Tag Archives: Construction Defects

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 , , , .
Gavel

Not All Damages Are Created Equal – the Proper Application of the Economic Loss Doctrine


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In William Lansing v. Doe, 2019 Ore. App. LEXIS 1564, the Court of Appeals of Oregon considered whether the Economic Loss Doctrine (ELD) applied to the plaintiff’s claims based on purportedly faulty construction work in a home. In determining that damage to persons or property is not a purely economic loss in the context of the ELD, the court concluded that the plaintiff could proceed with a negligence claim against a contractor that performed work on the home. Continue reading

This entry was posted in Construction Defects, Economic Loss Doctrine, Oregon and tagged , , .
Community

Virginia Molds Tort Versus Contract Law in New Home Construction Case


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Often times, both contract and tort claims co-exist in a subrogation matter and the line between the two can be blurred. This is especially true in the context of damages resulting from new home construction defect claims. However, states are increasingly attempting to define the scope of when the “gist of the action” is based in contract only. In Tingler v. Graystone, 834 S.E.2d 244 (Va. 2019), the Supreme Court of Virginia defined that scope in terms of new home construction. The court defined the “source of duty rule” by holding that claims of nonfeasance sounding only in contract do not give rise to an independent tort claim. The court also reiterated its application of the economic loss doctrine, stating that, when negligent actions result in damage to property other than the product itself, there can be a viable tort claim. Continue reading

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

Massachusetts Court Clarifies Statute of Repose Trigger for Multi-Phase Construction Projects


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In D’Allesandro v. Lennar Hingham Holdings, LLC, C.A. No. 17-cv-12567-IT, 2019 U.S. Dist. LEXIS 185874, the United States District Court for the District of Massachusetts recently discussed a case against a general contractor and its related entities, all of whom were involved in the construction of a multi-phase construction project. The court held that, in this context, completion of the “improvement” – which was the whole project, rather than each individual phase – triggered the six-year statute of repose. The court also held that the plaintiffs’ misrepresentation, breach of fiduciary duty and unfair business practices claims were not claims based on the design and construction of the improvement and, thus, were not subject to the statute of repose.

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