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Mealey's Construction Defects

  • July 01, 2020

    Roofing Subcontractor’s Arbitration Award For Nonpayment Affirmed By Judge

    MIAMI — A federal judge in Florida on June 18 granted a roofing subcontractor’s motion to confirm a $681,168.40 arbitration award based on a contractor’s failure to pay for work on a federal building in Miami pursuant to a subcontract, holding that an arbitrator was impartial and properly considered evidence, and ruled that summary judgment should be awarded against the bond surety company hired to ensure that the contractor timely paid the subcontractor (United States, ex rel. Salomon Construction & Roofing Inc. v. BES Design/Build LLC, et al., No. 18-cv-21059-UU, S.D. Fla., 2020 U.S. Dist. LEXIS 107775).

  • June 30, 2020

    Pennsylvania Panel Orders Clarification Of Ruling Vacating Arbitrator’s Decision

    PHILADELPHIA — A trial court judge in Pennsylvania was ordered by an appeals court panel on June 26 to specify the material evidence that would be produced during discovery that warrants the decision to vacate an arbitrator’s finding that a couple’s construction defect claims are barred by the 12-year statute of repose because the information is necessary for the panel to have jurisdiction over the builder’s appeal (David Kopew, et al. v. Toll Brothers Inc., et al., No. 760 EDA 2019, Pa. Super., 2020 Pa. Super. Unpub. LEXIS 2075).

  • June 25, 2020

    Homebuilder’s Timeliness Challenge In Defects Suit Premature, Judge Rules

    PITTSBURGH — A federal judge in Pennsylvania on June 22 overruled a homebuilder’s arguments that a breach of contract claim in a construction defects suit is barred by a one-year limitations period in the purchase agreement, holding that discovery is needed to determine the applicability of the repair doctrine and whether the limitations period is “manifestly unreasonable” (Laura Catena, et al. v. NVR Inc. doing business as Heartland Homes of PA, No. 20-CV-00160-MJH, W.D. Pa., 2020 U.S. Dist. LEXIS 108921).

  • June 25, 2020

    Panel Upholds Class Cert To Unit Owners Over Damages In Sprinkler Replacement Suit

    MIAMI — A Florida appeals panel on June 24 upheld a trial court judge’s non-final order granting a motion for class certification to condominium unit owners seeking compensation for damages to their units that occurred when the building’s fire sprinkler system was removed and replaced, holding that the damages were common to each unit owner (Allied Tube & Conduit Corp., et al. v. Latitude on the River Condominium Association Inc., Nos. 3D19-2054, 3D19-2053, 3D19-2051, 3D19-2048, 3D19-2046, 3D19-2044, Fla. App., 3rd Dist., 2020 Fla. App. LEXIS 8914).

  • June 25, 2020

    Judge’s Rejection Of General Contractor’s Settlement And Release Defense Affirmed

    SAN FRANCISCO — A California appeals panel on June 4 upheld a trial court judge’s rejection of a general contractor’s settlement and release defense in a suit over a remodeling project that involved the faulty installation of window and doors that later leaked, finding that a couple sufficiently proved during a trial that damages they sustained were the result of work performed by the general contractor and not barred by settlement agreements the plaintiffs entered into with three subcontractors (Philip Stolp, et al. v. Murphy-True Inc., et al., Nos. A153637, A154770, A155426, Calif. App., 1st Dist., 1st Div., 2020 Cal. App. Unpub. LEXIS 3495).

  • June 25, 2020

    Builder Says Gross Negligence Claim Is An Improper Attempt At Punitive Damages

    CLEARWATER, Fla. — A home builder accused of construction defects and attempting to cover up the defects rather than repair them says in a May 11 motion to dismiss filed in Florida state court that a man’s amended complaint that the addition of a claim for gross negligence should be dismissed and stricken because it is an attempt to obtain punitive damages without complying with state law requirements (John Michaelos v. Monogram Builders Inc., No. 17-002803-CI, Fla. Cir., 6th Cir., Pinellas Co., 2020 FL Cir. Ct. Motions LEXIS 791).

  • June 24, 2020

    Judge: Couple’s Negligence Claim Over Water Intrusion Not Barred By Warranty

    NEW CASTLE, Del. — A Delaware judge on May 27 refused to dismiss a couple’s lawsuit against the builder of their home, finding that the court has subject matter jurisdiction because their negligence claim is not subject to an arbitration clause in the home warranty and because the couple can pursue a claim for negligence instead of a claim for breach of warranty (Ryan Altenbaugh, et al. v. Benchmark Builders Inc., et al., No. N19C-11-046, Del. Super., New Castle Co.).

  • June 19, 2020

    Panel Affirms Rescission Of Modular Home’s Sale For Defects, Vacates Attorney Fees

    LAKE CHARLES, La. — A Louisiana appeals court panel on June 17 affirmed a trial court judge’s ruling that a couple could rescind the May 2016 purchase of a modular home on the ground that it suffered from construction defects but vacated an attorney fee award of $10,000 after finding that the seller could not have known of the defects at that time of the sale (Steve Dodge, et al. v. White’s Mobile Homes Inc., No. 19-759, La. App., 3rd Cir., 2020 La. App. LEXIS 912).

  • June 17, 2020

    Plaintiffs’ Expert:  Defects Require Removal, Replacement Of Veneers, Window

    WILMINGTON, Del.— An engineer proffered as an expert witness for plaintiffs who say that defects in the construction of their homes allowed for water instruction and ensuing damages offered his opinions on the causes of the defects, as well as suggested repairs, in a disclosure filed in Delaware state court on June 16 (Greg Porter, et al. v. Capano Homes Inc., No. N19C-05-208, Del. Super., New Castle Co.).

  • June 16, 2020

    Dismissal Of Association’s Second Defects Suit As Untimely Upheld On Appeal

    TRENTON, N.J. — A New Jersey appeals panel on June 15 affirmed a trial court judge’s sua sponte dismissal of a condominium association’s second construction defects lawsuit, holding that the action was barred by the state’s six-year statute of limitations because the association was aware of the alleged defects that were causing water intrusion in September 2008 (Riva Pointe at Lincoln Harbor Condominium Association Inc. v. Tishman Construction Corp., et al., No. A-3568-18T2, N.J. Super., App. Div., 2020 N.J. Super. Unpub. LEXIS 1142).

  • June 16, 2020

    Dispute Over Arbitrability, Injunction Carveout Heading Back To High Court

    WASHINGTON, D.C. — In its June 15 order list the U.S. Supreme Court announced that it will hear, for a second time, a dispute between two distributors of dental equipment that poses the question of whether an exemption in an arbitration agreement for certain claims negates what a petitioner describes as “an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator” (Henry Schein Inc. v. Archer and White Sales Inc., No. 19-963, U.S. Sup.).

  • June 12, 2020

    Arbitration Clause In Home Sales Agreement Is Enforceable, Panel Rules

    COLUMBIA, S.C. — A South Carolina appeals panel on June 10 reversed a trial court’s decision denying a developer’s motion to compel arbitration of a construction defects lawsuit, holding that the Federal Arbitration Act (FAA) governs the arbitration clause in the purchase and sales agreements (PAs) for the homes and that the arbitration clause is valid (Patricia Damico, et al. v. Lennar Carolinas LLC, et al., No. 5730, S.C. App., 2020 S.C. App. LEXIS 50).

  • June 10, 2020

    Chancery Judge Adopts Master’s Recommendation To Deny Dismissal Of Mold Suit

    GEORGETOWN, Del. — A Chancery Court judge in Delaware on June 5 overruled a builder’s exceptions to a Master in Chancery’s Feb. 6 recommendation to deny its motion to dismiss a woman’s lawsuit seeking equitable rescission of her home after she discovered mold, holding that the court had subject matter jurisdiction and that the woman sufficient stated claims for trespass and intentional misrepresentation (Cynthia R. Kane v. NVR Inc., No. 2019-0569-PWG, Del. Chanc., 2020 Del. Ch. LEXIS 206).

  • June 04, 2020

    Colorado Senate Rejects Construction Defect Bill Aimed At Extending Filing Window

    DENVER — The Colorado Senate on May 29 rejected a bill that would have extended the statute of repose and statute of limitations for lawsuits involving construction defects.

  • June 04, 2020

    New Lawsuits Say Building Defects Caused Water Infiltration, Mold Growth

    Two men filed a lawsuit against their homebuilder in Florida state court on May 15, claiming that the improper installation of stucco on the home resulted in water damage, and plaintiffs in Texas and South Carolina have brought lawsuits in respective state courts saying defects in the construction of their homes caused water infiltration and mold growth

  • June 03, 2020

    Roofing Company Opposes Target’s Request To Add 33 Stores To Lawsuit

    AKRON, Ohio — A company accused of manufacturing and selling defective roofing membranes to Target Corp. on June 1 opposed the retailer’s motion to file a second amended complaint in a federal court in Ohio, arguing that amending the complaint after a court-imposed deadline would be prejudicial because it would increase damages by almost $6 million (Target Corp. v. Seaman Corp., No. 18-cv-2783, N.D. Ohio).

  • June 03, 2020

    Judge Allows Hotel Owner’s Breach Of Fiduciary Duty Claim Against Builder

    MIAMI — A state court judge in Florida on May 28 granted in part a builder’s motion for partial dismissal of counterclaims brought by the owner of a hotel that stopped paying for the work after complaining of construction defects, finding that the owner can pursue a counterclaim for breach of fiduciary duty and amend its request for consequential damages stemming from the alleged brief (Tutor Perini Building Corp., et al. v. 299 N. Federal Master LLC, et al., No. CACE-19-021995, Fla. Cir., 17th Cir., Broward Co.).

  • May 26, 2020

    Judge Dismisses Hotel Franchisee’s Negligence Claim Against Architect

    RALEIGH, N.C. — A hotel franchisee can pursue contract-based claims stemming from an architecture design firm’s failure to provide building plans that are acceptable to the franchisor and the local municipality, a federal judge in North Carolina ruled May 21, but the judge dismissed its negligence claim because it could seek damages on the breach of contract claims (New Dunn Hotel LLC, et al. v. K2M Design Inc., No. 20-cv-107-FL, E.D. N.C., 2020 U.S. Dist. LEXIS 89548).

  • May 21, 2020

    5th Circuit Dismisses Appeal Over $300,000 Chinese Drywall Claim Award

    NEW ORLEANS — A Fifth Circuit U.S. Court of Appeals panel on May 20 dismissed a man’s appeal over a more than $300,000 award he obtained as part of a settlement agreement over defective drywall made in China after agreeing with the manufacturer that the agreement clearly states that the man waived his right to appeal by accepting the amount (In re: Chinese-Manufactured Drywall Products Liability Litigation; Guilfort Dieuvil v. Gebrueder Knauf Verwaltungsgesellschaft KG, et al., No. 20-30120, 5th Cir.).

  • May 21, 2020

    Sherwin-Williams Seeks Dismissal Of Proposed Class Over Deck Stains

    CLEVELAND — The Sherwin-Williams Co. filed two motions to dismiss in federal court in Ohio on May 18, arguing that a proposed class action alleging that its 16-product line of SuperDeck and Duckback deck stains is defective because the products prematurely chip, flake and fade fails to sufficiently state claims for relief and that the plaintiffs lack standing to bring any allegations arising from any products they did not purchase or use (Eric Rusnock, et al. v. Sherwin-Williams Co., No. 19-cv-908, N.D. Ohio).