appellate decision showcases a general contractor’s liability to subcontractors who are injured on the job, when security barriers fail. But can a general limit this liability? Will its contract help?

    In Wrought Corporation, Inc., Appellant V. Mario Interiano (quick note: this opinion is unpublished, but we are here to talk about an issue that was not determined on appeal – WISHA compliance), a subcontractor was injured when a security barrier failed and he fell into an elevator shaft.

    A jury awarded a $1.56 million verdict against the general contractor, and the court of appeals affirmed on the basis that the general contractor has a non-delegable duty to ensure compliance with the Washington Industrial Safety and Health Act of 1973, codified under RCW 49.17 (WISHA).

    Read the full story…

    Reprinted courtesy of Douglas Reiser of Reiser Legal LLC. Mr. Reiser can be contacted at info@reiserlegal.com


    Dust Infiltration Due to Construction Defect Excluded from Policy

    September 9, 2011 — CDJ Staff

    A summary judgment was affirmed in the case of Brown v. Farmers Group, by the California Court of Appeals. The Browns bought a new home in Oakley, California. At the time, they signed disclosure statement “acknowledging that the area around their home experienced gusty winds and would be in development for years to come, which might result in dust and airborne mold.”

    The Browns found an unusual amount of dust in their home, which became worse when they ran their heating and air conditioning system. Shelia Brown was later diagnosed with chronic valley fever, which was attributed to airborne mold. The Browns contacted Farmers which investigated the house. Although the adjustor from Farmers said the Browns would be covered, Farmers denied the claim.

    After the Browns moved out of the house, an inspector found that the HVAC line in the attic was disconnected, sending dust into the home. The Browns brought action against Mid-Century Insurance, which managed the policy, and Farmers. The identified the HVAC defect, window problems, and valley fever as causes, suing for breach of contact, breach of implied covenant of good faith and fair dealing, and the intentional infliction of emotional distress.

    The court rejected all these claims. The policy with Farmers excluded losses due to defective construction. This ruled out the faulty HVAC system and any problems there might have been from the windows. The policy also specifically excluded losses from contamination, fungi, pathogens, and noxious substances. The court further found that the adjustor’s opinion was irrelevant to the question of what the policy actually covered. Finally, the court found no evidence of intentional infliction of emotional stress.

    On review, the appeals court upheld the trial court’s conclusions and affirmed the summary judgment.

    Read the court’s decision…


    Late Filing Contractor Barred from Involving Subcontractors in Construction Defect Claim

    March 1, 2012 — CDJ Staff

    The Colorado Court of Appeals looked at that state’s Construction Defect Action Reform Act in determining if a general contractor could add subcontractors as third-party defendants to a construction defect lawsuit. Shaw Construction, LLC was the general contraction of the Roslyn Court condominium complex, and was sued by the homeowners’ association in a construction defect case. United Builder Services was the drywall subcontractor on the project. MB Roofing had installed roofs, gutters, and downspouts. The certificate of occupancy for the last building was issued on March 10, 2004. The project architect certified completion of all known remaining architectural items in June, 2004.

    The HOA filed a claim against the developers of the property on January, 21, 2009. A week later, the HOA amended its complaint to add Shaw, the general contractor. Shaw did not file its answer and third-party complaint until March 29, 2010, sending its notice of claim under the CDARA on March 30.

    The subcontractors claimed that the six-year statute of limitations had ended twenty days prior. Shaw claimed that the statute of limitations ran until six years after the architect’s certification, or that the HOA’s suit had tolled all claims.

    The trial court granted summary judgment to the subcontractors, determining that “substantial completion occurs ‘when an improvement to real property achieves a degree of completion at which the owner can conveniently utilize the improvement of the purpose it was intended.’”

    The appeals court noted that “Shaw correctly points out that the CDARA does not define ‘substantial completion.’” The court argued that Shaw’s interpretation went against the history and intent of the measure. “Historically, a construction professional who received a complaint responded by ‘cross-nam[ing] or add[ing] everybody and anybody who had a part to play in the construction chain.’” The court concluded that the intent of the act was to prevent unnamed subcontractors from being tolled.

    The court further rejected Shaw’s reliance on the date of the architect’s certification as the time of “substantial completion,” instead agreeing with the trial court that “the architect’s letter on which Shaw relies certified total completion.”

    The appeals court upheld the trial court’s determination that the statute of limitation began to run no later than March 10, 2004 and that Shaw’s complaint of March 29, 2010 was therefore barred. The summary judgment was upheld.

    Read the court’s decision…


    Loose Bolts Led to Sagging Roof in Construction Defect Claim

    February 10, 2012 — CDJ Staff

    Though the sagging roof is neither leaking nor a safety hazard, the town of Waynesville, North Carolina is suing the builder of its new fire station, as reported in the Smoky Mountain News. The engineers who examined the roof found a substantial number of loose bolts in the roof trusses. Additionally, the trusses themselves have become bent.

    Tom Galloway, Waynesville’s Town Manager said “it needs to be remedied and fixed.” He said that the builder, Construction Logic, “never indicated a willingness to fix the roof.” The town is seeking the cost of repair, which Galloway estimated could be $400,000, and an additional $30,000 in damages. The suit states that Construction Logic failed to follow the plan specifications for the roof.

    Read the full story…


    Construction Workers Unearth Bones

    June 28, 2011 — CDJ Staff

    While digging for a new steam line at Eastern Michigan University, workers unearthed some old bones. Experts have yet to determine if the bones are human or animal, however Walter Kraft, the EMU vice president of communications, noted that a handle also unearthed might have come from a casket. Cindy Heflin, reporting in AnnArbor.com notes that until 1900 a Catholic cemetery was located in the area. Although the bodies were relocated, these may have been left behind.

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    Nevada Assembly Sends Construction Defect Bill to Senate

    June 6, 2011 — CDJ Staff

    In a 26 to 16 vote, the Nevada Assembly has passed Assembly Bill 401, which extends the time limit for legal action over home construction defects. According to the Las Vegas Sun, Assembly member Marcus Conklin, Democrat of Las Vegas, said the bill was about “keeping the consumer whole.” However, Ira Hansen, Republican of Sparks, told the sun that suits are happening before contractors can make repairs. The bill would allow attorney fees even if repairs are made.

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    Eighth Circuit Remands to Determine Applicability of Collapse Exclusion

    January 6, 2012 — Tred Eyerly, Insurance Law Hawaii

    The Eighth Circuit determined a jury instruction regarding the applicability of the "all-risk" policy’s exclusion for "collapse" was inadequate. See KAAPA Ethanol, LLC v. Affiliated FM Ins. Co., 2011 U.S. App. LEXIS 22158 (8th Cir. Nov. 3, 2011).

    KAAPA had nine large, cylindrical, stainless steel tanks fabricated at its location. Soon after operations began in 2003, some of the tanks experienced unusual movement and began to shift. A geotechnical engineer found "silty clay" had been used for infill instead of compacted granular fill called for in engineering drawings. A year long plan to repair all nine tanks was implemented.

    Affiliated’s "all-risk" policy excluded damage caused by faulty workmanship. It also excluded damage caused by settling or cracking. The settling exclusion went on to provide, "This exclusion will not apply to loss or damage resulting from collapse of: a building or structure; or material part of a building or structure." Affiliated denied coverage because of the faulty workmanship and settling exclusions.

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


    Homeowners Sue Over Sinkholes, Use Cash for Other Things

    January 6, 2012 — CDJ Staff

    Quoting one homeowner as saying that his house “can fall in the ground for all I care, I made my money,” the Tampa Bay Times looks at the issue of sinkhole claims in Florida. Homeowners “have paid off mortgages, put in pools, replaced roofs, or otherwise used money from sinkhole claims to do something besides fix sinkhole damage.

    It’s been tough for insurance companies. Citizens Property Insurance took in $32 million in premiums for sinkhole coverage in 2010, but paid out $245 million in sinkhole claims. The Tampa Bay Times notes that some of those claims come from settling problems caused by their repairs, including one settlement of $350,000 for repairs to a house worth $39,000.

    One couple, after receiving $217,000 from Citizens, sold the house to a company that bought unrepaired sinkhole homes for $190,000. The home has been sold since and remains unrepaired.

    Sometimes the preferred solution by the insurance company isn’t the cheapest either. One couple was informed that Citizens was going to spend $150,000 to have the hole filled with grout. After they settled with the insurance company, they fixed the problem by installing steel piers, at a cost of about $45,000.

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    New Households Moving to Apartments

    December 20, 2012 — CDJ Staff

    The New York Times reports that multifamily construction?Äîapartment buildings?Äîis leading the recovery in construction. Construction of single-family homes is only a third of the way up from its fall from its earlier heights, while multifamily construction has recovered two-thirds of its peak. Young adults are moving out of their parents’ homes, but instead of buying homes, they’re renting apartments.

    Houston is adding thousands of new units, leading to a fear of overbuilding. Rents have been rising, but as the supply of apartment units rises, higher rents may be unsustainable. However, during the recession, young adults did not move out of their parents’ homes, leading to about two million doubled-up households. David Crowe, the chief economist of the National Association of Home Builders, noted that “all of the net addition to households since 2004 has been in rentals.”

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