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

Mealey's Construction Defects

February 17, 2023
In Stucco Dispute, Texas Panel Says Homeowners Can’t Be Compelled To Arbitrate

AUSTIN, Texas — Subsequent homeowners who did not sign an arbitration agreement cannot be compelled to arbitrate by the homebuilder because their defective stucco claims do not arise from the contract signed between the original homeowners and the builder, and direct benefits estoppel does not apply, a Texas panel held in affirming a trial court’s denial of the homebuilder’s motion to compel arbitration.
February 16, 2023
Tenn. Federal Judge: Homeowner No Longer Pursuing Claims For Electrical Work

NASHVILLE, Tenn. — An electrical company that performed electrical work on a defectively constructed pool is entitled to summary judgment on third-party claims for indemnity because the applicable statute of repose bars the claims and the original plaintiff-homeowner is no longer seeking damages based on the allegedly faulty electrical work, a Tennessee federal judge held in granting the electrical company’s motion for summary judgment.
February 16, 2023
Wyoming Supreme Court: Terms Of Construction Contract Are ‘Ambiguous’

CHEYENNE, Wyo. — The provisions of a contract for the construction of an assisted living facility that suffered damage from water saturation in the soil near the building are “ambiguous” and capable of more than one meaning, the Wyoming Supreme Court found in reversing and remanding a trial court’s grant of summary judgment on a breach of contract claim brought by the operator of the facility against the general contractor who performed its construction.
February 15, 2023
In Chinese Drywall MDL, Federal Judge Refuses To Allow New Expert Disclosures

NEW ORLEANS — Two property owners whose buildings were allegedly affected by defectively manufactured Chinese drywall failed to show that good cause exists to file new expert disclosures nearly three years after the deadline to do so had passed, a Louisiana federal judge found in denying the property owners’ motion to file the disclosures in a multidistrict litigation.
February 14, 2023
Fla. Federal Judge Grants Summary Judgment In 15 Chinese Drywall Cases

TAMPA, Fla. — In 15 of 25 cases brought by homeowners who were allegedly affected by defective Chinese-manufactured drywall, a Florida federal judge adopted the reports of a magistrate judge who recommended granting summary judgment in favor of a drywall manufacturer on the issues of the statute of limitations and damages and denying summary judgment on the issue of the subsequent purchaser doctrine.
February 08, 2023
Delaware Judge Reduces $12.9M Jury Verdict For Negligent Construction Claims

GEORGETOWN, Del. — A jury’s verdict for $12.9 million in favor of a condominium association and condominium owners for damages caused by a builder’s negligent construction of parts of the condominium units was excessive and influenced by improper testimony regarding inflation and additional costs caused by the COVID-19 pandemic, a Delaware judge found in reducing the award to $8.3 million.
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.