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    Barwick, Georgia

    Georgia Builders Right To Repair Current Law Summary:

    Current Law Summary: SB 563 stipulates that prior to filing a claim, a homeowner must give the contractor 30 day written notice detailing the nature of the defect. In response, contractor must provide (within 30 days of receipt) a written reply containing an offer of settlement, requirement of inspection or rejection. The law provides definitions relating to construction; offers immunity from liability for certain conditions; and sets up an alternative dispute resolution process.


    Construction Expert Witness Contractors Licensing
    Guidelines Barwick Georgia

    No state license for general contracting required. License is required for Air Conditioning, Electrical, and Plumbing trades.


    Construction Expert Witness Contractors Building Industry
    Association Directory
    Home Builders Association of South GA
    Local # 1194
    PO Box 2950
    Valdosta, GA 31603
    http://www.hbasg.org

    Golden Isles Home Builders Association
    Local # 1135
    218 Rose Drive
    Brunswick, GA 31520


    Home Builders Association of Albany & SW GA Inc
    Local # 1108
    PO Box 70424
    Albany, GA 31708
    http://www.hbaofalbany.com

    Home Builders Association of Greater Savannah
    Local # 1188
    7116 Hodgson Memorial Dr
    Savannah, GA 31406
    http://www.homebuildersofsavannah.com

    Statesboro Home Builders Association
    Local # 1191
    1223 Merchants Way
    Statesboro, GA 30458


    Greater Columbus Home Builders Association
    Local # 1148
    6432 Bradley Park Dr
    Columbus, GA 31904
    http://www.gchba.com

    Home Builders Association Of Warner Robins
    Local # 1196
    PO Box 8297
    Warner Robins, GA 31095
    http://homebuilderswr.com/


    Construction Expert Witness News and Information
    For Barwick Georgia

    Construction Defect Litigation at San Diego’s Alicante Condominiums?

    Construction Firm Charged for Creating “Hail” Damage

    Insurer Not Liable for Construction Defect Revealed by Woodpecker

    Mark Van Wonterghem To Serve as Senior Forensic Consultant in the Sacramento Offices of Bert L. Howe & Associates, Inc.

    Broker Not Liable for Failure to Reveal Insurer's Insolvency After Policy Issued

    Colorado “occurrence”

    No “Special Relationship” in Oregon Construction Defect Claim

    Alaska Supreme Court Dismisses Claims of Uncooperative Pro Se Litigant in Defect Case

    Construction Upturn in Silicon Valley

    Court Clarifies Sequence in California’s SB800

    Eighth Circuit Remands to Determine Applicability of Collapse Exclusion

    AFL-CIO Joins in $10 Billion Infrastructure Plan

    Application of Efficient Proximate Cause Doctrine Supports Coverage

    Fifth Circuit Asks Texas Supreme Court to Clarify Construction Defect Decision

    San Diego Construction Defect Claim Settled for $2.3 Million

    The Flood Insurance Reform Act May be Extended to 2016

    Construction Defect Journal Marks First Anniversary

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

    Builder to Appeal Razing of Harmon Tower

    Contractor Sues Supplier over Defective Products

    Arbitration Clause Found Ambiguous in Construction Defect Case

    Insurer Unable to Declare its Coverage Excess In Construction Defect Case

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

    Florida trigger

    After Construction Defect Case, Repairs to Austin Building

    Nevada Supreme Court Reverses Decision against Grader in Drainage Case

    Amerisure Case to be Heard by Texas Supreme Court

    Consumer Protection Act Whacks Seattle Roofing Contractor

    Unit Owners Have No Standing to Sue under Condominium Association’s Policy

    Subcontractor Not Liable for Defending Contractor in Construction Defect Case

    Nebraska Man Sentenced for Insurance Fraud in Construction Projects

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

    Seven Tips to Manage Construction Defect Risk

    Reference to "Man Made" Movement of Earth Corrects Ambiguity

    Homeowners Must Comply with Arbitration over Construction Defects

    Southern California Lost $8 Billion in Construction Wages

    Ohio Court of Appeals Affirms Judgment in Landis v. Fannin Builders

    Insurer Must Defend Claims for Diminution in Value of Damaged Property

    Late Filing Contractor Barred from Involving Subcontractors in Construction Defect Claim

    Flooded Courtroom May be Due to Construction Defect

    Illinois Court Determines Insurer Must Defend Negligent Misrepresentation Claim

    Good and Bad News on Construction Employment

    Hawaii State Senate Requires CGL Carriers to Submit Premium Information To State Legislature

    Ohio subcontractor work exception to the “your work” exclusion

    Hawaii Building Codes to Stay in State Control

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

    Tucson Officials to Discuss Construction Defect Claim

    Ensuing Loss Provision Found Ambiguous

    Coverage Exists Under Ensuing Loss Provision

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

    Florida County Suspends Impact Fees to Spur Development

    SB800 Cases Approach the Courts

    Texas Construction Firm Files for Bankruptcy

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

    Window Manufacturer Weathers Recession by Diversifying

    Appropriation Bill Cuts Military Construction Spending

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

    Builder Cannot Receive Setoff in Construction Defect Case

    Read Her Lips: “No New Buildings”

    JDi Data Introduces Mobile App for Litigation Cost Allocation

    MGM Seeks to Demolish Harmon Towers

    Condo Buyers Seek to Void Sale over Construction Defect Lawsuit

    California Lawyer Gives How-To on Pursuing a Construction Defect Claim

    Ohio Court Finds No Coverage for Construction Defect Claims

    A Performance-Based Energy Code in Seattle: Will It Save Existing Buildings?

    Lawsuit over Construction Defects Not a Federal Case

    Construction Defects Lead to Demolition of Seattle’s 25-story McGuire Apartments Building

    Demand for Urban Living Leads to Austin Building Boom

    Virginia Chinese Drywall and pollution exclusion

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

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

    Delays in Filing Lead to Dismissal in Moisture Intrusion Lawsuit

    Lower Court “Eminently Reasonable” but Wrong in Construction Defect Case

    The Ever-Growing Thicket Of California Civil Code Section 2782

    School District Marks End of Construction Project by Hiring Lawyers

    Anti-Assignment Provision Unenforceable in Kentucky

    Contractor Sues License Board

    Badly Constructed Masonry Walls Not an Occurrence in Arkansas Law

    Congress Addresses Homebuilding Credit Crunch

    Official Tried to Influence Judge against Shortchanged Subcontractor

    Damage During Roof Repairs Account for Three Occurrences

    Are Construction Defects Covered by Your General Liability Policy?

    Repair of Part May Necessitate Replacement of Whole

    No Coverage for Construction Defects Under Alabama Law

    Residential Construction Down in San Diego

    Construction Case Alert: Appellate Court Confirms Engineer’s Duty to Defend Developer Arises Upon Tender of Indemnity Claim

    Toxic Drywall Not Covered Under Homeowner’s Policy

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

    Cogently Written Opinion Finds Coverage for Loss Caused By Defective Concrete

    Arizona Contractor Designs Water-Repellant Cabinets
    Corporate Profile

    BARWICK GEORGIA CONSTRUCTION EXPERT WITNESS
    DIRECTORY AND CAPABILITIES

    The Barwick, Georgia 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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    Construction Expert Witness News & Info
    Barwick, Georgia

    Hilton Grand Vacations Defect Trial Delayed

    October 23, 2012 — CDJ Staff

    A settlement agreement between Conti Electric and Westgate Resorts has lead to a delay in starting the trial over construction defect claims and billing disputes over Hilton Grand Vacations a time share tower in Las Vegas. According to the Las Vegas Review-Journal, the dispute includes claims of $23.3 million owed to the general contractor against which the developer has placed $30 million in construction defect claims.

    Read the full story…


    The 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. Sullivanrsquo;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


    New Jersey Court Rules on Statue of Repose Case

    May 26, 2011 — CDJ Staff

    A three-judge panel issued a per curium ruling on May 23 in Fairview Heights Condo. v. Investors (N.J. Super., 2011), a case which the members of a condominium board argued: “that the judge erred by: 1) dismissing plaintiff’s claims against RLI based upon the statute of repose; 2) dismissing the breach of fiduciary duty claims against the Luppinos based upon a lack of expert opinion; 3) barring the testimony of Gonzalez; and 4) barring the May 23, 1989 job site report.” The court rejected all claims from the condominium board.

    The court found that the building must be unsafe for the statute of repose to apply. They noted, “the judge made no findings on whether the water seepage, or the property damage caused by such seepage, in any way rendered the building, or any of the units, unsafe.” Further, “without a specific finding on the question of whether the defects had rendered the building ‘unsafe,’ defendants were not entitled to the benefit of the ten-year statute of repose.“

    On the second point, the court also upheld the lower court’s findings regarding the management company:

    “The report submitted by Berman establishes that the EIFS product was defective in its design and would therefore have failed from the outset. The defects in that product were, according to Berman, not prone to repair or other mitigation. Therefore, even if defendants did not appropriately inspect or repair the EIFS, their failure to do so would have had no impact on the long-term performance of the EIFS exterior cladding. As plaintiff failed to raise a genuine issue of material fact on these questions, the judge properly granted summary judgment to the Luppinos on plaintiff’s breach of fiduciary duty claim.”

    On the final two points, the judges noted “plaintiff maintains that the judge committed reversible error when he excluded the Gonzalez certification and the 1989 job site report prepared by Raymond Brzuchalski.” They saw “no abuse of discretion related to the exclusion of the Gonzalez certification, and reject plaintiff’s arguments to the contrary.” Of the job site report, they found, “no abuse of discretion in the judge's finding that the Brzuchalski 1989 job site report did not satisfy the requirements of N.J.R.E.803(c)(6).”

    Read the court’s decision


    Construction Defect Journal Seeks Article Submissions Regarding SB800 and Other Builders Right to Repair Laws

    October 28, 2011 — CDJ Staff

    As we approach the tenth anniversary of the passage and signing of SB800, California’s right-to-repair law, we’d like to hear your reactions to the law, your experiences with it, and your thoughts on it and right-to-repair laws in other states.

    We invite you to submit articles either reacting to SB800 or on other matters relevant to construction defect and claims issues. You can promote your firm’s capabilities and get valuable exposure through the publication of your articles. Construction Defect Journal is widely read by our highly targeted audience of decision makers, construction attorneys, builders, owners, and claims professionals.

    Articles may contain relevant images, your firm’s name, and links to your corporate website or third parties and can be submitted through e-mail to submitstory@constructiondefectjournal.com. Please remember to include your contact information if you would like it to be published with your content. If you are submitting photos or PDF documents with your article, please send them as e-mail attachments. Items submitted are assumed to be cleared for publishing upon receipt by CDJ.

    Normally articles are published in full, although we reserve the right to edit content for space purposes. All articles submitted are considered for publication. For additional questions please contact editor@constructiondefectjournal.com.


    Statute of Limitations Upheld in Construction Defect Case

    September 30, 2011 — CDJ Staff

    The Missouri Court of Appeals has ruled in Ball v. Friese Construction Co., finding that Mr. Ball’s claims were barred by the statute of limitations.

    Mr. Ball hired Friese Construction Company to build a single-family home. The sale was completed on March 29, 2001. That December, Mr. Ball complained of cracks in the basement floor. SCI Engineering, n engineering firm, hired by Friese, determined that the home’s footing had settled and recommended that Mr. Ball hire a structural engineer to determine if the footings were properly designed and sized. In September 2002, the structural engineer, Strain Engineering, determined that the cracks were due to slab movement, caused in part by water beneath the slab, recommending measures to move water away from the foundation. In 2005, Mr. Ball sent Friese correspondence “detailing issues he was having with the home, including problems with the basement slab, chimney structure, drywall tape, and doors.” All of these were attributed to the foundation problems. In 2006, Friese stated that the slab movement was due to Ball’s failure to maintain the storm water drains.

    In 2009, Ball received a report from GeoTest “stating the house was resting on highly plastic clay soils.” He sued Friese in May, 2010. Friese was granted a summary judgment dismissing the suit, as the Missouri has a five-year statute of limitations. Ball appealed on the grounds that the extent of the damage could not be determined until after the third expert report. The appeals court rejected this claim, noting that a reasonable person would have concluded that after the conclusion of SCI and Strain Engineering that “injury and substantial damages may have occurred.”

    The court concluded that as there were not “continuing wrongs causing new and distinct damages,” he should have filed his lawsuit after the first two expert reports, not waiting seven years for a third expert to opine.

    Read the court’s decision…


    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…


    Construction Defects Not Occurrences under Ohio Law

    November 7, 2012 — CDJ Staff

    Concluding the “claims of defective construction or workmanship brought by a property owners are not claims for ‘property damage’ caused by an ‘occurrence’ under a commercial general liability policy,” the Supreme Court of Ohio has ruled in Westfield Insurance Co. v. Custom Agri Systems, Inc. In the underlying case, Custom Agri Systems, Inc. built a grain bin as a subcontractor to Younglove Construction, LLC. Younglove had been contracted by PSD Development, which withheld payment, claiming it had suffered damages due to defects in Custom Agri System’s work. Younglove filed a complaint against Custom Agri, which filed complaints against its subcontractors. Custom Agri also requested that its insurer, Westfield Insurance Company, defend and indemnify it. Westfield claimed that it had no such duty. The Ohio Supreme Court concurred.

    The decision notes that “Custom was being sued under two general theories: defective construction and consequential damages resulting from the defective construction.” Westfield argued that none of the claims were “for ‘property damage’ caused by an ‘occurrence” and therefore none of the claims were covered under the CGL policy.” Further, Westfield argued that “even if the claims were for property damage caused by an occurrence, they were removed from coverage by an exclusion in the policy.”

    The case was filed in the US District Court which issued a summary judgment for Westfield. The plaintiff appealed and Sixth Circuit Court of Appeals certified the questions to the Supreme Court of Ohio.

    The court noted that “all of the claims against which Westfield is being asked to defect and indemnify Custom relate to Custom’s work itself.” And so, the court concluded that they “must decide whether Custom’s alleged defective construction of and workmanship on the steel grain bin constitute property damage caused by an ‘occurrence.’” However, the court noted that under the terms of the insurance contract, an occurrence is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions,” and the court noted that the “natural and commonly accepted meaning” of “accident” is something “unexpected, as well as unintended.”

    The Ohio Supreme Court also looked at court decisions in other places, and found that in many similar cases, courts have concluded that construction defects are not occurrences.

    In a dissenting opinion, Justice Pfeifer argues that “if the defective construction is accidental, it constitutes an ‘occurrence’ under a CGL policy.” Justice Pfeifer characterized the majority’s definition of “accidental” as “broad, covering unexpected, unintentional happenings.”

    Read the court’s decision…


    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


    Delays in Filing Lead to Dismissal in Moisture Intrusion Lawsuit

    September 9, 2011 — CDJ Staff

    The Alabama Court of Civil Appeals has upheld a summary judgment in the case of Franklin v. Mitchell. Walter Mitchell, doing business as Southern Classic Construction built a new home for the Franklins. The Franklins moved into the home in October 2001. In April 2006 they discovered sagging floors in both the bathroom and kitchen. They contacted Mitchell who suggested the flooring might be defective. The Franklins spent eight months attempting to contact the flooring manufacturer.

    In March 2007, the Franklins had the home inspected. The sagging was determined to be due to a loss of strength in the decking because of condensation from the air conditioning system. Air returns were not properly sealed and drawing moisture into the structure. There was mold on the decking and floor joints.

    When Mitchell was contacted by the Franklins, he told them his one-year warranty had expired but had the HVAC subcontractor, Southern Mechanical Heating & Air (owned by Mitchell’s father, Jim Mitchell), look at the situation. SMHA replaced and braced subfloors. Later, they entered the crawl space to tape ducts, seal the air return, and insulate the air vent housing. The Franklins were not satisfied with the repairs, as not all the ducts were taped, nor were the air vent housings insulated.

    Franklin complained to Walter Mitchell who again cited his one-year warranty. Jim Mitchell said he would not report complaints to his insurer, stating that the repairs were unnecessary, that the work had been done correctly in the first place, and it was only done at the request of Walter Mitchell.

    In February 2009, the Franklins sued Walker Mitchell. Mitchell denied the claims, citing in part the statute of limitations. Mitchell also filed complaints against three subcontractors, including his father’s firm. Mitchell received a summary judgment as the case started after Alabama’s six-year statute of limitations.

    The appeals court rejected the Franklin’s argument that the claim of damage did not start until they were aware it was due to a construction defect. The court noted that as Walter Mitchell was licensed as a “residential home builder, the statute the Franklins cite did not apply, as it concerns architects, engineers, and licensed general contactors.”

    Nor did they feel that Mitchells’ claim that his warranty had expired were sufficient to override the statute of limitations, quoting an earlier case, “Vague assurances do not amount to an affirmative inducement to delay filing suit.” Their claim of subsequent negligent repairs was rejected because Mitchell did not direct the specific actions taken by his father’s firm.

    Read the court’s decision…


    Policyholder Fails to Build Adequate Record to Support Bad Faith Claim

    May 19, 2011 — May 19, 2011 - Tred R. Eyerly, Insurance Law Hawaii

    The importance of careful preparation and documentation was the take away lesson in a Texas bad faith case, C.K. Lee v. Catlin Specialty Ins. Co., 2011 U.S. Dist. LEXIS 19145 (S.D. Tex. Feb. 28, 2011).

    C.K. Lee owned a commercial shopping center in Houston. Catlin issued a commercial property policy to Lee. On September 12, 2008, Hurricane Ike hit and caused substantial property damage throughout the Texas Gulf Coast area. On September 24, 2008, Lee submitted a claim for damage to the roof of his shopping center to Catlin.

    Catlin hired Engle Martin to represent its interests in adjusting the claim. Engle Martin eventually adjusted over 200 Ike-related claims for Catlin.

    In November 2008, Engle Martin and Emergency Services Inc., retained by Lee, inspected Lee’s property. Engle Martin observed evidence of roof repairs that had apparently been made both before and after Hurricane Ike. Engle Martin decided it was necessary to use an infrared scan of the roof to help identify which damages, if any, were attributable to wind and which, if any, were attributable to sub par, prior repairs or natural deterioration.

    Engle Martin retained Project, Time & Cost (PT&C) to conduct the infrared inspection. PT&C’s inspection determined there was no wind-related damage to the roof and no breaches or openings created by wind. Instead, the roof had exceeded its life expectancy and was in need of replacement due to normal wear and weathering. Consequently, Catlin decided that the damage to Lee’s roof was not caused by winds from Hurricane Ike.

    Meanwhile, Lee’s contractor, Emergency Services, prepared a report estimating that the total cost of repairing the roof would be $871,187. Engle Martin’s estimate for repair of the roof was $22,864.

    Lee filed suit for breach of contract, breach of the duty of good faith and fair dealing, and violations of the Texas Insurance Code. Catlin moved for summary judgment on all claims but breach of contract, arguing that because there was a bona fide dispute concerning the cause of the damages and whether they were covered under the policy, there was no evidence of bad faith or violations of the Texas Insurance Code.

    Read the full story…

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


    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…


    Windows and Lawsuits Fly at W Hotel

    July 5, 2011 — CDJ Staff

    An Austin, Texas lawyer has filed a lawsuit against Starwood Hotels and Resorts, the operator of the W Hotel Austin, after two people were struck by glass which fell from the hotel’s balconies. YNN in Austin reports that the hotel has been closed indefinitely as construction workers removed panels. An additional three panels fell before work started. Randy Howry, the lawyer representing the injured parties, notes that in May glass falling from the W Hotel in Atlanta killed one woman and injured another. “Seventeen days pass and we put them on notice, our clients have put them on notice, yet nothing has been done an only after the glass fell yesterday did they do something about it,” YNN quotes Howry.

    The hotel released a statement that they will be replacing all of the balcony glass to ensure safety for their guests and the general public. They relocated all hotel guests and coordinated with Austin officials to close adjacent sidewalks and roads. The statement identifies the firms involved with the design and construction of the balconies.

    Read the full story …


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

    October 28, 2011 — CDJ Staff

    The California Court of Appeals ruled on September 20, 2011 in the case of Arundel Homeowners Association v. Arundel Green Partners, a construction defect case involving a condominium conversion in San Francisco. Eight years after the Notice of Completion was filed, the homeowners association filed a lawsuit alleging a number of construction defects, including “defective cabinets, waterproofing membranes, wall-cladding, plumbing, electrical wiring, roofing (including slope, drainage and flashings), fire-rated ceilings, and chimney flues.” Three years of settlement negotiations followed.

    Negotiations ended in the eleventh year with the homeowners association filing a lawsuit. Arundel Green argued that the suit should be thrown out as California’s ten-year statute of limitations had passed. The court granted judgment to Arundel Green.

    The homeowners then filed for a new trial and to amend its complaint, arguing that the statute of limitations should not apply due to the doctrine of equitable estoppel as Arundel Green’s actions had lead them to believe the issues could be solved without a lawsuit. “The HOA claimed that it was not until after the statute of limitations ran that the HOA realized Arundel Green would not keep its promises; and after this realization, the HOA promptly brought its lawsuit.” The trial court denied the homeowners association’s motions, which the homeowners association appealed.

    In reviewing the case, the Appeals Court compared Arundel to an earlier California Supreme Court case, Lantzy. (The homeowners also cited Lantzy as the basis of their appeal.) In Lantzy, the California Supreme Court set up a four-part test as to whether estoppel could be applied. The court applied these tests and found, as was the case in Lantzy, that there were no grounds for estoppel.

    In Arundel, the court noted that “there are simply no allegations that Arundel Green made any affirmative statement or promise that would lull the HOA into a reasonable belief that its claims would be resolved without filing a lawsuit.” The court also cited Lesko v. Superior Court which included a recommendation that the plaintiffs “send a stipulation?Ķextending time.” This did not happen and the court upheld the dismissal.

    Read the court’s decision…


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

    June 19, 2012 — Chad Johnson

    In D.R. Horton, Inc.-Denver v. The Travelers Indem. Co. of Am., 10-CV-02826-WJM-KMT, 2012 WL 527204 (D. Colo. Feb. 16, 2012), the court was asked to rule on Travelers’[1] motion to dismiss D.R. Horton, Inc. ?Äì Denver’s (“DRH”) claim that Travelers violated the Colorado Consumer Protection Act (“CCPA”).

    In the underlying construction defect case (“CD case”), DRH, as the developer and general contractor of a construction project, tendered the defense of the CD case to certain subcontractors and to Travelers as an insurer to those subcontractors. Travelers accepted the duty to defend DRH. DRH hired counsel to defend it, and the attorney fees and costs of suit were billed to Travelers. However, for a period of over five years, Travelers failed to actually pay any portion of the defense of DRH. Finally, on October 31, 2008, Travelers offered checks for payment of only 4% of the costs and fees incurred. DRH then returned the checks to Travelers and provided Travelers with authority to support its position that the amounts in Travelers’ checks were inadequate. Thereafter, Travelers dug its heels in, and resubmitted the same checks.

    DRH was then forced to file a coverage action against Travelers for declaratory judgment, breach of contract, bad faith breach of insurance contract, and deceptive trade practices under the CCPA. In its motion to dismiss DRH’s CCPA claim, Travelers’ argued that DRH failed to plead specific facts that Travelers engaged in a deceptive trade practice under C.R.S. § 6-1-105, and DRH failed to plead sufficient facts showing that Travelers’ actions significantly affect the public ?Äì a necessary element of a CCPA claim.

    Read the full story…

    Reprinted courtesy of Chad Johnson, Higgins, Hopkins, McLain & Roswell, LLC. Mr. Johnson can be contacted at johnson@hhmrlaw.com


    Wine without Cheese? (Why a construction contract needs an order of precedence clause)(Law Note)

    August 11, 2011 — Melissa Brumback

    For today’s law note, I’m addressing a comment that came to me last week from Dave O’Hern of Miller O’Hern Construction.  Dave writes:

    I am a general contractor doing a fuel tank replacement project for our county. In the specifications there is a spec for a UL 142 tank, on the plans the spec references UL 2085 ? a much more expensive tank. My subcontractor bid the UL 142 tank. The specifications state that the specs and plans are on the same level of precedence.

    The county wants me to furnish the more expensive tank without compensation citing the clause that states the plans and specs are complementary and what is called for by one is binding as if called by all and the most stringent requirement will apply.

    Read the full story…

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


    Home Sales Still Low, But Enough to Spur Homebuilders

    August 16, 2012 — CDJ Staff

    Although new home sales are still fifty percent below the average over the last forty years, the housing rebound has sent stock of homebuilders up 53 percent this year, during the same period, the S&P 500 rose only 12 percent. The San Francisco Chronicle reports that from 2005 through 2011, homebuilder stocks trailed the S&P 500.

    The growth isn’t limited to homebuilders alone. Building suppliers are also seeing a growth in sales, with profits for companies that make gypsum wallboard, cabinetry, plumbing products, and other items used in home building.

    Homebuilders have also been able to raise prices. Standard Pacific Corp of Irvine, California has raised prices and cut incentives. Nevertheless, the buyers still come. PulteGroup and D.R. Horton are also raising prices.

    Read the full story…


    Florida Property Bill Passes Economic Affairs Committee with Amendments

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

    The Florida Property Bill (HBB 803) was passed by the Economic Affairs Committee by a vote of 11-7, according to Property Casualty 360, after adopting nine new amendments. The additions to the bill included limiting notice of claims to a set number of years, extending the statute of limitation on property claims from five years to six years, among others.

    HB 803 and SB 408, the Senate companion bill, focus primarily on residential property insurance. They make changes to the Florida Hurricane Catastrophe Fund, while also promoting increased notification of policy changes to policyholders. Sections of the bills provide minor fixes such as renaming Citizens Property Insurance Corporation to Taxpayer-Funded Property Insurance Corporation. However, other sections of the bills contain more significant policy changes such as sinkhole coverage and hurricane claims.

    The bills’ intent, according to the SunSentinel.com, is to reduce fraudulent claims and to bring new insurers into the insurance market. However, SunSentinel.com also reports that the bills may drastically increase property insurance premiums.

    Read the full Property Casualty 360 article...

    Read the full Sun Sentinel article...


    Record-Setting Construction in Fargo

    November 7, 2012 — CDJ Staff

    Prairie Business reports that Fargo is experiencing the most new construction it has ever seen, totaling $434 million in value, which exceeds the previous high in 2006 of $428 million. Many of the construction starts are for single family homes, although there is also an increase in construction of apartments and townhomes.

    The Home Builders Association of Fargo-Moorhead also noted that there was also a large of remodeling projects. Terry Becker, the president of the HBA, said that “remodeling is just huge right now.”

    Read the full story…