SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Texas EIFS Case May Have Future Implications for Construction Defects

October 02, 2013 — CDJ STAFF
Lennar Homes addressed a problem with EIFS in homes built in Texas in the 1990s by replacing every roof they had built. Some of those homes had problems with leaks, rotting, or termites, but other roofs hadn’t suffered any problems. Lennar’s insurers initially refused coverage. Lennar managed to settle with all but one, Markel American Insurance. Their dispute formed the case Lennar Corp. v. Markel American Insurance Co. This was first tried before a jury and eventually appealed to the Texas Supreme Court. Brian S. Martin of Thompson Coe Cousins & Irons LLP discusses this case at Insurance Journal. Markel’s claim was that under the policy language, Lennar could not make voluntary payments without getting Markel’s consent, which they did not. But the Texas Supreme Court disagreed, determining that Lennar took, as Mr. Martin notes, “a reasonable approach to a serious problem.” Markel also made the claim that the whole amount of the damages was not covered by the policy, as they did not view the policy as covering the cost of determining the extent of the damage. The Court disagreed, noting that “under no reasonable construction of the phrase can the cost of finding EIFS property damage in order to repair it not to be considered ‘because of the damage.’” Mr. Martin concludes by calling the Texas Supreme Court decision “a frontal assault on several critical provisions of liability policies that will assuredly lead to further litigation.” He also notes that the decision “may indicate a shift in the Court’s approach in insurance cases to a more result-oriented jurisprudence.” Read the court decision
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Miller Law Firm Helped HOA Recover for Construction Defects without Filing a Lawsuit

July 16, 2014 — Beverley BevenFlorez-CDJ STAFF
According to a press release published on the PR Newswire, The Miller Law Firm “recovered $910,000 for the 1635 California Owners' Association for construction defects without ever filing a complaint.” William Nagle, Special Master & Mediator, facilitated the settlement “a year after putting the builder on notice under SB 800, California’s Right to Repair Law.” “Independent forensic expert inspections revealed building standard violations ranging from improperly installed gutters resulting in water intrusion in the units project wide, active leaks, standing water and inadequate gutters resulting in staining and efflorescence on the garage walls, balcony, and tile grout, discoloration and extensive cracking in the stucco project wide, inadequate weather stripping with evidence of condensation staining at windows, window frames and adjacent paint, inadequate ventilation, and ADA violations including loose glass guardrails and in regards to accessible rooftop common areas,” according to the press release. “This case settled prior to any formal mediation and I credit the diligence of both the Association and builder counsel,” Nagle stated. “Tom Miller is one of the most knowledgeable and respected plaintiffs' lawyers in the construction defect area. And I compliment both counsel on their preparation and cost-effective handling of the case in reaching a fair and reasonable result for their respective clients." Read the court decision
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Ohio Condo Owners Sue Builder, Alleging Construction Defects

September 10, 2014 — Beverley BevenFlorez-CDJ STAFF
Seventy-four condominium owners that reside in the Villas at Northstar in Westerville, Ohio, have sued Romanelli & Hughes, the builder, for alleged construction issues that led to water intrusion, according to The Columbus Dispatch. “There have been noted deficiencies at every building out there, with both the roofs and wall systems,” Kevin Fields, a partner at Kasman & Cusimano, the firm that is representing the condo owners, told The Columbus Dispatch. “There’s been severe water infiltration through the walls, which has caused underlying damage, and various roof leaks and roofs not properly secured — in essence, sliding off the buildings.” Counsel for the builder, Gabe Roehrenbeck, a partner with Thompson Hines law firm, stated that “he could not comment on the specifics of the case…because he has not had time to analyze it.” But he issued the statement, “Romanelli & Hughes is an award-winning builder that over the course of more than 40 years has built a reputation for client service and satisfaction.” Construction defects listed in the suit include “failure to install or improper installation of flashing, ice shields, roofing paper, shingles, control joints in stucco and weather-resistant barriers.” Read the court decision
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Construction Defect Bill Removed from Committee Calendar

February 12, 2013 — CDJ STAFF
Colorado State Senator Mark Scheffel has removed Senate Bill 13-052 from the Senate Judiciary Committee’s calendar because he feels an upcoming study on construction near transit centers will be important for the consideration of the bill. SB 13-052 would affect construction defect claims in communities that were within a half mile of public transportation. Critics claim it would gut construction defect protections, as even a bus stop would count as a “mass transit center.” Scheffel says he doesn’t know what the study will find, but says that whether he likes or hates it, it will be relevant. Read the court decision
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Lewis Brisbois’ Houston Office Selected as a 2020 Top Workplace by the Houston Chronicle

December 21, 2020 — David Oubre - Lewis Brisbois
Lewis Brisbois’ Houston office was recently selected for inclusion in the Houston Chronicle’s 2020 Top Workplaces section. To determine the recipients of this honor, the publication surveyed more than 37,000 Houston-area employees regarding their organization’s leadership, cooperation, communication, work-life balance, pay, and benefits. Based upon the employees’ feedback, the publication selected its Top Workplaces winners and announced them during a virtual awards ceremony in November. Houston Office Administrator Kristi Kraeger expressed excitement concerning this honor, explaining, “In the two years I have been with Lewis Brisbois, we have more than doubled in size. We have created a friendly, professional, team-oriented environment, and we strive to provide growth and opportunity to our employees.” Read the court decision
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Reprinted courtesy of David Oubre, Lewis Brisbois
Mr. Oubre may be contacted at David.Oubre@lewisbrisbois.com

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Because I Haven’t Mentioned Mediation Lately. . .

November 23, 2020 — Christopher G. Hill - Construction Law Musings
Any regular reader of Construction Law Musings knows that I am both a great believer in mediation and a certified Virginia mediator. After the last few weeks in which I participated in mediation by Zoom, a Judicial Settlement Conference (read, court-ordered mediation with a retired judge), and will be participating in another mediation in person next week, it seems as if others believe in the process as well. After all of this mediation activity, all of which related to construction project-related disputes, I am more convinced than ever that almost every construction case should at least be submitted for mediation. The list below gives my reasons for saying this:

1. The parties are in control. In litigation or arbitration, the parties present their evidence to a third party or parties with no familiarity with the “boots on the ground” reality of the construction project at issue. This third party gives a cold review of what evidence court rules allow them to consider and gives a final ruling that one side “wins” and the other side “loses.” This decision has monetary consequences for the losing party, not the least of which is a large attorney fee bill after potentially several years of legal wrangling. With mediation, those closest to the project, the parties, can say what they want, present what they feel to be the best case, and work for a solution. The solution can be flexible and allow the two sides to reach a business decision that is at least better than a large monetary judgment against one of the parties that is only further enforceable in court.

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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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MTA Implements Revised Contractors Debarment Regulations

July 06, 2020 — Steven M. Charney, Gregory H. Chertoff & Paul Monte - Peckar & Abramson, P.C.
On June 3, 2020, the Metropolitan Transit Authority (“MTA”) published and implemented revised regulations pertaining to the debarment of contractors. The revised regulations address many of the deep concerns raised by the contracting community. Under relevant administrative procedure, the MTA publication of the revised regulations starts a 45 day notice period before the regulations can be adopted as final. The prior regulations essentially required that debarment occur upon a purely formulaic calculation establishing that a contractor: 1) was more than 10% late, or 2) had submitted invalid claims that exceeded the adjusted contract price by a measure of 10%. The revised regulations represent improvements over the prior regulations. Critically, the revised regulations address the primary concern raised by the contracting community, that being the mandate of purely formulaic debarment. Instead, the revised regulations establish a process that includes greater flexibility and discretion before debarment may ensue. Reprinted courtesy of Peckar & Abramson, P.C. attorneys Steven M. Charney, Gregory H. Chertoff and Paul Monte Mr. Charney may be contacted at scharney@pecklaw.com Mr. Chertoff may be contacted at gchertoff@pecklaw.com Mr. Monte may be contacted at pmonte@pecklaw.com Read the court decision
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A Court-Side Seat: “Inholdings” Upheld, a Pecos Bill Come Due and Agency Actions Abound

January 25, 2021 — Anthony B. Cavender - Gravel2Gavel
Here are some significant environmental and regulatory rulings and administrative actions from December 2020. THE U.S. SUPREME COURT Texas v. New Mexico On December 14, 2020, the U.S. Supreme Court decided a water rights controversy involving sharing the water of the Pecos River. The 1949 Pecos River Compact provides for the equitable apportionment of the use of the Pecos River’s water by New Mexico and Texas, and a “River Master’s Manual,” approved by the Court in 1988, implements the Compact. These are very dry areas, and access to this water is very important. In 2014, a rare tropical storm drenched the Pecos River Basin, and Texas asked New Mexico to temporarily store the water that would otherwise flow into Texas. A few months later, New Mexico released the water to Texas, but the quantity was reduced because some of the water held by New Mexico had evaporated. The River Master awarded a delivery credit to New Mexico, and after Texas objected, Texas “in response” filed the Original Jurisdiction of the Court, suing New Mexico and seeking a review of the River Master’s determination. The Court held for New Mexico, deciding that this dispute was subject to and resolved by the Manual. This case is important because it highlights the high value the states place on the equitable apportionment of water that flows through different states. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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