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    Construction Expert Witness Builders Information
    Cibolo, Texas

    Texas Builders Right To Repair Current Law Summary:

    Current Law Summary: HB 730 amended the Texas Property Code by adding Title 16 and amending chapter 27. Overseen by the Texas Residential Construction Commission (TRCC) the code asserts that a contractor is not liable for any percentage of damages caused by failure to take reasonable action to mitigate damages or take reasonable action to maintain the residence. It also limits damages, requires written notification and response for right of repair and defines warranty periods. Additionally, SB 754 states“(5-10 Sec. 27.107) a contractor may assert as an affirmative defense to an allegation of a defect made in a complaint filed under this subchapter that the defect is the result of abuse, neglect, or unauthorized modifications or alterations of the home.”


    Construction Expert Witness Contractors Licensing
    Guidelines Cibolo Texas

    No state license is required, however, general contractors must get permits at the local level. Separate boards license HVAC, and plumbing trades.


    Construction Expert Witness Contractors Building Industry
    Association Directory
    Builders Association of Greater San Antonio
    Local # 4560
    3625 Paesanos Parkwary
    San Antonio, TX 78231
    http://www.sabuilders.com

    Greater New Braunfels Home Builders Association
    Local # 4503
    625 W San Antonio St
    New Braunfels, TX 78130
    http://www.newbraunfelshomebuilders.com

    Galveston Area Builders & Remodelers Association
    Local # 4533
    P O Box 1037
    Santa Fe, TX 77517
    http://www.galvestonbuilders.org/

    Greater Houston Builders Association
    Local # 4536
    9511 W Sam Houston Pkwy N
    Houston, TX 77064
    http://www.ghba.org

    Texas Hill Country Home Builders Association
    Local # 4580
    1444 Sidney Baker St
    Kerrville, TX 78028
    http://www.hillcountrybuilders.org

    Home Builders Association of SE Texas
    Local # 4515
    5655 Eastex Freeway Ste M6A
    Beaumont, TX 77706
    http://www.hbaset.org

    Builders Association of Victoria
    Local # 4572
    5105 E Airline Rd
    Victoria, TX 77904
    http://www.vctbuilders.org


    Construction Expert Witness News and Information
    For Cibolo Texas

    Statute of Repose Dependant on When Subcontractors Finished

    Harmon Hotel Construction Defect Update

    Texas contractual liability exclusion

    Insurer Must Cover Construction Defects Claims under Actual Injury Rule

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

    Ninety-Day Extension Denied to KB Home in Construction Defect Insurance Claim

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

    Mandatory Arbitration Provision Upheld in Construction Defect Case

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

    Read Her Lips: “No New Buildings”

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

    Insurer Beware: Failure to Defend Ends with Hefty Verdict

    Foundation Arbitration Doesn’t Preclude Suing Over Cracks

    State Farm Too Quick To Deny Coverage, Court Rules

    New Construction Laws, New Forms in California

    Homeowners May Not Need to Pay Lien on Defective Log Cabin

    Gilroy Homeowners Sue over Leaky Homes

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

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

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

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

    Ensuing Losses From Faulty Workmanship Must be Covered

    Are Construction Defects Covered by Your General Liability Policy?

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

    Nebraska Man Sentenced for Insurance Fraud in Construction Projects

    $5 Million Construction Defect Lawsuit over Oregon Townhomes

    Is There a Conflict of Interest When a CD Defense Attorney Becomes Coverage Counsel Post-Litigation?

    Preparing For the Worst with Smart Books & Records

    AFL-CIO Joins in $10 Billion Infrastructure Plan

    Boston Tower Project to Create 450 Jobs

    Brown Paint Doesn’t Cover Up Construction Defects

    Eighth Circuit Remands to Determine Applicability of Collapse Exclusion

    Construction Defect Not an Occurrence in Ohio

    Texas Construction Firm Files for Bankruptcy

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

    Contractor’s Home Not Covered for Construction Defects

    Contractor Burns Down Home, Insurer Refuses Coverage

    Construction Firm Sues City and Engineers over Reservoir Project

    Contractor Manslaughter? Safety Shortcuts Are Not Worth It

    Tacoma Construction Site Uncovers Gravestones

    No-Show Contractor Can’t Hide from Construction Defect Claim

    Nevada Construction Defect Lawyers Dead in Possible Suicides

    Housing Prices Up through Most of Country

    Businesspeople to Nevada: Revoke the Construction Defect Laws

    Kentucky Court Upholds Arbitration Award, Denies Appeal

    Builder Cannot Receive Setoff in Construction Defect Case

    Know the Minnesota Statute of Limitations for Construction Defect Claims

    Contractors with Ties to Trustees Reaped Benefits from LA Community College Modernization Program

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

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

    Construction Workers Unearth Bones

    Manhattan Developer Breaks Ground on $520 Million Project

    Hovnanian Increases Construction Defect Reserves for 2012

    Homeowner’s Policy Excludes Coverage for Loss Caused by Chinese Drywall

    After Breaching its Duty to Defend, Insurer Must Indemnify

    Another Las Vegas Tower at the Center of Construction Defect Claims

    New Web Site Tracks Settled Construction Defect Claims

    Pictorial Construction Terminology Dictionary — A Quick and Helpful Reference

    Windows and Lawsuits Fly at W Hotel

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

    Faulty Workmanship Causing Damage to Other Property Covered as Construction Defect

    Orange County Home Builder Dead at 93

    California Bill Would Notify Homeowners on Construction Defect Options

    District Court’s Ruling Affirmed in TCD v American Family Mutual Insurance Co.

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

    North Carolina Exclusion j(6) “That Particular Part”

    Construction Employment Rises in Half of the States

    Nevada Supreme Court Reverses Decision against Grader in Drainage Case

    Rihanna Finds Construction Defects Hit a Sour Note

    Construction Defects as Occurrences, Better Decided in Law than in Courts

    Homebuilding Still on the Rise

    Fire Reveals Defects, Appeals Court Affirms Judgment against Builder

    No Coverage for Property Damage That is Limited to Work Completed by Subcontractor

    The Colorado Court of Appeals Rules that a Statutory Notice of Claim Triggers an Insurer’s Duty to Defend.

    High School Gym Closed by Construction Defects

    Coverage for Construction Defects Barred by Business Risk Exclusions

    Home Repair Firms Sued for Fraud

    Contract Not So Clear in South Carolina Construction Defect Case

    California Construction Bill Dies in Committee

    The Flood Insurance Reform Act May be Extended to 2016

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

    Preparing for Trial on a Cause of Action for Violation of Civil Code section 895, et seq.

    Court Grants Summary Judgment to Insurer in HVAC Defect Case

    Green Buildings Could Lead to Liabilities

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

    Cabinetmaker Exceeds Expectations as Conditions Improve

    Hovnanian Sees Second-Quarter Profit, Points to Recovery

    Arizona Contractor Designs Water-Repellant Cabinets

    Water District Denied New Trial in Construction Defect Claim

    Wine without Cheese? (Why a construction contract needs an order of precedence clause)(Law Note)
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    CIBOLO TEXAS CONSTRUCTION EXPERT WITNESS
    DIRECTORY AND CAPABILITIES

    The Cibolo, Texas Construction Expert Witness Group at BHA, leverages from the experience gained through more than 5,500 construction related expert witness designations encompassing a wide spectrum of construction related disputes. Drawing from this considerable body of experience, BHA provides construction related trial support and expert services to Cibolo's most recognized construction litigation practitioners, commercial general liability carriers, owners, construction practice groups, as well as a variety of state and local government agencies.

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    Construction Expert Witness News & Info
    Cibolo, Texas

    Brown Paint Doesn’t Cover Up Construction Defects

    April 25, 2012 — CDJ Staff

    In a decision that describes the case as illustrating “the perils that real estate brokers and their agents assume when acting as a dual listing agent to both the buyers and sellers of the same house,” the California Court of Appeals has issued a decision in William L. Lyon & Associates v. The Superior Court of Placer County. Lyon & Associates sought summary judgment to dismiss the claims of the Henleys who bought a home in a transaction where a Lyon agent represented both sides.

    The prior owners of the home, the Costas, had used a Lyon agent in purchasing their home. When they later sought to sell it, that agent “became aware of some of the house’s defects and problems.” In response, the Costas sought the help of another agent, Connie Gidal, also of Lyons & Associates. Photos taken in the presence of Ms. Gidal show defects of the paint and stucco. The Costas also took the step of painting the house dark brown. During the sale process, “rain caused many of the painted-over defects to reappear.” The Costas “purchased more dark brown paint and covered up the newly visible damage prior to inspection by the Henleys.”

    With the damage concealed, the Henleys bought the home in May 2006. The agreement with Lyons & Associates noted that “a dual agent is obligated to disclose known facts materially affecting the value or desirability of the property to both parties.” Escrow closed on May 9, 2006. The contract with the broker included a two-year limit on the time to bring legal action.

    The Henleys moved in during June 2006, and “began to discover construction defects that had been concealed by the Costas.” In addition to the painted-over stucco problems, the Henleys found that the Costas had “installed quartzite stone overlays on the backyard steps in a manner that caused water intrusion on the house’s stucco walls.”

    In May 2009, the Henleys sued the Costas, Ron McKim Construction, Lyons & Associates, and Ms. Gidal. Their complaint alleged that Lyons & Associates had committed breach of contact, negligence, fraud, breach of fiduciary duty, and negligent nondisclosure in connection with the construction defects. The Costas named Lyons in a cross complaint. Lyons moved for summary judgments on the grounds that the two-year statute of limitations had expired before the complaint and cross-complaint were filed. Both the Henleys and the Costas opposed this claim. The court denied the motion and Lyons appealed.

    The appeals court upheld the denial, noting that the both California Supreme Court decision and later action by the legislature compels real estate brokers and salespersons “to conduct a reasonably competent and diligent visual inspection of the property offered for sale.” The court noted that under California law, brokers have responsibilities to both sellers and buyers. The section of law cited by Lyons applies to seller’s agents. The court rejected the contention by Lyons that they were “cooperating brokers.” The Henleys were “not constrained by the two-year statute of limitations.”

    Lyons contended that even if California’s statute did not apply, there was a contractual limit of two years. The court also rejected this, agreeing with the Henleys that “the two-year limitation period must be extended by the discovery rule.”

    The court noted that “Lyon & Associates may not reap the benefit of a shortened contractual limitation period when its own alleged malfeasance contributed to the delay in the discovery of the buyer’s injury.” The court found that the Henleys could proceed with their breach of contract claim, because, “when a breach of contract is committed in secret, such as the intentional nondisclosure of a real estate broker regarding a previously visible construction defect, the contractual limitations period is properly held subject to the discovery rule.” The court felt that the interpretation favored by the California Association of Realtors would “halve the applicable statute of limitations period.”

    In addition to rejecting Lyon request for summary judgment on the claims made by the Henleys, the court also rejected the request of summary judgment on the claims made by the Costas, concluding that neither claim is time-barred. Costs were awarded to both the Henleys and Costas.

    Read the court’s decision…


    Nevada Bill Aims to Reduce Legal Fees For Construction Defect Practitioners

    March 21, 2011 — March 21, 2011 Construction Defect Journal Staff

    Assemblyman Ira Hansen and twelve additional members of Nevada’s Assembly are sponsoring Assembly Bill 285. AB 285 Revises provisions governing an award of attorney’s fees in causes of action for constructional defects. Existing law generally provides that a claimant may recover reasonable attorney’s fees as part of the claimant’s damages in a cause of action for constructional defects. (NRS 40.655)

    This bill removes this provision and instead authorizes a court to award reasonable attorney’s fees to a prevailing party involved in such a cause of action if an independent basis for the award exists pursuant to existing law which authorizes a court to award attorney’s fees in certain circumstances, or Rule 68 of the Nevada Rules of Civil Procedure, which provides for the payment of reasonable attorney’s fees by an offeree who rejects an offer and subsequently fails to obtain a more favorable judgment.

    In an AP report published in Business Week it is suggested that the target objective of legislators centers on what it refers to as Nevada’s "Rampant construction defect lawsuits".

    According to Business Week "The suits bring in hundreds of millions of dollars for lawyers and have put construction companies out of business. Hansen says fewer construction firms mean higher prices for Nevada consumers."

    Click Here To Read Full Text and Revisions of Assembly Bill 285


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

    December 9, 2011 — Douglas Reiser, Builders Counsel

    Recently, I read an article on Engineering News-Record that outlines a remarkable movement by as many as four states, to mandate coverage of construction defects in contractor general liability insurance policies. Say what? Is this a reality? What will become of affordable insurance?

    Commercial General Liability insurance, or CGL, is your basic liability insurance. Every contractor doing business in the State of Washington, and most likely those abroad, has this insurance. Contractors buy this insurance to protect them from unforeseen liabilities arising from their negligence - and right now it’s reasonably affordable.

    Why is it so affordable in such a risk-heavy industry? Because CGL policies significantly limit the scope of their coverage. Coverage is generally afforded for damages resulting from negligence (The roofer put a hammer through the drywall contractor’s wall) or which resulted from your defective construction (the roof leaked and flooded the rest of the house). But, that coverage does not include replacement of your faulty construction (the contents of the home might be protected by your leaky roof - the leaky roof itself is not).

    The debate over coverage typically stems from the definition of “occurrence,” a term used to describe the event from which coverage arises, “resulting loss,” a term used to describe the type of loss covered.

    Read the full story…

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


    Five Years of Great Legal Blogging at Insurance Law Hawaii

    December 9, 2011 — CDJ Staff

    Our congratulations to Tred Eyerly who has been blogging at Insurance Law Hawaii for five years now. Over the years, he has posted more than five hundred posts and has provided us all with fascinating insights into the laws on insurance coverage. He describes his blog as “a commentary on insurance coverage issues in Hawaii and beyond.” We are grateful that the “beyond” has just in the last few weeks included Colorado, Illinois, Washington, Minnesota, and Rhode Island (about as far from the island of Hawaii as you can get).

    You can read his blog at Insurance Law Hawaii.


    Nevada Assembly Bill Proposes Changes to Construction Defect Litigation

    April 14, 2011 — April 14, 2011 Beverley BevenFlorez - Construction Defect Journal

    Assemblyman John Oceguera has written a bill that would redefine the term Construction Defect, set statutory limitations, and force the prevailing party to pay for attorney’s fees. Assembly Bill 401 has been referred to the Committee on Judiciary.

    Currently, the law in Nevada states that “a defect in the design, construction, manufacture, repair or landscaping of a new residence, of an alteration of or addition to an existing residence, or of an appurtenance, which is done in violation of law, including in violation of local codes or ordinances, is a constructional defect.” However, AB401 “provides that there is a rebuttable presumption that workmanship which exceeds the standards set forth in the applicable law, including any applicable local codes or ordinances, is not a constructional defect.”

    The Nevada courts may award attorney fees to the prevailing party today. However, AB401 mandates that attorney fees must be awarded, and the exact award is to be determined by the Court. “(1) The court shall award to the prevailing party reasonable attorney’s fees, which must be an element of costs and awarded as costs; and (2) the amount of any attorney’s fees awarded must be determined by and approved by the court.”

    AB401 also sets a three year statutory limit “for an action for damages for certain deficiencies, injury or wrongful death caused by a defect in construction if the defect is a result of willful misconduct or was fraudulently concealed.”

    This Nevada bill is in the early stages of development.

    Read the full story...

    Ensuing Loss Found Ambiguous, Allowing Coverage

    August 16, 2012 — Tred Eyerly, Insurance Law Hawaii

    The court determined the ensuing loss provision was ambiguous and found coverage for the home owners in Platek v. Town of Hamburg, 2012 N.Y. App. Div. LEXIS 5371 (N.Y. App. Div. July 6, 2012).

    The burst of a water main caused water damage to the insureds' basement. Allstate disclaimed coverage under exclusion 4 for losses caused by "[w]ater . . . on or below the surface of the ground, regardless of its source . . . [,] includ[ing] water . . . which exerts pressure on or flows, seeps or leaks through any part of the residence premises."

    Another policy provision covered "sudden and accidental direct physical loss caused by fire, explosion or theft resulting from item []. . . 4 . . . ." Plaintiffs argued that this exception applied because their claimed loss was caused by an "explosion" of the water main.

    Read the full story…

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


    Exact Dates Not Needed for Construction Defect Insurance Claim

    March 1, 2012 — CDJ Staff

    The Texas Court of Appeals reversed the decision of the trial court in Vines-Herrin Custom Homes v Great American Lloyds Insurance Company on December 21, 2011. Vines-Herrin Custom Homes built a single-family home in Plano, Texas in 1999. They obtained a commercial general liability policy from Great American, later purchasing coverage from Mid-Continent, which the decision describes as “a sister company of Great American.”

    While the home was under construction, Emil G. Cerullo sought to purchase it. At the time, it was under contract to another buyer. Two months later, Vines-Herrin told Cerullo that the deal had “fell through.” Cerullo bought the house with modifications from the original plan. Upon moving in, Cerullo began having water intrusion and other problems. “Cerullo noticed water gathering on window sills and damage to the sheetrock and baseboard.” Additional problems followed, including cracks, leaks, “and in early 2002, the ceiling and roof began to sag.”

    Cerullo sued Vines-Herrin, claiming negligent construction. Vines-Herrin filed a claim seeking defense and indemnification under the insurance policies. Coverage was denied and Vines-Herrin filed suit to require coverage and also bringing claims for “breach of the duty of good faith and fair dealing, breach of contract, and DTPA and insurance code violations.”

    In May, 2006 Vines-Herrin stated that it had no more defense funds and went into arbitration with Cerullo. The underlying construction defect action was settled for about $2.5 million. As part of the settlement, “Cerullo became the rightful owner of all remaining claims, rights, and causes of action against” Vines-Herrin’s insurers. He then joined the coverage lawsuit.

    The non-jury trial was held under the controlling law of the time which “imposed a duty to defend only if the property damage manifested or became apparent during the policy period.” The court concluded in Cerullo’s favor. During the post-judgment motions, the Texas Supreme Court rejected the manifestation rule. Under this ruling, the trial court set aside its judgment and found in favor of the insurance companies. The trial court noted that although “the Residence was covered by an uninterrupted period of insurance (which began before the Residence was constructed) and that the damages to the Residence manifested during the uninterrupted period of insurance coverage,” “Mr. Cerullo failed to allege the date when actual physical damage to the property occurred.”

    The first claim by Cerullo and Vines-Herrin was that the “Final Judgment” occurred in October 2004, and that all proceedings thereafter were void. The court rejected this as the “final judgment” is not “final for the purposes of an appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties.” Despite the use of the word “final,” the trial court’s decision did not do this.

    The second issue was the application of the Texas Supreme Court case Don’s Building Supply Inc. v. OneBeacon Insurance. In this case, framing rot due to defective stucco was not discovered until after the end of the policy period. The Supreme Court noted that “the key date is when injury happens, not when someone happens on it.”

    The appeals court found that the trial court misapplied the Don’s Building Supply decision. Rather than an exact date, “so long as that damage occurred within the policy period, coverage was provided.” The appeals court noted that “Cerullo alleged the house was constructed in 1999 and he purchased it in May 2000.” “By April of 2001, Cerullo noticed that the windowsills in the study were showing signs of leakage and water damage.” As the court put it, “the petitions then alleged a litany of defects.”

    The court noted that coverage by Great American was in effect from November 9, 1999 to November 9, 2000. In May of 2000, the house suffered “substantial flooding from a rainstorm that caused damage.” This was during the policy period. “As a matter of law, actual damages must occur no later than when they manifest.”

    The court concluded that as damage manifested during the period of coverage, so must have the damage. The court ruled that “contrary to the trial court’s determination otherwise, the evidence showed Great American’s duty to indemnify was triggered, and expert testimony establishing the exact date of injury was not required to trigger the duty.”

    Read the court’s decision…


    Underpowered AC Not a Construction Defect

    November 7, 2012 — CDJ Staff

    After buying a home in Louisiana, Mike Gines determined that the home’s air conditioning unit was insufficient to maintain an appropriate temperature. He contacted the home builder, D.R. Horton, Inc., which worked with the air conditioning installer, Reliant Heating & Air Conditioning, in order to repair the system. When the problems persisted, Gines filed a class action petition against Horton and Reliant in state court. Horton and Reliant moved the case to the federal courts, whereupon Gines asserted the defendants were in violation of the Louisiana New Home Warranty Act (NHWA). Horton stated that the claim under the NHWA was invalid, because Gines had not alleged actual physical damage to his home.

    The district court granted Horton’s motion to dismiss. Gines sought a reversal from the Fifth Circuit Court of Appeals and sought to have two questions of state law addressed by the Louisiana Supreme Court.

    The district court ruled that the NHWA was the “sole remedy under Louisiana law for a purchaser of a new home with construction defects. Gines argued that court erred in this, but also conceded that this was the conclusion of the Louisiana Supreme Court.

    Further, Gines argued that a provision in the NHWA that allows the inclusion of construction defects that do not cause damage was satisfied by paragraph 6 of the contract. The court noted that Gines did not attach a copy of the contract to either the original or amended complaint, and so the court does not need to address these claims. However, the court cautioned that if a copy had been included, they still would have rejected the claim, as “the cited language does not indicate a waiver of the physical damage requirement.” They also note that “paragraph 13 of the contract shows that Gines was aware to the absence of any such waiver in the contract.”

    The court concludes that “the moral of this story is that in order to avoid the harsh result that has obtained here, the buyer of a newly constructed home in Louisiana should seek to obtain in the contract of sale an express waiver of the actual damage requirement of the NHWA.” The appeals court affirmed the decision of the circuit court and denied the application to certify questions to the Louisiana Supreme Court.

    Read the court’s decision…


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

    October 23, 2012 — Tred Eyerly, Insurance Law Hawaii

    The issue faced by the Minnesota Supreme Court was whether the insurer had a duty to disclose the insured's interest in obtaining a written explanation of an arbitration award that identified the claims of recovery and the portions of the award attributable to each. Remodeling Dimensions, Inc. v. Integrity Mut. Ins. Co., 2012 LEXIS Minn. 404 (Minn. Sup. Ct., Aug. 22, 2012).

    Remodeling Dimensions, Inc. ("RDI") built an addition for the homeowners and installed windows in the original part of the house. After construction began, the homeowners also asked RDI to fix the master bedroom window in the original part of the house.

    After completion of the project, the house sustained storm damage.

    Read the full story…

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


    Harmon Towers Case to Last into 2014

    December 20, 2012 — CDJ Staff

    Don’t expect a fast resolution to the Harmon Tower case in Las Vegas. The latest schedule sets trial for the construction defect claims in January 2014. Previously, these claims were going to be heard during the trial set to start in June 2013. Now the June trial will be over payment issues only.

    Don’t expect the building to come down soon either. While CityCenter claims the building could come down in an earthquake, Judge Elizabeth Gonzalez had determined that as the structural testing was not random; its results cannot be extrapolated through the entire structure. As a result, CityCenter has elected to do more testing, holding off on demolishing the building. They are appealing Gonzalez’s order to the Nevada Supreme Court.

    Read the full story…


    Retaining Wall Contractor Not Responsible for Building Damage

    July 20, 2011 — CDJ Staff

    The Court of Appeals of Indiana ruled on July 8 in the case of Rollander Enterprises, Inc. v. H.C. Nutting Co. Judge Baily wrote the opinion affirming the decision of the trial court.

    The case involved an unfinished condominium complex, the Slopes of Greendale, in Greendale, Indiana. Rollander is a real estate development company incorporated in Ohio. One of the issues in the case was whether the case should be settled in the Indiana courts or be tried in Ohio. The project was owned by a special purpose entity limited liability corporation incorporated in Indiana.

    Rollander hired Nutting to determine the geological composition of the site. Nutting’s report described the site as “a medium plastic clay containing pieces of shale and limestone.” The court summarized this as corresponding with “slope instability and landslides.” Rollander then hired Nutting to design the retaining walls, which were constructed by Scherziner Drilling.

    After cracking was discovered on State Route 1, the walls were discovered to be inadequate. More dirt was brought in and a system of tie-backs was designed to anchor the walls. Not only were the tie-backs unsightly, local officials would not approve the complex for occupancy. Further, the failure of the wall below one building lead to damage of that building.

    The court concluded that since almost all events occurred in Indiana, they rejected Rollander’s contention that the case should be tried in Ohio. Further, the court notes “the last event making Nutting potentially liable on both claims was an injury that occurred in Indiana and consequently, under the lex loci delicti analysis, Indiana law applies.”

    Nor did the court find that Nutting was responsible for the damage to the rest of the project, citing an Indiana Supreme Court ruling, that “there is no liability in tort to the owner of a major construction project for pure economic loss caused unintentionally by contractors, subcontractors, engineers, design professionals, or others engaged in the project with whom the project owner, whether or not technically in privity of contract, is connected through a network or chain of contracts.”

    The court concluded:

    Because Rollander was in contractual privity with Nutting, and Indy was connected to Nutting through a chain of contracts and no exception applies, the economic loss rule precludes their recovery in tort. Damage to Building B was not damage to "other property," and the negligent misrepresentation exception to the economic loss rule is inapplicable on these facts. The trial court therefore did not abuse its discretion by entering judgment on the evidence in favor of Nutting on the Appellants' negligence and negligent misrepresentation claims.

    Read the court’s decision…


    California Supreme Court to Examine Arbitration Provisions in Several Upcoming Cases

    December 9, 2011 — CDJ Staff

    Glen C. Hansen, writing on Abbott & Kinderman’s Land Use Law Blog looks at several cases pending before the California Supreme Court which ask if a developer can insist on arbitration of construction defect claims, based on provision in the CC&Rs. Currently, there is a split of opinions in the California appeals courts on the issue.

    Four of the cases are in California’s Fourth Appellate District. In the earliest case, Villa Milano Homeowners Association v. Il Davorge, from 2000, the court concluded that the arbitration clause was sufficient to require that construction defect claims undergo arbitration. However, the Fourth Appellate District Court concluded in three later cases that the arbitration clauses did not allow the developer to compel arbitration. In two cases, argued in 2008 and 2010, the court concluded that to do otherwise would deprive the homeowners of their right to a jury trial. In the most recent case, Villa Vicenza Homeowners Association v. Nobel Court Development, the court decided that the CC&Rs did not create contractual rights for the developer.

    The Second Appellate District Court came to a similar decision in Promenade at Playa Vista Homeowners Association v. Western Pacific Housing, Inc. In their decision, the court noted that CC&Rs could be enforced by homeowners and homeowners associations, but not developers.

    Read the full story…


    Recent Case Brings Clarity and Questions to Statute of Repose Application

    August 16, 2012 — Douglas Reiser, Builders Counsel

    I have often chatted about the Washington Statute of Repose on this blog. The Statute of Repose prevents construction claims, for the most part, from being raised 6 years from the date of substantial completion or termination. Well, a recent Court of Appeals case dove deep into the specific determinative factors that tell us when to start the clock. It certainly raises questions about how long we really have to file suit.

    The Statute of Repose has been a frequent topic here, so I will simply direct you to my prior post for further information on how this law works. A recent post was published about a lawsuit that might raise some questions about when and how the clock begins to roll, and claim periods begin to diminish.

    Read the full story…

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


    Construction Defects and Contractor-Owners

    July 10, 2012 — CDJ Staff

    On the expert advice site Avvo.com, a user asks if he can be sued for construction defects by the new owner of a building for which he served as general contractor and then owned for four years. He had construction insurance, but does not think he had construction defect insurance.

    A lawyer responding to his question says that “you could be sued.” In the event of a suit, “you would have to bring claims against all of your subcontractors.”

    Read the full story…


    Court Will Not Compel Judge to Dismiss Construction Defect Case

    August 2, 2012 — CDJ Staff

    The Fourteenth Court of Appeals of Texas has denied a petition for a writ of mandamus. The parties involved, Bonner Ball, Thomas Zenner, and Rallin Welch, are lmited partners of Black Diamond Builders, LLP. Black Diamond is the recipient of a lawsuit from Grier and Camille Patton, for whom Black Diamond built a home. The Pattons are alleging construction defects.

    The Black Diamond partners argue that Judge Jeff Shadwick, presiding judge of the 55th District Court of Harris County, Texas should have granted their motion to dismiss. They sought to have the Fourteenth Court of Appeals compel that action.

    The Black Diamond Partners claims that “the homowners failed to satisfy statutory prerequisites before filing suit, and dismissal of the suit was automatic under the applicable statues in effect at the time the Pattons noticed alleged defects in their home.”

    The court noted that “a trial court will be held to have abused its discretion only if the party requesting mandamus relief establishes that the trial court could have reached but one decision.” The court did not concur with this and denied the petition for a writ of mandamus.

    Read the court's decision…


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

    January 6, 2012 — Tred Eyerly, Insurance Law Hawaii

    A portion of a dock on Lack Michigan operated by the Ports of Indiana suffered visible damage. See Ports of Indiana v. Lexington Ins. Co., 2011 U.S. Dist. LEXIS 130979 (S.D. Ind. Nov. 14, 2011). Lexington Insurance Company insured the port. Lexington agreed that a portion of the dock was damaged and paid $1.2 million for repairs. A dispute arose, however, over whether additional sections of the dock were damaged and whether the damage was the result of more than one "occurrence."

    An expert report opined that a significant drop creating record lows in the water level of Lake Michigan in 2007 caused damage to the dock. Lexington maintained that only 128 feet of the dock was damaged; other portions of the dock did not sustain "direct physical loss or damage."

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


    Water Is the Enemy

    August 16, 2012 — CDJ Staff

    So says Melissa Mitchell, writing in the blog of Community Association Consultants. She cites the nightmare scenario of “an unseen presence lurking behind the walls.” Not a horror movie, but water intrusion, which she notes can cause hundreds of thousands of dollars in damage. Eric Hoff, of Western Architectural, is quoted that “it only takes a hole one-eighth inch diameter in a building’s exterior to allow the intrusion of 35 gallons of water over twelve months.” Destructive testing on a building in in the Pacific Northwest revealed that water intrusion had lead to structural failure of the building. The wet wood had made a home for carpenter ants. Repairs exceeded $100,000.

    Mitchell notes that “deferred maintenance can be costly” and cites the importance of preventative maintenance or the development of a maintenance plan. She concludes that “if you own or are responsible for maintaining a condominium complex, apartment building or commercial structure, it’s simply good business sense to have a building envelope assessment conducted by experts in the field.”

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    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.

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