In Hensel Phelps Constr. Co. v. Superior Court, 257 Cal. Rptr. 3d 746 (Cal. Ct. App. 2020), the Court of Appeals of California, Fourth Appellate District, addressed whether a party’s contractual definition of the phrase “substantial completion” controlled the trigger date for California’s construction-related statute of repose, Cal. Civ. Code § 941(a). The Fourth District held that the agreement between the condominium owner and developer for Smart Corner Condominiums and the general contractor, Hensel Phelps Construction Co. (Hensel Phelps) – which determined the date of “substantial completion” for the construction project – did not control when the statute of repose started to run. Continue reading
In City of Oroville v. Superior Court, 446 P.3d 304 (Cal. 2019), the Supreme Court of California considered whether the City of Oroville (City) was liable to a dental practice for inverse condemnation damages associated with a sewer backup. The court held that in order to establish inverse condemnation against a public entity, a property owner must show that an inherent risk in the public improvement was a substantial cause of the damage. Since the dental practice did not have a code-required backwater valve — which would have prevented or minimized this loss — the court found that the city was not liable because the sewage system was not a substantial cause of the loss. This case establishes that a claim for inverse condemnation requires a showing of a substantial causal connection between the public improvement and the property damage. It also suggests that comparative negligence can be a defense to inverse condemnation claims. Continue reading
In Western Heritage Ins. Co. v. Frances Todd, Inc. 2019 Cal. App. Lexis 299, the Court of Appeals of California, First Appellate District, addressed whether a commercial condominium association’s carrier could subrogate against the tenants (aka lessees) of one of its member unit owners. After examining the condominium association’s declarations, as well as the lease terms between the owner and the lessees, the court held that the association’s carrier could not subrogate against the lessees because they were implied co-insureds on the policy. To reach its decision, the court explained that an insurer steps into the shoes of its insured, not the party with whom it is in privity. Although the first-party property portion of the association’s insurance policy did not, as required by the association’s declarations, have the owner listed as an additional named insured, the court held that it would be inequitable to treat the association as the sole insured for purposes of determining Western Heritage’s right to bring a subrogation action. Continue reading
In Travelers Prop. Cas. Co. of Am. v. Engel Insulation, Inc., 29 Cal. App. 5th 830 (2018), the Third District Court of Appeals of California addressed whether a subrogating carrier can assert the rights of its corporate insured while the insured is suspended and thus barred from doing so itself. The court rejected the argument that Cal. Rev & Tax Code § 19719(b) (1998), which exempts subrogating carriers from the penalties for asserting the rights of a suspended corporation set forth in its own subsection (a), eliminated the prohibition against carriers bringing an action based on the subrogation rights of its suspended insured. Because Travelers’ claims were based solely on its derivative rights of subrogation and its corporate insured was suspended, the Court of Appeals affirmed the trial court’s ruling that Travelers had no right to bring its suit. The court’s holding reaffirms California case law that denies subrogating carriers any rights greater than those of their insureds. See Truck Ins. Exch. v. Superior Court, 60 Cal. App. 4th 342 (1997). Continue reading
In Kohler Co. v. Superior Court, 29 Cal. App. 5th 55 (2018), the Second District of the Court of Appeal of California considered whether the lower court properly allowed homeowners to bring class action claims under the Right to Repair Act (the Act) against a manufacturer of a plumbing fixture for alleged defects in the product. After an extensive analysis of the language of the Act, the court found that class action claims under the Act are not allowed if the product was completely manufactured offsite. Since the subject fixture was completely manufactured offsite, the Court of Appeal reversed the lower court’s decision. The court’s holding establishes that rights and remedies set forth in the Right to Repair Act are not available for class action claims alleging defects in products completely manufactured offsite. Continue reading
In Kim v. Toyota Motor Corp., 6 Cal.5th 21 (Cal. 2018), the Supreme Court of California considered whether the trial court properly allowed the defendant to introduce evidence of industry custom and practice in defense of a strict product liability design defect case. The Supreme Court held that the evidence was relevant and admissible because it was introduced to address the feasibility and cost of alternative product designs, and not to show that the defendant acted reasonably. The court’s holding establishes that, while evidence of industry custom and practice is not admissible to prove or disprove fault in strict liability cases, it is admissible for other purposes, such as analyzing whether a product was defectively designed under the risk-benefit test. Continue reading
In McMillin Albany LLC v. Superior Court, 2018 Cal. LEXIS 211 (Jan. 18, 2018), the Supreme Court of California addressed the question of whether California’s Right to Repair Act (Act), Civ. Code §§ 895-945.5, applies to claims where the plaintiff alleges that construction defects caused property damage. The court held that the Act – which applies to original construction intended to be sold as an individual dwelling unit – supplanted common law negligence and strict liability actions with a statutory claim under the Act. Thus, where the Act applies, the Act provides the exclusive remedy for plaintiffs seeking to recover for property damages arising from construction defects. Continue reading
The California legislature recently enacted legislation – SB 496 – limiting a design professional’s indemnification obligations in private contracts related to design services. The term “design professional” refers to licensed architects, landscape architects and professional land surveyors, and registered professional engineers. As revised, Cal. Civ. Code § 2782.8 states that, for all contracts entered into on or after January 1, 2018 for design professional services, all provisions that purport to have the design professional indemnify the indemnitee for claims against the indemnitee – or require the design professional to provide a defense to the indemnitee – are unenforceable except to the extent that the claims against the indemnitee arise out of, or relate to, the negligence, recklessness or willful misconduct of the design professional. In addition, as revised, § 2782.8 limits a design professional’s liability for the cost of defense to the design professional’s percentage of fault.
The revised statute provides two exceptions. Pursuant to these exceptions, the limitations related to the duty and cost to defend do not apply to: 1) design service contracts where a project-specific general liability policy insures all project participants, including the design professional, and 2) a design professional who is a party to a written design-build, joint venture agreement.
Although this change in the law does not go into effect until January 1, 2018, the change serves as a reminder to subrogation professionals that, when faced with indemnification provisions in design or construction-related contracts, they should check local laws to determine the extent to which subrogating insurers can enforce such provisions.
In Belasco v. Wells, 183 Cal. Rptr.3d 840, 234 Cal. App. 4th 409 (2015), the California Court of Appeals for the Second District addressed the question of whether a homeowner, when settling an administrative complaint against a licensed homebuilder, can release future, unknown claims. Despite the presence of a California statute, Cal. Civ. Code § 1542, stating that a general release does not extend to claims that the releasor does not know about, the court held that the homeowner’s express release of future claims was enforceable. Thus, the homeowner’s release – signed as part of a 2006 settlement of the homeowner’s construction defect claims against the defendant, a homebuilder – barred the homeowner’s 2012 claims against the builder based on latent defects in the roof of the home that the homeowner discovered in 2011.
In KB Home Greater Los Angeles, Inc. v. Superior Court (Allstate Ins. Co.), 168 Cal. Rptr. 3d 142 (Cal. Ct. App. 2014), the California Court of Appeal addressed the question of whether a subrogating insurer’s failure to comply with the pre-litigation procedures of the California Right to Repair Act (Cal. Civ. Code § 895 et seq.) (the Act) – which require that a homeowner give a builder notice and an opportunity to repair alleged defects – barred the insurer’s claim under the Act. The Court of Appeal held that the insurer’s failure to comply with the pre-litigation procedures of the Act prior to repairing the insured’s home barred the insurer’s cause of action under the statute.
In KB Home, Dipak Roy (Roy), the insured, bought a home from builder KB Home in 2004. Roy’s purchase agreement with KB Home contained a right to repair addendum that advised Roy of the pre-litigation procedures of the Act and directed that notices of defect claims be sent to KB Home’s corporate address in Los Angeles. The limited warranty section of the agreement provided for telephone notice in cases of emergency, followed by a promptly submitted written warranty claim.
In March 2010, Roy’s property manager discovered a water leak in the home, which was vacant at the time. The property manager shut off the water service to the home and called Roy, who, in turn, called his insurer, Allstate Insurance Company (Allstate). Allstate hired a mitigation company to remove excess water, damaged dry wall, and carpet. Allstate inspected the home in April 2010 and completed repairs in June 2010. In July 2010, Allstate sent KB Home a notice of its intent to pursue subrogation claims arising from the water leak. Allstate sent the notice to an address in Irvine, not to KB Home’s corporate address in Los Angeles. In November 2010, however, Allstate’s counsel sent a settlement demand to KB Home’s Los Angeles address. KB Home did not respond to Allstate’s demand.
In March 2011, Allstate filed a subrogation complaint against KB Home. In March 2012, Allstate filed a second amended complaint that alleged causes of action for negligence, strict liability, breach of implied warranty, and violation of the Act. KB Home demurred and the trial court overruled the demurrer, reasoning that the Act did not apply to subrogation claims. On KB Home’s petition, the Court of Appeal issued an alternative writ, directing the trial court to sustain the demurrer as to the negligence and strict liability claims, and to overrule the cause of action under the Act.
After the matter was sent back to the trial court, KB Home filed a motion for summary judgment against Allstate, arguing that it was not given timely notice and an opportunity to repair the defect. Allstate filed a cross-motion for summary judgment, arguing, among other things, that the Act did not require that notice be given to builders before repairs are made and that Allstate complied with the statute’s notice requirements. The trial court denied KB Home’s motion for summary judgment, finding that Allstate’s July and November 2010 letters to KB Home substantially complied with the notice requirements of the Act, and that KB Home forfeited its right to repair when it failed to respond to those letters. In addition, the trial court granted Allstate’s motion for summary judgment, finding that KB Home violated the building standards of the Act. Upon KB Home’s petition, the Court of Appeal issued an alternative writ of mandate, directing the trial court to grant KB Home’s motion for summary judgment and to deny Allstate’s cross-motion for summary judgment. Instead, the trial court upheld the rulings and returned the matter to the appellate court.
Upon return, the Court of Appeal addressed the issue of whether the Act – which applies to the original construction of individual homes sold after January 1, 2003 – requires that notice be given to a builder before repairs are made to a home. Pursuant to Chapter 4 of the Act, a homeowner is required to provide written notice to the original builder of a violation of any of the building standards identified in the statute. Although Allstate argued that the Act does not expressly require that builders be given notice of a defect before repairs are made, the Court of Appeal rejected Allstate’s argument because the pre-litigation procedures in the Act are sequential, and designed to give a builder the opportunity to resolve a homeowner’s construction defect claim “in an expeditious and nonadversarial manner.” As such, completing repairs before providing notice defeats the purpose of the pre-litigation procedures by prohibiting a builder from inspecting the alleged defect and making an offer to repair. The Court of Appeal also found that Allstate’s notice to KB Home did not substantially comply with the Act’s requirements because Allstate gave notice to KB Home months after the defect was repaired. Specifically, the appellate court observed that the notice letter merely asserted Allstate’s subrogation rights, made no reference to the Act, and identified a defect that no longer existed at the time. Because the Act required that Roy, the insured, give KB Home timely notice of the alleged construction defect and KB Home did not receive such notice, Allstate’s subrogation claim under the Act failed.
In analyzing Allstate’s claim, the Court of Appeal also addressed Allstate’s argument that the Act’s notice requirements are not practical when a construction defect causes actual damage, requiring emergency repairs. The appellate court, in dicta, rejected this argument, stating that the Act does not prevent homeowners from seeking immediate redress. Rather, under the Act, a homeowner can comply with the pre-litigation procedures by contacting the builder immediately, through any applicable normal customer service procedures and, then, providing the statutorily required written notice. As stated by the Court of Appeal, because the Act requires the builder to compensate the homeowner for consequential damages, including the cost of repairing actual property damage, the builder has an incentive to act quickly in cases of emergency.
The analysis in KB Home highlights the fact that, when a home is subject to the requirements of the Act, subrogating insurers should comply with the written notice requirements of the Act. In cases of emergency, insurers should contact the builder through its normal customer service procedures and send written notice as required by the Act. Absent compliance with the Act’s notice and opportunity to repair requirements, an insurer’s subrogation claim may be barred.
For more information regarding this alert, please contact Ed Jaeger (215.864.6322 / firstname.lastname@example.org).