Tag Archives: Construction Defects

Where-Forum Art Thou? Is the Chosen Forum Akin to No Forum at All?

This entry was posted by William L. Doerler on May 19, 2022.

Many courts enforce forum selection clauses in contracts between parties. In W. Bay Plaza Condo. Ass’n v. Sika Corp., No. 3D21-1834, 2022 Fla. App. LEXIS 1637 (W. Bay Plaza), the Court of Appeal of Florida, Third District (Court of Appeal) answered the question of whether a mandatory forum selection clause in a manufacturer’s warranty was enforceable as to a condominium association, who was a non-signatory. The trial court enforced the forum selection clause – calling for litigation in New Jersey rather than Florida – and the Court of Appeal affirmed the ruling. Continue reading →

This entry was posted in Construction Defects, Contracts, Florida, Privity, Warranty – Express and tagged Condominiums, Construction Defects, Contracts - Enforcement, Florida, Forum-Venue, Privity, Warranty – Express.

Tenants Underwater: Indiana Court of Appeals Upholds Privity Requirement for Property Damage Claims Against Contractors

This entry was posted by Melissa Kenney on April 21, 2022.

In United States Automatic Sprinkler Corp. v. Erie Ins. Exch., et al., No. 21A-CT-580, 2022 Ind. App. LEXIS 87 (Automatic Sprinkler), the Court of Appeals of Indiana (Court of Appeals) considered whether there is a privity requirement for property damage claims against contractors. The court imposed a privity requirement. The court also addressed whether a subrogation waiver in a contract with a tenant applied to damage caused by work done outside the contract, at the landlord’s request. The court held that the waiver did not apply. Continue reading →

This entry was posted in Construction Defects, Indiana, Landlord-Tenant, Privity, Subrogation, Waiver of Subrogation and tagged Construction Defects, Indiana, Landlord-Tenant, Privity, Subrogation, Waiver of Subrogation.

Waive It Goodbye: Despite Evidence to the Contrary, Delaware Upholds an AIA Waiver of Subrogation Clause

This entry was posted by Lian Skaf on April 12, 2022.

Subrogation professionals have always been looking for ways to defeat onerous waiver of subrogation provisions in contracts signed by insureds. However, even when contracts are unsigned, if there is intent when the contract is made – usually long before a loss occurs – a waiver of subrogation can doom what otherwise may have been a strong case. The Superior Court of Delaware considered such a scenario to determine whether a waiver of subrogation provision applied to a multimillion-dollar subrogation case.

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This entry was posted in Construction Defects, Contracts, Delaware, Waiver of Subrogation and tagged Construction Defects, Contracts - Formation, Delaware, Waiver of Subrogation.

Too Late for The Blame Game: Massachusetts Court Holds That the Statute of Repose Barred a Product Manufacturer from Seeking Contribution from a Product Installer

This entry was posted by Gus Sara on March 9, 2022.

In State Farm Fire & Cas. Co. v. Wangs Alliance Corp., No. 21-cv-10389-AK, 2022 U.S. Dist. LEXIS 26712, the United States District Court for the District of Massachusetts (District Court) considered whether a product manufacturer was barred by the Commonwealth’s six-year statute of repose for improvements to real property from joining the installer of the product as a third-party defendant. The court denied the defendant’s motion for leave to file a third-party complaint to join the installer, finding that the installer completed its work more than six years prior to the motion being filed. This case reminds us that Massachusetts’ six-year statute of repose for improvement to real property also bars a defendant’s contribution claims against third parties. Continue reading →

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

Tick Tock: Don’t Let the Statute of Repose or Limitations Time Periods Run on Your Construction Claims

This entry was posted by Gus Sara on February 23, 2022.

In Wascher v. ABC Ins. Co., No. 2020AP1961, 2022 Wisc. App. LEXIS 110 (Feb. 9, 2022), the Court of Appeals of Wisconsin considered whether the plaintiffs were barred — by Wisconsin’s 10-year statute of repose for improvements to real property claims and the six-year statute of limitations for breach of contract claims — from bringing a lawsuit against the original builders of their home. The plaintiffs alleged negligence and breach of contract against the masonry subcontractors, asserting that they improperly installed the exterior stone cladding. The court found that the plaintiffs’ claims against the original builders were time-barred. Continue reading →

This entry was posted in Construction Defects, Contracts, Statute of Limitations-Repose, Wisconsin and tagged Construction Defects, Contracts, Statute of Limitations, Statute of Limitations – Discovery Rule, Statute of Repose, Substantial Completion, Wisconsin.

Do Not Ignore Construction Defect Claims if You Are on Inquiry Notice

This entry was posted by Ryan Bennett on February 14, 2022.

In Ryan Altenbaugh, et al. v. Benchmark Builders Inc., et al., No. 120, 2021, 2022 Del. LEXIS 24, the Supreme Court of Delaware recently affirmed the lower court’s ruling that the statute of limitations barred the homeowners’ negligent construction claims. Although the court applied the discovery rule to toll the running of the three-year statute of limitations, it found that the homeowners were on inquiry notice of the defects within their home eight years before filing suit. Continue reading →

This entry was posted in Construction Defects, Delaware, Statute of Limitations - Tolling and tagged Construction Defects, Delaware, Statute of Limitations - Tolling.

Utah Digs Deep and Finds “Design Defect” Includes Pre-Construction Geotechnical Reports

This entry was posted by Kyle Rice on November 16, 2021.

The Supreme Court of Utah recently found that an incorrect pre-construction geotechnical engineering report is a “defective design.” Thus, actions arising from an incorrect geotechnical report are appropriately governed by Utah’s Economic Loss Statute (Statute), Utah Code Ann. § 78B-4-513(1). Continue reading →

This entry was posted in Construction Defects, Economic Loss Rule, Utah and tagged Construction Defects, Design Defect, Economic Loss Doctrine, Privity, Utah.

Nevada’s Common Law Meaning of the Term “Substantial Completion” in the Statute of Repose

This entry was posted by William L. Doerler on September 29, 2021.

Statutes of repose establish a legislature’s determination of when defendants should be free from liability. As set forth in Nevada Revised Statute (NRS) 11.202, the statute of repose for construction improvements in Nevada is six years after “substantial completion.” In Somersett Owners Ass’n v. Somersett Dev. Co., 492 P.3d 534 (Nev. 2021), the Supreme Court of Nevada (Supreme Court) discussed when a construction improvement is substantially complete, as defined by the common law, for purposes of NRS 11.202. Because the plaintiff did not establish that its suit was filed within six years of when the rockery walls at issue were substantially complete, the Supreme Court affirmed the decision of the court below. Continue reading →

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

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

This entry was posted by Gus Sara on March 31, 2021.

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 Construction Defects, Economic Loss Doctrine, Pennsylvania, Unfair Trade Practices.

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

This entry was posted by Gus Sara on March 5, 2021.

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 Construction Defects, Contracts, Indemnification, Massachusetts, Status of Repose, Subrogation.