Mealey's Construction Defects : Mealey's : Legal News & Analysis

Mealey's Construction Defects

February 06, 2023
California Supreme Court Will Not Hear Custom Home Construction Defects Dispute

SACRAMENTO, Calif. — The California Supreme Court denied a homeowner’s petition for review of his case in which a jury found against him on claims of defective construction brought against the contractors, managers and subcontractors who worked on his custom home.
February 02, 2023
Damages For Homeowners Affected By Chinese Drywall Limited By Florida Law

TAMPA, Fla. — Homeowners seeking damages under the Florida Deceptive and Unfair Trade Practices Act (FDUPTA) against a manufacturer of defective Chinese-manufactured drywall are limited to the reduction in value of the drywall as a result of the alleged defect, a federal judge in Florida ruled in adopting a magistrate judge’s recommendation on the manufacturer’s motion for summary judgment on the issue in 25 related cases.
February 01, 2023
Ohio Panel: Defective Pool And Deck Claims Are Covered By Consumer Sales Act

CANTON, Ohio — Defective construction claims brought by the estate of a homeowner against a contractor are covered by Ohio’s Consumer Sales Practices Act (CSPA) because the construction of the pool and deck were an improvement to an old home and not an “accessory construction,” an Ohio panel wrote in partially affirming and partially reversing a trial court’s judgment.
February 01, 2023
Texas Supreme Court: Children’s Home Defects Claims ‘Fully Joined’ With Parents’

AUSTIN, Texas — Two minor children can be compelled to arbitrate construction defects claims arising from mold in their family home because the petition filed by their parents, signatories of a purchase agreement containing an arbitration clause, did not distinguish between the four individuals on the breach of contract claim, the Texas Supreme Court held in a per curiam opinion reversing an appellate court’s judgment.
February 01, 2023
Split Ohio Panel Affirms Summary Judgment On Homeowners’ Tile Claims

TOLEDO, Ohio — Homeowners’ negligent design and negligent supervision claims are time-barred by the four-year statute of limitations while their claim for breach of the duty to build in a workmanlike manner fails because the allegedly defective floor joists were not hidden from a reasonably available inspection, an Ohio appellate court panel majority held in affirming a grant of summary judgment in favor of the defendant homebuilder.
January 31, 2023
Florida Federal Judge Partly Dismisses Fraud Claim, Leaves Others In Stucco Suit

MOBILE, Ala. — A Florida federal judge partially dismissed a fraudulent misrepresentation claim against a stucco manufacturer and completely dismissed that claim and a suppression claim against a stucco inspector and distributor but otherwise left the remaining claims alive against the manufacturer in a suit alleging the use of defective stucco products during the construction of a new home.
January 31, 2023
Pa. Panel: Homebuilder Failed To Properly Plead Statute Of Limitations Defense

HARRISBURG, Pa. — The statute of limitations did not serve to bar homeowners’ claims for breach of contract arising from alleged defective workmanship of a new home because the builder failed to plead the defense with specificity, a Pennsylvania appellate court panel held in affirming a trial court’s consolidated ruling on separate suits filed by the homeowners and the builder.
January 31, 2023
Texas High Court: Homeowner’s Wife, Children Must Arbitrate Home Defects Claims

AUSTIN, Texas — A homeowner’s wife and children must arbitrate mold claims relating to the house they occupy even though they were not signatories to the home’s purchase agreement, which contained an arbitration agreement, because they benefited from their occupancy of the home, the Texas Supreme Court held in reversing an appellate court’s decision finding that the doctrine of direct-benefits estoppel could not be applied to compel the wife and children to arbitrate.
January 30, 2023
N.Y. Justice: Property Manager Did Not Breach Contract In Balcony Defects Dispute

NEW YORK — A building unit owner’s association and its governing body failed to show that a property manager and its subsidiary breached their contractual duties by failing to investigate original defects in the concrete slabs of the balconies of a building, a New York justice held in granting the property manager and its subsidiary’s motion for summary judgment.
January 30, 2023
Oregon Panel: Statute Of Limitations Not Tolled In Water Intrusion Dispute

SALEM, Ore. — A homeowner’s breach of contract claims are barred by the six-year statute of limitations for contract actions because the homeowner filed suit 10 years after action accrued and the discovery rule does not serve to toll the statute, an Oregon panel held in affirming a trial court’s granting of the homebuilder’s motion for summary judgment.
January 30, 2023
Prior Mutual Release Dooms Subsequent Homeowners’ Defective Chimney Claims

DETROIT — The negligent construction claim of subsequent purchasers of a home with an allegedly defective chimney was properly dismissed by a trial court because the original homeowners released the defendant homebuilder from liability in a mutual release contained in a settlement agreement that resolved a dispute over fees from the home’s original construction, a Michigan panel held in affirming the trial court’s grant of summary disposition in favor of the builder.
January 25, 2023
S.C. Panel: Jury Properly Heard Issues Of Improper Sprinkler Installation

COLUMBIA, S.C. — A property owners association that brought claims of negligence for the alleged improper installation of sprinkler systems at a condominium complex was not entitled to a directed verdict against a subcontractor that installed the systems because the issues of building codes, building plans and defective parts in the systems were properly put before a jury, a South Carolina appellate panel found in affirming a trial court’s denial of a directed verdict.
January 25, 2023
Texas Panel: Statute Of Repose Applies To Condo Owners’ Latent Defects Case

DALLAS — The construction documents of a condominium do not create a genuine issue of material fact regarding the substantial completion date of the building, a Texas panel found in affirming a trial court’s grant of summary judgment, based on the statute of repose, in favor of the contractors who were sued by the building’s homeowners’ association for alleged latent construction defects.
January 24, 2023
California Panel Finds Leaky Roof Dispute Is Barred By Claim Preclusion

LOS ANGELES — A second lawsuit over an allegedly leaky roof brought by a building owner against a waterproofing company is barred by claim preclusion because the owner pursued the same primary right in both cases, a California appellate panel held in affirming a trial court’s granting of summary judgment.
January 23, 2023
Manufacturers Tell 9th Circuit Putative Homeowner Class Lacks Evidence Of Defect

SAN FRANCISCO — Two construction supply manufacturers in a Jan. 20 answering brief to the Ninth Circuit U.S. Court of Appeals aver that a federal judge properly refused to certify a class of homeowners bringing claims for violation of California’s unfair competition law (UCL) based on the manufacturers’ sale of allegedly defective connectors and anchors, writing that the plaintiffs’ expert failed to present evidence of a common defect.
January 23, 2023
Pennsylvania Federal Judge Trebles Homeowners’ Unfair Trade Practices Damages

PITTSBURGH — A Pennsylvania federal judge trebled two homeowners’ damages under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL) to deter the future conduct of the builder that defectively constructed their home and because a jury found that the homebuilder violated the UTPCPL on three occasions.
January 20, 2023
Certifier Of Brazilian Plywood And Its Accreditor Reaffirm Stance On Jurisdiction

FORT LAUDERDALE, Fla. — Two days after a Florida federal magistrate judge denied a motion for a temporary restraining order (TRO) filed by a coalition of American plywood manufacturers, a plywood certifying agency and its accreditor in support of their motion to dismiss reasserted their arguments that the Florida federal court lacked jurisdiction over negligence and false advertising claims brought by the coalition, which alleges that the agency is certifying substandard Brazilian plywood as meeting U.S. standards.
January 19, 2023
Alaska Federal Judge Denies Motion To Remand Putative Class Action Window Dispute

ANCHORAGE, Alaska — Remand of a defective window lawsuit is not warranted because the homeowners’ claims against an Alaskan window dealer do not trigger the local controversy exception to the Class Action Fairness Act (CAFA) as their allegations against the dealer are vague and minor compared to the allegations made against the window manufacturer, a nonlocal defendant, an Alaska federal judge held in denying the homeowners’ motion to remand while also granting them 30 days to file an amended complaint clarifying their allegations against the local window dealer.
January 19, 2023
Magistrate Judge: Roofer Showed Good Cause To Amend Answer In Wall Defect Suit

HAMMOND, Ind. — A roofing subcontractor who moved to amend its answer to name a nonparty as responsible for defects raised against it showed good cause to amend because it was not aware of the nonparty’s potential responsibility before a general contractor made expert disclosures after the deadline to amend, an Indiana federal magistrate judge held in granting the subcontractor’s motion to amend.
January 19, 2023
Homeowners Agree To Arbitrate Faulty Home Construction Claims But Request Stay

BALTIMORE — In response to a home developer’s motion to compel arbitration, a group of homeowners who allege that the homes purchased from the developer contained construction defects agreed that the remaining claims left in the case should be arbitrated but requested that the case be stayed, not dismissed.
January 19, 2023
Panel Manufacturer Waives Response To High Court Petition In London Fire Suit

WASHINGTON, D.C. — A manufacturer of building panels and its subsidiary waived their right to respond to a petition for writ of certiorari filed by former residents of a London high-rise public housing building destroyed by fire who are asking the high court whether the unavailability of punitive damages in an alternative forum should weigh against dismissal of a case on forum non conveniens grounds.
January 18, 2023
Parties In Water Damage Suit File Briefs On Jurisdiction Following Dismissals

CHARLESTON, S.C. —Homeowners and a subcontractor filed briefs in a South Carolina federal court addressing jurisdiction and supporting the homeowners’ motion to remand their case alleging water damage to newly built homes while the builder of the homes filed a brief opposing remand following the stipulated dismissal of the defendant that removed the case from state court under the Class Action Fairness Act (CAFA).
January 13, 2023
Washington Panel: Homeowner Waived His Right To Trial In Construction Contract

TACOMA, Wash. — A homeowner expressly waived his right to trial de novo in the arbitration provision of the contract he entered into with a homebuilder that allegedly constructed the home with defects, a Washington panel found in affirming a trial court’s decision to strike the homeowner’s motion for a trial de novo.
January 10, 2023
Wash. High Court Won’t Reconsider Construction Defects Statute Of Limitations Order

OLYMPIA, Wash. — The Washington Supreme Court denied a homebuilders’ motion for reconsideration of its Oct. 22 decision in which it held that a one-year statute of limitations within a warranty provision in a new home construction contract was unconscionable and unenforceable in light of Washington’s six-year statute of limitations for defect claims.
January 04, 2023
N.D. High Court Refuses To Expand Review Of Arbitration Awards In Construction Row

BISMARCK, N.D. — An arbitrator’s decision not to apply the substantial performance doctrine on the issue of damages was not completely irrational, the North Dakota Supreme Court held in affirming a trial court’s confirmation of an arbitration award in favor of a homeowner who sued a builder for failing to build his home on time.