Mealey's Construction Defects

  • July 01, 2021

    Chinese Drywall Suit Untimely; Equitable Tolling Does Not Apply, 5th Circuit Rules

    NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals on June 8 denied rehearing of its ruling affirming summary judgment in favor of a manufacturer of Chinese-manufactured drywall, ruling that the equitable tolling principles of American Pipe did not render a homeowner’s claim for damages timely.

  • July 01, 2021

    Association Appeals Florida Court’s Ruling On Statute Of Repose

    DAYTONA BREACH, Fla. — Oral argument was requested June 4 in a Fifth District Florida Court of Appeal case challenging a trial court’s grant of partial summary judgment on claims related to allegations of faulty stucco work on townhomes based on calculating Florida’s statute of repose from the issuance of certificates of occupancy, according to the court docket.

  • July 01, 2021

    Roofing Spat Dismissed Days After Judge Allows Acts-Of-God Affirmative Defense

    MINNEAPOLIS — Days after a federal judge in Minnesota ruled that the maker of allegedly defective roofing membranes may plead acts of God but not spoliation of evidence as an affirmative defense in response to a supplemental complaint from Target Corp. that increased the number of stores at issue by two, the parties on June 30 filed a stipulation of dismissal with prejudice and the judge dismissed the case.

  • June 30, 2021

    11th Circuit Affirms Drywall Class Counsel Award From Individual Counsel Fees

    ATLANTA — It was not an abuse of discretion to award 45% of attorney fees obtained by individual counsel who negotiated private settlements in fractured multidistrict litigation against Chinese drywall manufacturers to the global settlement class counsel as common benefit costs and fees, the 11th Circuit U.S. Court of Appeals ruled June 9, affirming the judgment of a federal judge in Florida.

  • June 30, 2021

    HOA Appeals Arbitration Order For Some Claims To Florida Appeals Court

    TALLAHASSEE, Fla. — A homeowners’ association that is appealing a trial court’s ruling compelling arbitration of its claims in regard to 71 of 148 homes in a community based on the developer’s assertion that the original owners are bound by an arbitration agreement and still held the deeds to those homes has moved for oral argument in the case, according to a May 12 docket entry in the First District Florida Court of Appeal.

  • June 30, 2021

    Florida Condo Owner Files Class Suit Over Building’s Partial Collapse

    MIAMI — In a putative class complaint filed June 28 accusing a condominium association at a Surfside, Fla., building that partially collapsed on June 24 of negligence and breach of contract, a condo owner asks that the Miami-Dade County, Fla., Circuit Court coordinate all the litigation and discovery that will ensue as “there are, and will be, many more victims of this terrible disaster and any and all insurance proceeds need to be gathered and shared by the proposed class appropriately and equitably” and appoint her counsel as interim lead counsel.

  • June 30, 2021

    Homeowners Challenge Expert, Claims Exclusion In Suit Over Defective Roofs

    RIVERSIDE, Calif. — A trial judge improperly excluded expert testimony, limited defective roof claims to actual damage and permitted the builder to raise an untimely statute of limitations defense, two homeowners tell a California appellate court in a May 17 opening brief asking for reversal of judgment and a new trial.

  • June 29, 2021

    Louisiana Panel Upholds Discretionary Immunity For Parish Government

    BATON ROUGE, La. — Louisiana statutes give a parish government and its employees an affirmative defense of discretionary immunity against claims related to issuance of permits and approval of a subdivision that was damaged by flooding, a Louisiana appeals panel ruled June 22, partly affirming and partly reversing a trial court’s judgment in favor of the parish government and its employees on several motions for summary judgment.

  • June 28, 2021

    Judge Allows Acts-Of-God Affirmative Defense In Roofing Spat, Strikes Spoliation

    MINNEAPOLIS — The maker of allegedly defective roofing membranes may plead an acts-of-God affirmative defense in response to a supplemental complaint from Target Corp. that increased the number of stores at issue by two, a federal judge in Minnesota ruled June 21, denying Target’s motion to strike newly asserted affirmative defenses on that count but granting it as to spoliation of evidence, which the judge said “is not an affirmative defense.”

  • June 25, 2021

    Some Class Settlement Opt-Out Forms Struck; Sanctions Denied In PEX Piping Suits

    SAN ANTONIO — Ruling on motions for sanctions and curative action filed simultaneously by NIBCO Inc. in two parallel class actions over allegedly faulty piping after counsel in one of the cases sent communication to class members in the other case after a preliminary settlement was reached urging them to opt out, a federal magistrate judge on June 10 issued an order in the preliminary settled case striking certain class settlement opt-out forms and reopening the opt-out period for affected class members but denying sanctions and an order on June 15 in the other case dismissing it in part as moot.

  • June 24, 2021

    North Carolina Panel Affirms Attorney Fee Award To Defendant, Vacates Amount

    RALEIGH, N.C. — A trial court was within its discretion to award a reasonable attorney fee to a contractor because the court’s findings of fact support a conclusion that homeowners who asserted claims of fraud and deceptive trade practices “should have known that the action was frivolous or malicious,” the North Carolina Court of Appeals ruled June 15, vacating and remanding the $12,000 award amount because the trial court didn’t support it with sufficient findings of fact.

  • June 23, 2021

    Magistrate Dismisses Consumer Fraud Claim In Illinois Breach Of Contract Suit

    EAST ST. LOUIS, Ill. — Standing alone, a property owner’s allegations that a contractor failed “to fulfill the express and implied promises in the contract” to repair a roof are not actionable under the Illinois Consumer Fraud Act, a federal magistrate judge in Illinois ruled June 15, granting the contractor’s motion to dismiss as to the consumer fraud claim but denying dismissal as to the breach of contract claim.

  • June 21, 2021

    Justice Dismisses Owner’s Foundational Damage Suit Against Neighbors, Engineer

    BROOKLYN, N.Y. — A New York state court justice on May 26 dismissed a property owner’s suit against the owners of a neighboring building and their engineer for foundational damages caused by construction, finding that the engineer did not work on the foundation and that the claims against the neighboring owners were time-barred.

  • June 18, 2021

    Washington Supreme Court Asked To Decide If Contractor Liability Should Be Limited

    OLYMPIA, Wash. — Five construction industry associations appearing as amici curiae in support of a contractor on May 10 urged the Washington Supreme Court to reverse a state appeals court ruling that overturned precedent limiting a contractor’s liability when the contractor follows the project owner’s plans and specifications.

  • June 17, 2021

    New Jersey Supreme Court Won’t Hear Dispute Over Leaky Window Damage

    TRENTON, N.J. — In a trio of orders issued June 1, the New Jersey Supreme Court announced that it will not review an October appellate decision that revived allegations by a condominium owners association that a window installer and others violated a preservation easement deeded to two historic buildings.

  • June 16, 2021

    Homeowners Get Attorney Fees On Top Of Damages For Defects, Tennessee Panel Rules

    NASHVILLE, Tenn. — Homeowners won twice June 10 when a Tennessee appeals court affirmed a $125,000 damages award for their home’s construction defects and reversed denial of an award for their attorney fees and remanded for a calculation of the fees and costs they are entitled to for receiving the “significant” damages award.

  • June 15, 2021

    Michigan Court: Previous Defect Claim Bars Later Roof Collapse Claims

    DETROIT — Res judicata bars commercial building entities’ suit because even if the specific defects giving rise to a roof collapse weren’t known in a previous construction defects lawsuit, due diligence would have uncovered them, a divided Michigan appeals court said June 3.

  • June 11, 2021

    Couple:  Knowledge Of Leaks Did Not Equal Knowledge Of Water Intrusion Issue

    NEW CASTLE, Del. — A Delaware couple tells the Delaware Supreme Court in a June 8 brief that their knowledge of two minor leaking incidents in their new home did not constitute constructive knowledge of a “systemic and catastrophic” water intrusion issue, arguing that a trial court incorrectly found that because of these earlier incidents, their later claim was barred by the statute of limitations.

  • June 02, 2021

    Homeowners In 4 New Florida Lawsuits Say Stucco Was Improperly Installed

    Homeowners in four lawsuits filed against builders in state courts in Florida during May claim that their homes have been damaged by stucco that was not installed in compliance with state and local building codes as well as American Society for Testing and Materials’ (ASTM) standards.

  • June 02, 2021

    Subsequent Buyers Say Enforcing Arbitration Clause Would Be Unconscionable

    TALLAHASSEE, Fla. — A Florida couple told the state’s high court in a reply brief filed May 6 that enforcing an arbitration provision contained in the original deed to a home they purchased would be unconscionable because they had no notice of the clause and were not in contractual privity with the builder of the home.

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