Category Archives: Construction Defects

Time

Tennessee Looks to Define Improvements to Real Property


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For subrogation practitioners dealing with an installation-based statute of repose, knowing what is an improvement to real property is the first battle in what can, but does not have to be, a long fight. Like many other states, Tennessee’s statute of repose bars claims based on improvements to real property. Tennessee’s statute of repose runs four years after substantial completion of the improvement. See Tennessee Code Ann. § 28-3-202. In the case of Maddox v. Olshan Found. Repair & Waterproofing Co. of Nashville, L.P., E A, 2019 Tenn.App. LEXIS 464, 2019 WL 4464816, the Court of Appeals of Tennessee examined whether or not the work done by the defendant, Olshan Foundation Repair & Waterproofing Co. of Nashville, L.P., E.A. (Olshan) — which addressed bowing walls, cracks in the foundation and walls and water intrusion — qualified as improvements to real property for the purposes of the statute of repose. The court held that the work by Olshan essentially amounted to repairs, and did not qualify as improvements to real property. Continue reading

This entry was posted in Construction Defects, Statute of Limitations-Repose, Tennessee and tagged , , .
Signing Agreement

“Wait! Do You Have All Your Ducks in a Row?” Filing of a Certificate of Merit in Conjunction With a Complaint


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In Barrett v. Berry Contr. L.P., No. 13-18-00498-CV, 2019 Tex. LEXIS 8811, the Thirteenth District Court of Appeals of Texas considered, among other things, the procedural timing requirements of filing a certificate of merit in conjunction with a complaint. The court concluded that the proper reading of the statute requires a plaintiff to file a certificate of merit with the first complaint naming the defendant as a party. Continue reading

This entry was posted in Construction Defects, Statute of Limitations-Repose, Texas and tagged , , , .
Gavel

“Slow and Steady Doesn’t Always Win the Race” – Applicability of a Statute of Repose on Indemnity/Contribution Claims in New Hampshire


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In Rankin v. South Street Downtown Holdings, Inc., 2019 N.H. LEXIS 165, the Supreme Court of New Hampshire considered, pursuant to a question transferred by the trial court, whether RSA 508:4-b, the statute of repose for improvements to real property, applies to indemnity and contribution claims. The court concluded that based upon the plain reading of the statute, it applies to indemnity and contribution claims. As noted by the court, a holding to the contrary would violate the intent of a statute of repose, which is to establish a time limit for when a party is exposed to liability. Continue reading

This entry was posted in Construction Defects, Contribution, Indemnification, New Hampshire, Statute of Limitations-Repose and tagged , , , , , .
Construction Defect

In Connecticut, Contractors and Subcontractors are Presumptively in Privity for Res Judicata Purposes


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While pursuing contractors and subcontractors separately can oftentimes be a strategic move in subrogation cases involving construction defects, attorneys must be aware that proceeding in a piecemeal fashion may result in claim preclusion in the later cases. In the case of Girolametti v. Michael Horton Assocs., 2019 Conn. LEXIS 172, 2019 WL 2559548, the Supreme Court of Connecticut considered whether the issuance of an arbitration decision involving the general contractor precluded subsequent claims against subcontractors who worked on the same project. The court held that, because the subcontractors were presumptively in privity with the general contractor for purposes of res judicata and there were no facts requiring the court to depart from that presumption, the doctrine of res judicata applied and precluded the plaintiff’s claims against the subcontractors. Continue reading

This entry was posted in Arbitration, Connecticut, Construction Defects, Res Judicata and tagged , , .
Broken Bricks

Wisconsin Supreme Court Holds that Subrogation Waiver Does Not Violate Statute Prohibiting Limitation on Tort Liability in Construction Contracts


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In Rural Mut. Ins. Co. v. Lester Bldgs., LLC 2019 WI 70, 2019 Wisc. LEXIS 272, the Supreme Court of Wisconsin considered whether a subrogation waiver clause in a construction contract between the defendant and the plaintiff’s insured violated Wisconsin statute § 895.447, which prohibits limitations of tort liability in construction contracts. The Supreme Court affirmed the lower court’s decision that the waiver clause did not violate the statute because it merely shifted the responsibility for the payment of damages to the defendant’s insurance company. The waiver clause did not limit or eliminate the defendant’s tort liability. This case establishes that while
§ 895.447 prohibits construction contracts from limiting tort liability, a subrogation waiver clause that merely shifts responsibility for the payment of damages from a tortfeasor to an insurer does not violate the statute and, thus, is enforceable. Continue reading

This entry was posted in Construction Defects, Subrogation, Waiver of Subrogation, Wisconsin and tagged , , , , .
Community

Arizona Purchaser Dwelling Actions Are Subject to a New Construction


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Arizona recently amended its Purchaser Dwelling Action statute to, among other things, involve all contractors in the process, establish the parties’ burdens of proof, add an attorney fees provision, establish procedural requirements and limit a subcontractor’s indemnity exposure. The governor signed the bill—2019 Ariz. SB 1271—on April 10, 2019, and the changes go into effect and apply, retroactively “to from and after June 30, 2019.” The following discussion details some of the changes to the law. Continue reading

This entry was posted in Arizona, Construction Defects, Right to Repair Act and tagged , , , , .
Construction Defect

Texas Court of Appeals Strictly Enforces Certificate of Merit Requirements for Claims Against Professionals


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In Texas, an action against a licensed/registered professional arising from the provision of professional services requires the plaintiff to file a “Certificate of Merit” (COM), which is an affidavit from a third-party professional setting forth the theory of liability against the professional. Tex. Civ. Prac. & Rem. Code § 150.002. The COM must be filed contemporaneously with the complaint, unless the following two conditions, contained within Section 150.002(c), are both satisfied. First, the action must be filed within ten days of the expiration of the statute of limitations or repose. Second, the plaintiff must specifically allege in its initial petition against the professional that there is insufficient time to obtain a COM before the statute of limitations or repose expires. In such cases, a court will grant the plaintiff a 30-day extension to file a COM and the plaintiff may obtain further extensions from the court for “good cause.” If a plaintiff fails to comply with the COM requirement, Section 150.002(e) requires the court to dismiss the complaint and the dismissal “may be with prejudice.” Continue reading

This entry was posted in Construction Defects, Texas and tagged , , , .
Construction Defect

Rhode Island Examines a Property Owner’s Intended Beneficiary Status and the Economic Loss Doctrine in the Context of a Construction Contract


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In Hexagon Holdings Inc. v. Carlisle Syntec, Inc. No. 2017-175-Appeal, 2019 R.I. Lexis 14 (January 17, 2019), the Supreme Court of Rhode Island, discussing claims associated with allegedly defective construction, addressed issues involving intended beneficiaries to contracts and the application of the economic loss doctrine. The court held that, based on the evidence presented, the building owner, Hexagon Holdings, Inc. (Hexagon) was not an intended third-party beneficiary of the subcontract between the general contractor (A/Z Corporation) and the subcontractor, defendant McKenna Roofing and Construction, Inc. (McKenna). In addition, the court held that, in the context of this commercial construction contract, the economic loss doctrine applied and barred Hexagon’s negligence claims against McKenna. Continue reading

This entry was posted in Construction Defects, Contracts, Economic Loss Rule, Rhode Island, Warranty-Implied and tagged , .
Time

New Hampshire’s Statute of Repose for Improvements to Real Property Does Not Apply to Product Manufacturers


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In United Services Automobile Association v. Broan-Nutone, LLC, No. 218-2017-CV-01113,[1] the Superior Court of Rockingham County, New Hampshire recently considered whether the eight-year statute of repose for improvements to real property applied to the manufacturer of a ceiling ventilation fan that was installed in the property during its original construction. The court held that New Hampshire’s statute of repose did not apply to the manufacturer because it was not involved in incorporating its product into the property. Continue reading

This entry was posted in Construction Defects, New Hampshire, Statute of Limitations-Repose and tagged , .
Time

South Carolina Clarifies the Accrual Date for Its Statute of Repose


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In Lawrence v. General Panel Corp., 2019 S.C. LEXIS 1, No. 27856 (S.C. Jan. 1, 2019), the Supreme Court of South Carolina answered a certified question related to South Carolina’s statute of repose, S.C. Code § 15-3-640,[1] to wit, whether the date of “substantial completion of the improvement” is always measured from the date on which the certificate of occupancy is issued. The court held that a 2005 amendment to § 15-3-640 did not change South Carolina law with respect to the date of substantial completion. Thus, under the revised version of § 15-3-640, “the statute of repose begins to run at the latest on the date of the certificate of occupancy, even if there is ongoing work on any particular part of the project.” A brief review of prior case law may assist with understanding the court’s ruling in Lawrence. Continue reading

This entry was posted in Construction Defects, South Carolina, Statute of Limitations-Repose and tagged , .