Tag Archives: Construction Defects

Gavel

Saved By The Statute: The Economic Loss Doctrine Does Not Bar Claims Under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law


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In Earl v. NVR, Inc., No. 20-2109, 2021 U.S. App. LEXIS 6451, the U.S. Court of Appeals for the Third Circuit (Third Circuit) considered whether, under Pennsylvania law, the plaintiff’s Unfair Trade Practices and Consumer Protection Law (UTPCPL) claims against the builder of her home were barred by the economic loss doctrine. The UTPCPL is a Pennsylvania statute that prohibits “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” 73 Pa. Stat. Ann. § 201-3. The Third Circuit previously addressed the impact of the economic loss doctrine on UTPCPL claims in Werwinski v. Ford Motor Co., 286 F.3d 661 (3d Cir. 2002). In Werwinski, the court held that the plaintiff’s UTPCPL claim was barred by the economic loss doctrine. The Court of Appeals overturned its decision in Werwinski and held that the economic loss doctrine does not bar UTPCPL claims since such claims are statutory, and not based in tort. Continue reading

This entry was posted in Construction Defects, Economic Loss Rule, Pennsylvania and tagged , , , .
Gavel

What’s the Gist? Massachusetts Court Looks Past the Labels to the Gist of the Plaintiff’s Allegations to Find Claims Barred by the Statute of Repose


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In Lennar Northeast Props. v. Barton Partners Architects Planners, Inc, C.A. No. 16-cv-12330-ADB, 2021 U.S. Dist. LEXIS 11800, the United States District Court for the District of Massachusetts considered whether a property owner’s construction defect claims against a contractor were barred by the six-year statute of repose for improvements to real property. Massachusetts’ statute of repose, Mass. Gen. Laws ch. 260, § 2B, bars tort actions against those involved in the design, planning, construction or general administration of an improvement to real property more than six years after the earlier of the dates of (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession or occupancy by the owner. Finding that, despite the fact that the plaintiff’s actions were labeled as contract, breach of warranty and consumer protection act claims, the complaint alleged actions sounding in tort. Thus, the court applied the statute of repose to these claims. Continue reading

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

Washington Court Finds that Statute of Repose Fraud Exception Argument Lacks Energy


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Statutes of repose are generally meant to be absolutes, providing clarity to potential defendants such as contractors. However, in limited scenarios, some states have allowed for exceptions to the defense. For instance, fraud is one potential exception that has been recognized in several jurisdictions and is often raised by parties on the basis of public policy. In Puget Sound Energy, Inc. v. Pilchuck Contractors, Inc., No. 80162-7-1, 2020 Wash. App. LEXIS 2862 (unpublished), the Court of Appeals of Washington determined whether it would allow a fraud exception to its statute of repose for construction activity. The court upheld the trial court’s holding that the statute of repose barred the appellant’s claims, declining to entertain a fraud exception. Continue reading

This entry was posted in Construction Defects, Statute of Repose, Washington and tagged , , .
Community

Massachusetts Pulls Phased Trigger On Its Statute of Repose


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In D’Allesandro v. Lennar Hingham Holdings, LLC, 486 Mass 150, 2020 Mass. LEXIS 721, the Supreme Judicial Court of Massachusetts answered a certified question regarding how to apply the Massachusetts statute of repose, Mass. Gen. Laws ch. 260, § 2B, in regards to phased construction projects. The court held that, in this context, the completion of each individual “improvement” to its intended use, or the substantial completion of the individual building and the taking of possession for occupancy by the owner or owners, triggers the statute of repose with respect to the common areas and limited common areas of that building. Additionally, the court held that where a particular improvement is integral to, and intended to serve, multiple buildings (or the development as a whole), the statute of repose is triggered when the discrete improvement is substantially complete and open to its intended use.

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

Parties’ Agreement Doesn’t Pull the Trigger on California’s Statute of Repose


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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

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Fire

Mississippi Supreme Court Applies AIA Subrogation Waiver to Non-Work Property Damage


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In Liberty Mutual Fire Ins. Co. v. Fowlkes Plumbing., L.L.C., No. 2019-FC-10285-SCT, 2020 Miss. LEXIS 44, the Supreme Court of Mississippi considered whether the subrogation waiver in the General Conditions of the Construction Contract, American Institute of Architects (AIA) form A201-2007, applied to claims for damages to property unrelated to the construction work. Siding with the majority of jurisdictions that have addressed this issue, the court interpreted the AIA subrogation waiver to apply to any property damage, whether or not related to the construction work (i.e. the Work), if the property insurance covering the non-Work property also insured the construction work. Continue reading

This entry was posted in AIA Contracts, Construction Defects, Contracts, Mississippi, Subrogation, Waiver of Subrogation and tagged , , , , , .
Construction Defect

Not so Fast – Florida’s Legislature Overrules Gindel’s Pre-Suit Notice/Tolling Decision Related to the Construction Defect Statute of Repose


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As discussed in a prior blog post, in Gindel v. Centex Homes, 2018 Fla.App. LEXIS 13019, Florida’s Fourth District Court of Appeal held that when the plaintiffs provided a pre-suit notice in compliance with §558.004 of Florida’s construction defect Right-to-Cure statute, Fla. Stat. §§ 558.001 to 558.005, et. seq., they commenced a “civil action or proceeding,” i.e. an “action,” within the meaning of Florida’s construction defect Statute of Repose, Florida Statue § 95.11(3)(c). Thus, the court held that the plaintiffs commenced their action prior to the time Florida’s 10-year statute of repose period ended. In overturning the lower court’s dismissal of the action, the court found that because the Right-to-Cure statute, §558 of the Florida Statutes, sets out a series of mandatory steps that must be taken prior to bringing a judicial action, filing pre-suit notice of claim sufficiently constituted an “action” for purposes of Florida’s Statute of Repose. Continue reading

This entry was posted in Construction Defects, Florida, Right to Repair Act, Statute of Limitations-Repose and tagged , , , .
Signing Agreement

What Did the Contract Say Again? Preventing Application of a Prime Contract Based Solely on Generic Incorporating Language in the Subcontract


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In Edifice Constr. Co., Inc. v. Arrow Insulation, Inc., No. 79407-8-1, 2020 Wash App. LEXIS 359, the Court of Appeals of Washington considered whether subcontractors could be bound by the arbitration clause in a contract between an owner and a general contractor. In determining that the subcontractors were not bound by the arbitration clause in the prime contract, the court found that the general contractor failed to meet its burden of showing that the subcontractors were on notice of the specific terms of the prime contract. Continue reading

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Construction Defect

Minnesota Addresses How Its Construction Statute of Repose Applies to Condominiums


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Courts often struggle with the question of when the statute of repose starts to run for construction projects that involve multiple buildings or phases. In Village Lofts at St. Anthony Falls Ass’n v. Housing Partners III-Lofts, LLC, 937 N.W.2d 430 (Minn. 2020) (Village Lofts), the Supreme Court of Minnesota addressed how Minnesota’s 10-year statute of repose, Minn. Stat. § 541.051, applies to claims arising from the construction of a condominium complex. The court held that the statute of repose begins to run at different times for: a) statutory residential warranty claims brought pursuant to Minn. Stat. §§ 327A.01 to 327A.08, et. seq.; and b) common law claims arising out of the defective and unsafe condition of the condominium buildings. Continue reading

This entry was posted in Construction Defects, Minnesota, Statute of Limitations-Repose, Warranty - Construction and tagged , , , , .
Large Property Loss

Massachusetts Court Holds Statute of Repose Does Not Apply to Claims for Failure to Maintain Property


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In Penn-America Insurance Company v. Bay State Gas Company, 96 Mass. App. Ct. 757 (2019), the Appeals Court of Massachusetts considered whether the plaintiff’s claims against the defendant, arising from an alleged defect in the defendant’s natural gas line, were time-barred by the six-year statute of repose for improvements to real property. The Appeals Court held that the statute of repose did not apply to the plaintiff’s claims, which were related to the defendant’s alleged failure to maintain its property. Thus, in Massachusetts, the statute of repose does not apply if the plaintiff’s claim is rooted in the failure to maintain an improvement, rather than negligent design or construction of the improvement. Continue reading

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