Newsletter RSS

Mealey's Construction Defects

  • April 25, 2018

    Idaho High Court Revives Couple’s Negligence Claim Over Faulty Tub Installation

    BOISE, Idaho — The Idaho Supreme Court on April 24 reinstated a couple’s negligence claim based on a plumber’s failure to properly install a bathtub in their vacation home, holding that the plaintiffs did not need to strictly comply with the notice requirements of the state’s Notice and Opportunity to Repair Act (NORA) (Scott Davison, et al. v. DeBest Plumbing Inc., No. 44625, Idaho Sup., 2018 Ida. LEXIS 98).

  • April 20, 2018

    Judge Properly Denied Classwide Arbitration Over Home Defects, Panel Says

    FORT WORTH, Texas — A trial court judge in Texas did not err when refusing to subject a home warranty company to classwide arbitration for claims brought by a couple, a Texas appeals panel ruled April 19, holding that the matter was a gateway issue properly addressed by the judge and that the couple’s limited warranty with the company did not allow for classwide arbitration (Nathan Robinson, et al. v. Home Owners Management Enterprise Inc., et al., No. 02-16-00380-CV, Texas App., 2nd Dist., 2018 Tex. App. LEXIS 2787).

  • April 20, 2018

    Appeals Court Revives Some Subsequent Purchasers’ Claims Over Soil Conditions

    SACRAMENTO, Calif. — A California appeals panel on April 16 revived claims brought by three subsequent purchasers and one original buyer of single-family homes that sustained damages as a result of improper soil compaction and bad soil conditions, finding that their claims were not barred by the state’s statute of limitations (Donald Holsapple, et al. v. Wallace-Kuhl & Associates Inc., et al., Nos. C072369, C074737, Calif. App., 3rd Dist., 2018 Cal. App. Unpub. LEXIS 2545).

  • April 17, 2018

    Nevada High Court Finds Homeowners Must Arbitrate Claims Against Developer

    CARSON CITY, Nev. — Arbitration provisions in purchase and sales agreements (PSAs) as well as in a common-interest community’s covenants, conditions and restrictions (CC&Rs) are enforceable under the Federal Arbitration Act (FAA) because construction defects allegations brought by homeowners within the community involve interstate commerce, the Nevada Supreme Court ruled April 12 in reversing a trial court judge’s decision denying U.S. Home Corp.’s motion to compel arbitration (U.S. Home Corp. v. The Michael Ballesteros Trust, et al., No. 68810, Nev. Sup., 2018 Nev. LEXIS 28).

  • April 17, 2018

    Federal Appeals Court Finds Contractor’s Invocation Of Arbitration Untimely

    WASHINGTON, D.C. — A District of Columbia Circuit U.S. Court of Appeals panel on April 16 affirmed a lower court judge’s denying a motion to compel arbitration filed by a contractor accused of construction defects, finding that its attempt to invoke its right to arbitration in a footnote in a post-answer motion to dismiss was untimely (Stephen Kelleher v. Dream Catcher LLC, et al., No. 17-7104, D.C. Cir.).

  • April 16, 2018

    Chinese Drywall MDL Judge Refuses Reconsideration Of Ruling Enjoining Claims

    NEW ORLEANS — The federal judge in Louisiana overseeing claims stemming from allegedly defective drywall manufactured in China on April 12 refused to reconsider a Feb. 9 ruling that barred a couple and a contractor from pursuing claims against a manufacturer due to a 2013 settlement agreement, finding that the contractor did not successfully argue that sufficient grounds exist to disturb the ruling (In re:  Chinese-Manufactured Drywall Products Liability Litigation, MDL 2047, E.D. La., 2018 U.S. Dist. LEXIS 62791).

  • April 13, 2018

    Magistrate Judge Orders Homebuilder To Respond To Putative Class’ Subpoena

    DENVER — A homebuilder that constructed homes with joists that are coated with a flame-retardant formaldehyde-based resin that emits noxious fumes was ordered April 10 by a federal magistrate judge in Colorado to respond to a subpoena filed by plaintiffs leading a putative class action suit in Delaware federal court seeking six categories of documents, finding that the plaintiffs can seeking merits-related information before the class certification stage (Infinity Home Collection v. Jamal Coleman, et al., No. 17-mc-0200-MSK-MEH, D. Colo., 2018 U.S. Dist. LEXIS 60627).

  • April 12, 2018

    Judge Stays Coverage Dispute Pending Resolution Of Canadian Lawsuits

    NEW YORK — After finding that disputes over insurers’ alleged duty to defend and indemnify were not ripe for consideration, a New York federal judge on March 31 declined to rule on summary judgment motions and stayed the case pending the outcome of underlying property damage litigation pending in Canada (Lafarge Canada Inc. v. American Home Assurance Co., No. 15-CV-8957, S.D. N.Y., 2018 U.S. Dist. LEXIS 56123).

  • April 11, 2018

    Minnesota Appeals Court Finds Developer Can Pursue Cross-Claim Against Builder

    ST. PAUL, Minn. — An appeals panel in Minnesota in April 9 affirmed a trial court judge’s decision allowing a condominium developer to pursue cross-claims for indemnity from a builder over alleged construction defects, holding that the law-of-the-case doctrine as well as the doctrine of res judicata did not bar the developer from moving for relief (650 North Main Association v. Frauenshuh Inc., et al., No. A17-0890, Minn. App., 2018 Minn. App. Unpub. LEXS 271).

  • April 9, 2018

    West Virginia High Court Vacates Dismissal Sanction In Water Intrusion Suit

    CHARLESTON, W.Va. — A trial court judge in West Virginia erred when dismissing a couple’s construction defects lawsuit against their homebuilder as a sanction for improperly serving him with a subpoena, the state’s high court ruled April 6, holding that the sanction was too harsh (Terri Smith, et al. v. Robert Todd Gebhardt, et al., No. 17-0206, W.Va. Sup., 2018 W.Va. LEXIS 242).

  • April 5, 2018

    Panel: Judge Properly Applied Subcontractor Settlements To Contract Claims

    WEST PALM BEACH, Fla. — A Florida appeals panel on March 21 upheld a trial court judge’s decision to apply settlement amounts a couple reached with numerous subcontractors accused of defective construction to breach of contract claims they asserted against the builder and sellers of the house, finding that the claims overlapped (Addison Construction Corp., et al. v. Leo A. Vecellio Jr., et al., Nos. 4D16-0618, 4D16-0863, Fla. App., 4th Dist., 2018 Fla. App. LEXIS 3942).

  • April 5, 2018

    Idaho Supreme Court Upholds Builder’s Summary Judgment Award In Defects Case

    BOISE, Idaho — The Idaho Supreme Court on April 4 affirmed a homebuilder’s award of summary judgment on a man’s claim for breach of the implied warranty of habitability stemming from alleged construction defects that caused water intrusion, holding that the claim was untimely because it arose in contract (Edmond Petrus, et al. v. Chris Kirk, et al., No. 44784, Idaho Sup., 2018 Ida. LEXIS 75).

  • April 4, 2018

    California Appeals Court Tells Lower Court To Stay Defects Lawsuit

    FRESNO, Calif. — A California appeals panel on April 3 ordered a trial court to vacate a 2014 ruling denying a homebuilder’s motion to stay a construction defects lawsuit brought by the owners of 37 homes so they can complete the presuit requirements of the Right to Repair Act, following a Jan. 18 ruling by the state’s supreme court that found that the act applied to all construction defect claims (McMillin Albany LLC, et al. v. Superior Court of Kern County, No. F069370, Calif. App., 5th Dist., 2018 Calif. App. Unpub. LEXIS 2242).

  • April 4, 2018

    Judge Dismisses Majority Of Claims Over Shingles, Allows Express Warranty Claim

    TRENTON, N.J.— A federal judge in New Jersey on April 2 dismissed the majority of claims brought by buyers of allegedly defective white-cedar roofing shingles, finding that the plaintiffs could not pursue claims for breach of contract, breach of implied warranty and breach of implied warranty of merchantability due to lack of privity to contracts with the manufacturer and no agency relationship between Maibec Inc. and the retailers (Ilene Stern, et al. v. Maibec Inc., No. 11-3951, D. N.J., U.S. Dist. LEXIS 55388).

  • April 3, 2018

    Retailer Maintains Dimensional Lumber Labels Are Not Misleading

    CHICAGO — Menard Inc. tells the Seventh Circuit U.S. Court of Appeals in a March 26 brief that a federal judge in Illinois did not err in dismissing a class action suit contending that the labels for dimensional lumber violate the Illinois Consumer Fraud Act (ICFA), maintaining that the labels are not deceptive because they do not contain the word inch (Michael Fuchs, et al. v. Menard Inc., No. 17-3260, 7th Cir.).

  • April 2, 2018

    Buyers Of Allegedly Defective Shingles Ask 3rd Circuit To Rehear Class Arguments

    PITTSBURGH — Plaintiffs leading a proposed four-state class action suit against Owens Corning and Owens Corning Sales LLC over allegedly defective roofing shingles asked the Third Circuit U.S. Court of Appeals on March 29 for an en banc rehearing, claiming that a panel of the appeals court erred when upholding denial of their certification motion (Jamie Gonzalez, et al. v. Owens Corning, et al., No. 16-2653, 3rd Cir.).

  • March 26, 2018

    Appeals Court Reinstates Couple’s Breach Of Implied Warranty Claim Against Builder

    AUSTIN, Texas — A Texas appeals panel on March 22 reversed a ruling awarding summary judgment to a home builder and its president on a couple’s breach of the implied warranty of habitability claim, finding that it was timely and because they could pursue the claim as subsequent purchasers of the home (James Maroney, et al. v. Chip Buerger Custom Homes Inc., et al., No. 03-17-00355-CV, Texas App., 3rd Dist., 2018 Texas App. LEXIS 2082).

  • March 26, 2018

    Judge Finds Labeling On Dimensional Lumber Was Not Misleading, Dismisses Suit

    CHICAGO — A class action suit accusing Home Depot Inc. of violating the Illinois Consumer Fraud Act (ICFA) by selling lumber that was not the size described on its label was dismissed without prejudice on March 12 by a federal judge in Illinois, who found that the label was not misleading because it did not have unit indications aside from the number of feet the piece of wood measured (Mikhail Abramov, et al. v. Home Depot Inc., No. 17-cv-1860, N.D. Ill., 2018 U.S. Dist. LEXIS 39752).

  • March 21, 2018

    3rd Circuit Upholds No Class Certification In Defective Shingles Suit

    PHILADELPHIA — A Pennsylvania federal court did not abuse its discretion when it denied certification of two proposed classes in a lawsuit alleging defective roof shingles as the first class, consisting of consumers from all over the nation, can’t satisfy Federal Rule of Civil Procedure 23(a)’s commonality requirement and the second class fails to satisfy Rule 23(b)(3)’s predominance requirement, a Third Circuit U.S. Court of Appeals panel ruled March 19 (Jaime Gonzalez, et al. v. Owens Corning, et al., No. 16-2653, 3rd Cir., 2018 U.S. App. LEXIS 6757).

  • March 21, 2018

    Injured Cyclist Sues Designers, Builders, Inspector Of Collapsed Bridge

    MIAMI — A cyclist who was injured when a car swerving to avoid debris from a bridge that collapsed on the campus of Florida International University sued the entities involved in the bridge’s design, construction and inspection on March 19 in Florida state court, contending that the defendants breached their duties to ensure that the public was safe while the bridge was being built (Marquise Rashaad Hepburn v. Figg Bridge Engineers Inc., et al., No. 2018-008144-CA-01, Fla. Cir., Miami-Dade Co.).