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

Mealey's Construction Defects

June 30, 2023
Faulty Restaurant Construction Row Remanded To State Court By Miss. Federal Judge

ABERDEEN, Miss. — Under the rule of unanimity, a Mississippi federal judge remanded to state court an action brought by a developer against a general contractor and architect who are alleged to have defectively constructed a Burger King restaurant because the architect failed to join or consent to the contractor’s removal.
June 29, 2023
Engineering Firm Fails To Refute Malpractice Claim In Roof Construction Dispute

BROOKLYN, N.Y. — An engineering firm failed to refute the factual allegations asserted by the owners of a residential building because the documentary evidence the firm presented failed to include a drawing referenced by the document, a New York justice found in denying the firm’s motion to dismiss the owners’ professional malpractice claim in which they allege that the firm failed to include all necessary information in a feasibility report for the building’s proposed roof terrace.
June 28, 2023
W.Va. Federal Judge: Arbitrator Will Decide Whether To Hear Construction Claims

HUNTINGTON, W.Va. — An arbitrator must decide whether the mediation requirement of a dispute resolution agreement signed between a homebuilder and a homeowner was met because it is a threshold issue to the construction defects dispute, a West Virginia federal judge found in granting the homebuilder’s request to compel arbitration against the homeowner, who says the modular home she purchased contains defects and negligent work.
June 26, 2023
Conn. Judge Awards $30,000 To Property Owner For ‘Egregious’ Roofing Replacement

WATERBURY, Conn. — The work of a contractor who replaced the roofs of buildings at two separate properties contained “defects that are so egregious that they are readily apparent to any reasonable person,” a Connecticut judge found in awarding $30,000 to the owner of the properties on its breach of contract claim.
June 26, 2023
In Failed Retaining Wall Dispute, Federal Judge Denies Untimely Motion To Dismiss

BALTIMORE — An environmental consulting company that analyzed a property where a retaining wall was built and failed filed its motion to dismiss counterclaims brought against it by the property owner 451 days after the deadline for dispositive motions, a Maryland federal judge found in denying the motion as untimely.
June 23, 2023
Texas Panel: Subsequent Homebuyers Can Be Compelled To Arbitrate

AUSTIN, Texas — Two subsequent homeowners who purchased a home from the original owners who signed an arbitration agreement in the purchase agreement with the homebuilder can be compelled to arbitrate under the theory of direct benefits estoppel because their breach of implied warranty claims against the builder requires reference to the original contract, a Texas appellate court panel held June 23 in reversing a trial court’s order denying the homebuilder’s motion to compel arbitration.
June 21, 2023
Wyoming Judge: Chancery Court Has No Jurisdiction Over Construction Defects Case

CHEYENNE, Wyo. — The Wyoming Chancery Court has limited jurisdiction and is not authorized to hear consumer claims against business entities, a judge in that court found in granting a motion to dismiss for lack of subject matter jurisdiction filed by a group of defendants who were sued by two homeowners for the allegedly defective construction of their new home.
June 20, 2023
Texas Panel: Builder Failed To Correct Defects That Caused New Home To Flood

DALLAS — A homebuilder failed to present evidence that its repairs on a new home that flooded during heavy rainfall complied with the recommendations of an engineering firm that inspected the home, a Texas appellate court panel found in affirming a trial court’s finding that the homebuilder breached a settlement it made with the homeowner after the home flooded.
June 16, 2023
Federal Magistrate Judge: Other Homeowners Can Join Defective Construction Case

MUSKOGEE, Okla. — Three homeowners who purchased allegedly defective homes from the same builder can be added as plaintiffs under a theory of permissive joinder to an action brought by a homeowning couple who allege that their newly constructed home suffered from water intrusion and other defects, an Oklahoma federal magistrate judge opined in recommending the couple’s motion for leave to file a second amended complaint.
June 15, 2023
Indemnification May Be Available To Engineer For Defects At Treatment Plant

CHARLESTON, W.Va. — In affirming and denying several orders by a trial court, the West Virginia Supreme Court of Appeals found that an engineering firm provided enough evidence to support its third-party claims of indemnification against a motion to dismiss and motion for summary judgment by showing that the alleged construction defects at a new wastewater treatment plant might have been caused by three companies that performed the construction and not the engineer’s alleged design defects.
June 14, 2023
Parties In Defective Wall Construction Dispute Stipulate To Dismissal Of Claims

HAMMOND, Ind. — A general contractor and several subcontractors that worked on two buildings that allegedly suffered from a defectively constructed exterior wall filed a stipulation of dismissal of all claims with prejudice between themselves and the building’s owner in Indiana federal court.
June 14, 2023
Fla. Federal Judge Changes Course, Dismisses Bridge Design Claim Without Prejudice

MIAMI — In partly granting a joint venture’s motion for reconsideration, a Florida federal judge dismissed without prejudice a negligence claim brought against an engineer for the allegedly defective design of an $800 million bridge in downtown Miami after previously dismissing the claim with prejudice.
June 13, 2023
Sponsor Of ‘Billionaire’s Row’ Skyscraper Cannot Seek Indemnification For Defects

NEW YORK — The sponsor of one of the world’s tallest luxury condominium buildings cannot seek indemnification from engineers who worked on the building, which allegedly suffers from numerous construction defects, because the homeowner’s association that sued the sponsor for failing to properly supervise the construction did not allege that the sponsor was vicariously liable for the actions of any other parties, a New York justice held in partly granting the engineers’ motion to dismiss.
June 13, 2023
Proposed Inspection Deadlines Required In Condo Disability Discrimination Suit

BROOKLYN, N.Y. — A New York federal magistrate judge on June 12 issued a docket-only minute entry advising parties to submit a joint status report regarding proposed deadlines for property inspections in a suit filed against condominium owners and their designer by a nonprofit alleging failure to design and construct housing accessible for disabled persons in violation of the Fair Housing Act (FHA) and several New York laws.
June 09, 2023
New York Justice Dismisses Fraud Claims Brought Against Condominium Developer

NEW YORK — A fraud claim brought against a building developer that is alleged to have made misrepresentations about a condominium building that it deficiently developed fails because the claim was duplicative of a breach of contract claim and otherwise preempted by state law, a New York justice found in partly granting the developer’s motion to dismiss.
June 09, 2023
Ohio Panel: Trial Court Properly Considered Record In Ruling On HVAC Claims

CLEVELAND — In affirming a trial court’s decision to grant summary judgment in favor of a contractor that was sued by the owner of a building for allegedly designing and installing a defective HVAC system, an Ohio appellate panel on June 8 said that it would not assume that the trial court failed to consider the evidentiary record when ruling on the motion because the trial court explained its reasoning for granting the motion when it denied the owner’s later motion to vacate the ruling.
June 08, 2023
In Chinese Drywall Case, Federal Judge Tosses Claims, Orders Further Pleading

FORT LAUDERDALE, Fla. — In addition to dismissing claims for negligent discharge of a corrosive substance and private nuisance, a Florida federal judge ordered a group of homeowners who were affected by defectively manufactured Chinese drywall to amend their discussion of the discovery rule because they failed to explain how the accrual date for their claims was tolled by the rule in relation to the statute of limitations/repose in their first amended complaint.
June 07, 2023
Ala. Federal Judge Grants Summary Judgment In Treatment Plant Construction Dispute

BIRMINGHAM — The manufacturer and the installer of fiberglass parts that were used in a wastewater treatment plant and later failed are entitled to summary judgment on claims brought against them by the municipal agency that runs the plant except for a negligence claim against the manufacturer because the agency failed to present evidence on some claims while the statute of limitations barred others, an Alabama federal judge held June 5 in partly granting the manufacturer’s and completely granting the installer’s motions for summary judgment.
June 05, 2023
High Court Won’t Decide If Arbitration Clauses In Building Contracts Are Proper

WASHINGTON, D.C. — The U.S. Supreme Court on June 5 denied a petition for a writ of certiorari filed by a homebuilder that argued that the South Carolina Supreme Court erred in applying an anti-arbitration presumption when interpreting the enforceability of an arbitration provision present in multiple contracts for the sale of new homes that the owners alleged to be defectively constructed.
June 05, 2023
In Industrial Construction Dispute, Tenn. Federal Judge Denies Motion To Dismiss

JACKSON, Tenn. — The economic loss doctrine does not bar negligence claims brought by the owner of an industrial building against a subcontractor that performed allegedly defective construction work on the building because the doctrine does not extend beyond products liability cases and there was privity between the parties, a Tennessee federal judge held in denying the subcontractor’s motion to dismiss.
June 02, 2023
In Landslide Case, Pennsylvania Federal Judge Won’t Dismiss Claims Under Prior Order

PITTSBURGH — A motion to amend filed by a property developer and one of its partners that were sued after a landslide damaged three newly constructed homes is effectively an untimely motion for an extension of time, a Pennsylvania federal judge found in denying the motion in which the defendants sought dismissal of claims based on the judge’s previous ruling on the statute of repose and the law of the case doctrine.
May 31, 2023
In Stucco Dispute, N.Y. Justice Denies Motion For Default Despite Late Response

NEW YORK — The owner of a 38-story Marriott Hotel in New York City is not entitled to default judgment against a subcontractor that worked on the building’s allegedly defective stucco façade and filed its answer to the owner’s complaint several months late because public policy favors deciding the case on the merits, a New York justice held (LAM Group, et al. v. Anthony T. Rinaldi LLC d/b/a/ The Rinaldi Group, et al., No. 650465/2022, N.Y. Sup., New York Co.).
May 31, 2023
Liability Limitation In Construction Contract Is Invalid, Colorado Panel Finds

DENVER — An engineering firm that defectively designed an electrical system for dozens of air conditioning units within a senior living community is not entitled to limitation of its liability because Colorado’s Homeowner Protection Act (HPA) does not permit parties to limit their liability in contracts for the construction of residential properties, a Colorado panel found in reversing a trial court’s judgment.
May 25, 2023
Penthouse Owner May Owe Duty To Fellow Resident Who Says Renovation Caused Damages

NEW YORK — Genuine issues of material fact exist as to whether a penthouse owner owed a duty to a fellow resident-shareholder whose apartment unit, located one floor below the penthouse, was allegedly damaged by renovations to the penthouse, a New York justice held in granting and denying summary judgment to multiple parties to the action.
May 24, 2023
Fla. Federal Judge Further Extends Stay For Negotiations In Brazilian Plywood Case

FORT LAUDERDALE, Fla. — A Florida federal judge granted an unopposed motion for an extension of an administrative stay filed by a coalition of American plywood manufacturers that sought more time to negotiate the settlement of claims it brought against a plywood certifying agency for allegedly certifying substandard Brazilian structural plywood as meeting U.S. standards.