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

Mealey's Construction Defects

November 28, 2022
In Stucco Row, Homeowner Files 7th Complaint And Judge Dismisses Counterclaim

MOBILE, Ala. — In separate orders, an Alabama federal judge dismissed a counterclaim for indemnity brought by the manager of a stucco inspector against a contractor and allowed a homeowner and the contractor to file their seventh amended complaint, finding good cause to permit new allegations of misrepresentation to be variously raised against manufacturers, distributors, inspectors and other professionals involved in the allegedly defective application of stucco products onto a new home because those allegations were based on information discovered in depositions taken after a deadline to amend the pleadings.
November 23, 2022
Calif. High Court Denies Homeowners’ Petition For Review Of Roofing Decision

SAN DIEGO — The California Supreme Court denied a petition for review filed by two homeowners who argued that an appellate court reached the wrong conclusion when it determined that a roof is not a “manufactured product” for the purposes of the state’s Right to Repair Act and found that a trial court did not err in finding that homeowners were required to provide evidence of water intrusion or falling materials to advance their defective roofing claims under the act.
November 23, 2022
Homeowners Tell 9th Circuit Judge Erred By Denying Certification In Defect Case

SAN FRANCISCO — A group of homeowners unsealed their opening brief to the Ninth Circuit U.S. Court of Appeals in which they argue that a federal judge’s refusal to certify a class accusing construction supply manufacturers of selling defective foundational anchors and ties in violation of California’s unfair competition law (UCL) was “peppered with legal and factual errors.”
November 22, 2022
Federal Judge Denies Motion To Dismiss In Defective Roof Repair Dispute

HUNTINGTON, W.Va. — In denying a roofer’s motion to dismiss a technology company’s fraud claims related to the roofer’s alleged defective repair work, a federal judge in West Virginia declined to consider the warranty document attached to the roofer’s motion to dismiss because it was not the same warranty referenced in the complaint and found that the “gist of the action” doctrine did not apply to bar the fraud claim because it was based on “expressions of intention” during negotiation of the contract.
November 22, 2022
Amended Settlement And Motion For Attorney Fees Filed In Shingle Dispute

PHILADELPHIA — A class of property owners whose roofs were affected by allegedly defective shingles moved for more than $1.6 million in attorney fees against the manufacturer of the shingles following a Pennsylvania federal judge’s preliminary approval of a modified settlement agreement that will establish a claims process for the property owners to be compensated.
November 22, 2022
American Makers Amend False Advertising Claims Against Brazilian Plywood Certifier

FORT LAUDERDALE, Fla. — A plywood certifying agency and its accreditor are exposing Florida residents to serious injury or death by certifying Brazilian plywood as meeting U.S. standards, a coalition of nine American plywood manufacturers claim in their first amended complaint filed in the same Florida federal court that previously issued a permanent injunction against another certifying agency.
November 22, 2022
Federal Judge: No Punitive Damages Under Texas Law For Chinese Drywall Claims

HOUSTON — In two nearly identical orders in separate cases severed from the same multidistrict litigation regarding allegedly defective Chinese-manufactured drywall, a Texas federal judge granted the drywall manufacturers’ motions for summary judgment on two sets of property owners’ punitive damages and unfair trade practices claims because the property owners failed to allege fraud, malice or gross negligence, as required for punitive damages under Texas law, and failed to identify a deceptive trade practice or act that occurred during their purchase of the properties.
November 18, 2022
Calif. Judge Determines Settlement Of Construction Claims Was Made In Good Faith

LOS ANGELES — A settlement agreement entered into by a housing developer, its two neighbors and various construction professionals that will resolve the neighbors’ separate cases in their entirety as well as various claims and defenses from other actions related to the allegedly negligent construction of an underground parking garage was made in good faith, a California judge determined.
November 17, 2022
Judge Issues Order Closing Case In ADA Violation Suit Against Housing Authority

NEW ORLEANS — After a $250,000 consent order was issued the previous month, a Louisiana federal judge on Nov. 16 issued an order closing a suit filed by the U.S. Department of Justice against the Housing Authority of New Orleans (HANO) and seven private developers alleging violations of the Fair Housing Act (FHA) and the Americans with Disabilities Act of 1990 (ADA) in building eight multiunit residential facilities.
November 15, 2022
Parties File Notice Of Settlement In Insurance Row Over Storm-Damaged Pole Barn

BISMARCK, N.D. — An insurer filed a notice in North Dakota federal court stating that it settled its breach of contract and breach of implied warranty of fitness claims and intends to file a stipulation of dismissal in the action it brought against a manufacturer of pole barns and the subcontractor hired to construct a pole barn, which was later destroyed in a storm.
November 15, 2022
Housing Developer Argues Review Of Right To Repair Decision Is Unnecessary

SAN DIEGO — The California Supreme Court should not review an appellate panel’s decision that a roof is not a “manufactured product” for the purposes of the state’s Right to Repair Act because there is no split of authority that needs to be resolved and the decision will not negatively affect the future of California construction defect litigation, a housing developer argues in answer to a petition filed by two homeowners.
November 04, 2022
Florida Federal Magistrate Grants Motion To Exclude In Chinese Drywall Case

MIAMI — Testimony from experts retained by homeowners in more than a dozen related cases against Chinese drywall manufacturers is irrelevant and unreliable under Daubert v. Merrell Dow Pharmaceuticals Inc., a Florida magistrate judge ruled, granting a motion to exclude.
November 03, 2022
Customer, Home Depot, Installer Agree To Dismiss Defective Flooring Claims

TAMPA, Fla. — Parties in a putative class action related to a homeowner’s purchase of allegedly defective flooring products and installation services agreed to dismiss with prejudice the remaining breach of contract claim against Home Depot U.S.A. Inc. and negligence claim against its installer following a federal judge in Florida’s dismissal of Florida Deceptive and Unfair Trade Practice Act (FDUTPA), negligence and warranty claims.
November 03, 2022
Federal Judge Dismisses Most Of Roofing Contractor's Claims, Orders 5th Complaint

FORT MYERS, Fla. — A roofing contractor saw all but one of its claims against a roofing manufacturer and its supplier dismissed by a federal judge in Florida, who found that the contractor failed to state a claims for failure to warn and fraudulent misrepresentations and held that roofing products used on two condominium properties became component parts of the roofs when they were applied, making any damage caused by their malfunction barred by the economic loss doctrine.
November 03, 2022
Florida Jury Awards $4.6 Million To Homeowners For Faulty Construction Claims

VERO BEACH, Fla. — A Florida jury awarded two homeowners $4.6 million on their construction defects claims and found that a builder violated the Florida Building Code when it defectively constructed a new home but said that the company’s principals did not fraudulently induce the homeowners to enter into the construction contract.
November 03, 2022
Pa. Panel Denies Homebuilders’ Petition For Reargument On Discovery Issues

HARRISBURG, Pa. — A Pennsylvania appellate panel denied homebuilders’ petition for reargument of its opinion upholding a trial court’s decision finding that their spreadsheets containing lists of customers who complained of water intrusion damages were not privileged or protected as attorney work product because the documents were factual in nature and prepared by the companies’ operations department, not their legal counsel.
November 01, 2022
Wash. High Court: Limit On Time To Sue For Construction Defects Is Unconscionable

OLYMPIA, Wash. — A one-year statute of limitations contained in a warranty provision in a new home construction contract is unconscionable and unenforceable given Washington’s statutory six-year statute of limitations for defect claims, a majority of the Washington Supreme Court found in voiding the contract provision.
November 01, 2022
Calif. Panel Affirms Custom Home Ruling Against Owner Who Failed To Provide Record

LOS ANGELES — A California trial court properly denied a homeowner’s motion for new trial and motion to tax costs because the homeowner failed to provide an adequate record on appeal after he sued the contractors, managers and subcontractors for the allegedly defective construction of his custom home, a California appellate panel ruled.
October 27, 2022
Magistrate: Homeowners Affected By Chinese Drywall Can Seek Punitive Damages

FORT MYERS, Fla. — Plaintiffs should be given the opportunity to prove that they are entitled to punitive damages and that a previous award of $6 million in punitive damages, which was not fully paid in a subsequent post-trial settlement, was not enough to punish or deter the manufacturers of defective Chinese drywall, a federal magistrate judge in Florida found in recommending the denial in part and granting in part of the manufacturer’s motion for summary judgment in a consolidation of 25 cases.
October 27, 2022
Connecticut Judge: Failure To Remedy Faulty Paving Not An Unfair Business Practice

NEW HAVEN, Conn. — After a contractor failed to grade and pave a parking lot in accordance with an engineering plan and did not remedy its work, a Connecticut judge held that absent a showing of an aggravating factor, a property owner’s claims of breach of contract and negligence are not enough to allege a violation of the state’s unfair trade practices law.
October 27, 2022
Homeowners Association Awarded Damages For Contractor’s Defective Work

HARTFORD, Conn. — A Connecticut judge found that a homeowners association was entitled to $94,061 in damages on its negligence and breach of contract claims for deficient and incomplete construction services performed on its common interest community.
October 26, 2022
Grenfell Tower Residents’ Petition For Rehearing Denied By 3rd Circuit

PHILADELPHIA — The Third Circuit U.S. Court of Appeals denied a petition for rehearing or rehearing en banc of a panel decision that affirmed the dismissal of a strict product liability case against the manufacturers of allegedly flammable panels that were used in London’s Grenfell Tower, which burned down in 2017, and removed a condition placed on the dismissal that could have allowed the case to return to the trial court, rejecting former tower residents’ arguments that the panel erred by failing to correct the lower court’s application of Pennsylvania product liability law, by removing the dismissal condition and by finding the standard of review used by the trial court permissible.
October 25, 2022
Chinese Drywall Claims Dismissed Because Home Was Purchased At Judicial Auction

MIAMI — A federal judge in Florida dismissed all of a homeowner’s Chinese drywall claims under the common-law doctrine of caveat emptor because the home was purchased at a judicial auction sale, which was a condition the judge imposed when partially granting the drywall manufacturer’s motion for summary judgment in a separate case that stemmed from the same multidistrict litigation.
October 24, 2022
Motion To Realign Parties Denied By Alabama Federal Judge In Stucco Dispute

MOBILE, Ala. — Joined by four other defendants, a stucco manufacturer saw its motion to realign a plaintiff general contractor as a defendant denied and its alternative motion to dismiss, joined by only two others, partially granted by a federal judge in Alabama, who held that a defendant does not get to decide who a plaintiff should sue in an action brought by a homeowner over defective stucco used on a newly built home.
October 24, 2022
Texas Panel: Homebuyers Can’t Afford Arbitration, Can’t Be Forced To Arbitrate

SAN ANTONIO — After considering the fee schedule of the American Arbitration Association (AAA) and the monthly budget of a homebuying couple, a Texas appellate panel found that a trial court did not abuse its discretion in denying a builder’s motion to compel arbitration because the costs of litigation would be cheaper in a case regarding the defective construction of a new home’s foundation.