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

Mealey's Construction Defects

September 29, 2022
Misrepresentation Claims Against Stucco Sales Agent Survive Dismissal Motion

MOBILE, Ala. — A homeowner and general contractor may proceed with claims for negligent and fraudulent misrepresentation and suppression and the warranty-by-estoppel aspect of a breach of warranty claim against a stucco sales agent who was added as a defendant in a sixth amended complaint alleging problems with the exterior of an Alabama home, a federal judge in Alabama ruled, partially granting and partially denying the agent’s motion to dismiss.
September 29, 2022
Negligence, Strict Liability Claims Largely To Proceed In Chinese Drywall Cases

MIAMI — A federal judge in Florida ruled that most of the claims for negligence and strict liability in more than a dozen related cases by homeowners against Chinese drywall manufacturers may proceed after partially granting a motion for summary judgment by the manufacturers on several other claims, finding that some of those claims are barred because the plaintiffs are subsequent purchasers.
September 27, 2022
Del. Judge Rules On Summary Judgment, Testimony Exclusion In HVAC Defect Dispute

WILMINGTON, Del. — A Delaware judge granted in part motions for summary judgment filed by contractors, an architect and an insurer in a defective design and negligence dispute over improvements to senior living homes’ HVAC systems, finding that summary judgment is unopposed for the insurer whose performance bond obligation “has not arisen” but the current record lacks facts as to the nexus between the alleged negligence of the architect and contractors’ conduct and the purportedly defective HVAC system.
September 22, 2022
Arbitration Clause Added To Roof Shingles Deemed Enforceable In Class Suit

KANSAS CITY, Kan. — An arbitration clause added to the packaging of roof shingles in December 2004 is enforceable, and an Illinois condominium property that purchased those shingles and had them installed on units constructed in 2006 and 2007 is bound by that clause, a federal judge in Kansas ruled, granting an arbitration motion by the defendant in a putative class complaint alleging defective shingle by the Illinois property and three homeowners in Connecticut and Ohio.
September 21, 2022
Judge Dismisses Urban Outfitters’ Fraud Claims Against Roofing Manufacturer

RENO, Nev. — Urban Outfitters Inc.’s fraud and conspiracy claims against the manufacturer of a roof on a Nevada distribution center were dismissed by a federal judge in that state who found that the retailer failed to plead its claims with particularity; however, the judge granted the plaintiff leave to amend even though no such request was filed.
September 21, 2022
Md. Federal Judge Grants 3 Motions, Dismisses Rotting Deck Claims With Prejudice

BALTIMORE — A federal judge in Maryland granted three motions to dismiss in a case where a homeowning couple sued several lumber manufacturers, one of which was dismissed for lack of personal jurisdiction, and a chemical supplier after the couple discovered that their deck was rotting and decaying, finding that the couple’s negligence and strict product liability claims were barred by the economic loss doctrine, that they failed to plead their unfair or deceptive trade practices claim with particularity and that they failed to state a claim for breach of warranty.
September 21, 2022
Attorney Fees Agreed On, Costs Approved Following Champlain Collapse Settlement

MIAMI — Class counsel’s motion for reimbursement of costs following the more than $1 billion class settlement in the consolidated case over the June 2021 partial collapse of the Champlain Towers South (CTS) condominium building in Surfside, Fla., was granted by a Florida judge on Sept. 16, two days after the receiver filed a notice that class counsel resolved how to allocate the $65 million in attorney fees awarded in August.
September 14, 2022
Judge Grants Judgment For Subcontractor, Says $1M Pool Defect Suit Is Time-Barred

NASHVILLE, Tenn. — A Tennessee federal judge on Sept. 13 granted summary judgment to a subcontractor in a suit filed against contractors and subcontractors alleging negligence, breach of contract and breaches of express and implied warranty over the alleged defective construction of a $1 million pool, finding that because the suit was filed outside of Tennessee’s four-year statute of repose period, the claims against the subcontractor are time-barred.
September 14, 2022
1st Circuit Finds $5.5M Award For Defects In London Dorm Properly Confirmed

BOSTON — A First Circuit U.S. Court of Appeals panel on Sept. 13 affirmed the confirmation of a nearly $5.5 million award against a seller and its contractor for construction defects found in a London dormitory after its sale for more than $58 million to a university, finding the award timely confirmed although it was issued more than three years prior because the arbitration was not completed until years later.
September 14, 2022
Homeowner And Builder: Testimony Reveals Stucco Seller Misrepresented His Position

MOBILE, Ala. — In a response to a motion to dismiss a complaint in a federal court in Alabama alleging problems with the exterior of a home in that state, a homeowner and builder on Sept. 1 argue that recent testimony has revealed that a stucco salesman fraudulently misrepresented his relationship with a stucco manufacturer and that they intend to amend their complaint for a seventh time to incorporate this new evidence.
September 14, 2022
Homeowner: Arbitration Agreement Attached To Deed Doesn’t Run With The Land

AUSTIN, Texas — A homeowner argues in her Aug. 31 respondent’s brief on the merits filed in the Texas Supreme Court that she should not be compelled to arbitrate because she never signed an arbitration agreement and the agreement signed by the previous owner and the builder and attached to the home’s deed does not bind her to arbitrate because it was a personal covenant that did not touch and concern the land.
September 01, 2022
Florida Judge Issues Orders On Receiver, Attorney Fees In Champlain Collapse Suit

MIAMI — In multiple orders issued Aug. 30 and Aug. 31, the Florida judge overseeing the more than $1 billion class settlement in the consolidated case over the June 2021 partial collapse of the Champlain Towers South (CTS) condominium building in Surfside, Fla., awarded class counsel $65 million in attorney fees and the receiver more than $5.6 million in fees and expenses and ordered class counsel to meet with the receiver regarding the proper division of fees.
August 31, 2022
Grenfell Tower Residents Petition For Rehearing In Flammable Panels Case

PHILADELPHIA — Former residents of London’s Grenfell Tower, which caught fire in 2017, on July 22 filed a petition for rehearing or rehearing en banc in the Third Circuit U.S. Court of Appeals arguing that the panel erred in affirming, on grounds of forum non conveniens, the dismissal of their strict products liability case against manufacturers of the allegedly flammable panels used on the tower and in removing a condition placed on the dismissal that could have allowed the case to return to the trial court.
August 31, 2022
Texas Panel: Testimony Shows Contractor’s Work Was Defective And Funds Missing

TYLER, Texas — A Texas appellate panel on Aug. 24, relying upon witness testimony, affirmed a trial court’s finding that the evidence indicated that a contractor breached his contract and the implied warranty of construction in a good and workmanlike manner by defectively constructing several features of a new home for a property owner and withdrawing more funds than he could document spending on the project.
August 31, 2022
Condo Association, Roofing Manufacturer Stipulate To Dismissal After Settlement

CHARLESTON, S.C. — One month after a federal judge in South Carolina ordered the dismissal of a case in which a condominium association claimed that a roofing manufacturer’s roof system was defective and unfit for hurricane weather, the two parties on July 26 filed a stipulation of dismissal after settling the association’s remaining claims of gross negligence and breach of express warranty.
August 31, 2022
Preliminary Approval Sought For $20.5M Settlement In Post-Katrina Housing Case

NEW ORLEANS — All parties in a putative class action brought by residents of New Orleans who purchased their homes from actor Brad Pitt’s nonprofit organization and who alleged that the houses contained numerous construction defects sought preliminary approval of a $20.5 million settlement on Aug. 16 in a Louisiana state court.
August 31, 2022
Subcontractor Says Developer Cannot Compel Arbitration Without Raising Cross-Claims

SARASOTA, Fla. — After being named in a request for joinder in an arbitration proceeding, a subcontractor on Aug. 1 asked a Florida court to determine whether an arbitration agreement exists between it and a condominium developer, both of which have been sued by the condominium association, arguing that the clause is not valid under Florida law and the developer waived its right to compel arbitration when it failed to raise cross-claims after two years of litigation.
August 30, 2022
Class Counsel In Champlain Towers Collapse Suit Awarded More Than $65M In Attorney Fees

MIAMI — Class counsel for the plaintiffs in the consolidated case in a Florida court over the June 2021 partial collapse of the Champlain Towers South (CTS) condominium building in Surfside, Fla., that has been settled for more than $1 billion were awarded more than $65 million in attorney fees in a hearing on Aug. 29.
August 29, 2022
Texas Panel: Home’s Hurricane Damage Not Linked To Engineer’s Contractual Duties

HOUSTON — An engineer had no duty to ensure that a home was built to meet floodplain elevation regulations but possibly had a duty related to personal property in the home, despite failing to inspect construction after a foundation was laid in a home that was subsequently damaged by Hurricane Harvey, a Texas appellate panel found Aug. 23 in affirming one, and reversing another, of a trial court’s grants of summary judgment on a homeowning couples’ negligence and gross negligence claims.
August 26, 2022
Builder Appeals Order Denying Arbitration Of Construction Claims To 4th Circuit

RICHMOND, Va. — A custom homebuilder and its general contractor on Aug. 16 appealed to the Fourth Circuit U.S. Court of Appeals an order by a federal judge in North Carolina denying their motion to dismiss a homeowning couple’s construction defects counterclaims and to compel arbitration after finding that the builder waived its right to compel arbitration by using the court’s “litigation machinery” when it sued and sought an injunction against the couple for operating a website condemning the company’s practices.
August 26, 2022
Fla. Judge Disallows ‘Presumptively Fraudulent’ Claims For Champlain Settlement

MIAMI — A Florida judge overseeing the more than $1 billion settlement reached in the consolidated case over the June 2021 partial collapse of the Champlain Towers South (CTS) condominium building in Surfside, Fla., issued an order on Aug. 25 granting a motion by the receiver and disallowing more than half of the claims filed as “presumptively fraudulent” after none of the more than 400 individuals who submitted the filings appeared at an Aug. 24 hearing to defend their claims.
August 24, 2022
4th Circuit: Home Defects Details Don’t Trigger Arbitration Of Mortgage Claims

RICHMOND, Va. — Mobile homeowners’ inclusion of details related to already settled construction defects claims in an amended complaint against the seller, lender and home insurance provider arising out of the mortgage loan for their home does not trigger the arbitration agreement the homeowners signed at the time of purchase as the information was necessary to add context to those claims, a Fourth Circuit U.S. Court of Appeals panel ruled Aug. 19, affirming a trial court’s denial of a motion to stay and compel arbitration.
August 24, 2022
Tennessee Homeowners Ordered To Stop Filing Motions In Decided Construction Dispute

NASHVILLE, Tenn. — A Tennessee state appellate panel on July 6 ordered a homeowning couple to stop filing motions and documents in regard to their previously decided construction defects claims after construing the couple’s two “emergency” motions as motions for rehearing and denying them as untimely.
August 23, 2022
Vermont Judge Denies Motion For Rehearing In Defective Barn Renovation Case

MONTPELIER, Vt. — A Vermont judge on Aug. 1 denied a contractor’s motion for rehearing after awarding a homeowner $44,232.95 in damages and prejudgment interest based on the contractor’s breach of contract and implied warranty.
August 23, 2022
California Panel: Roof Is Not A ‘Manufactured Product’ Under Right To Repair Act

SAN DIEGO — A California appellate panel on Aug. 17 held that a roof is not a “manufactured product” for the purposes of the state’s Right to Repair Act and 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.