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The legal waters swirling around construction defect claims have gotten murkier for both residential and commercial contractors due to a recent decision by the Oregon Court of Appeals.
In Abraham v. T. Henry Construction Inc., et al., a residential construction defect case, the court tried to clarify when a contractor can be sued for negligence. The main issue was the statute of limitations, which is longer for a negligence claim than a breach-of-contract claim.
In a 2003 case, Jones v. Emerald Pacific Homes Inc., the appeals court ruled that an owner who had a contract with a contractor could sue for negligence if the contractor had violated a standard of care that was independent of any contractual duty. This non-contractual duty is called a “special relationship.” In Abraham, the court held that, among other things, a contractor’s responsibility to comply with applicable building codes creates the type of special relationship necessary for a negligence claim, according to a case summary by Portland law firm Stoel Rives.
Eric Grasberger, a Stoel Rives attorney who represents owners, developers, designers and contractors, said that prior to the Abraham decision, owners could make a strong case for the existence of a special relationship because owners must trust contractors to carry out certain “means and methods” of construction.
“You can’t be there to watch them hammer every nail or put every shingle on the roof, so the owner trusts the contractor to do that,” he said.
Generally, negligence claims would go to trial so a jury could determine whether a special relationship existed. The benefit of going to trial is that most cases settle before ever reaching a jury, Grasberger said.
However, the Abraham decision weakens the special relationship argument, a detriment for owners. It also allows owners to file negligence claims based on breaches of state building codes, which could bode badly for contractors, he noted.
“Most defect cases, 90 percent of the time, are water intrusion cases. I don’t think it’s too hard to show a breach of the Oregon uniform building code in most water intrusion cases,” Grasberger said.
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Reprinted from
Davis-Stirling.com by Adams Kessler PLC
MORE LIABILITY FOR HIRING
UNLICENSED CONTRACTORS
A recent decision by the California Court of Appeal reinforces the importance of avoiding unlicensed contractors. If associations hire unlicensed contractors, they could be liable for wage and hour claims filed by employees of the contractor. Although the case involved a general contractor and its subcontractors, associations who hire unlicensed contractors can be deemed a "general contractor" and the unlicensed contractors as "subcontractors." This means that any unpaid workers will be considered employees of the association and the association will be liable for paying those workers, even it the association already paid the contractor. Sanders Construction v. Cerda (2009) 175 Cal.App.4th 430.
RECOMMENDATIONS. Homeowner association boards should verify each contractor's license with the Contractors State License Board. In addition it should get proof of insurance. Boards should also add a provision to their contracts requiring contractors to indemnify the association for any wage and hour claims by its employees.
It is with great pleasure that we announce our new and completely reengineered website, which will make it easier for you to find important information about the Code Council and your profession quickly. The new site will go live in the next few days.
You will find navigating through the site to be intuitive and easy, with standardized menus on the top of the screen as well as on the left side to assist you. The user friendly site offers you quick access to the latest ICC 
news, events, and information about all of our products and services.
In addition to making the new ICC site more robust and functional, here are highlighted features and benefits that will enhance your experience:
In this initial phase, you will spot opportunities for improvement. Please give us your feedback. Comments and suggestions are always welcome. Send your comments to websitefeedback@iccsafe.org.
The address has not changed, but your experience will. Try it out on Monday Oct. 19 to explore the new features available to you.
Enjoy the difference!
Richard P. Weiland
Chief Executive Officer
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LOS ANGELES, Oct. 13 /PRNewswire/ -- Superior Court Judges Hon. Keith Davis of
San Bernardino and Hon. Stephen Sundvold of Orange County will appear on the
faculty of the "Construction Defect Litigation Update Conference" Nov. 19,
2009 at The City Club on Bunker Hill in Los Angeles.
The chairmen of the conference, attorneys Richard Glucksman of Chapman,
Glucksman, Dean, Roeb & Barger, APC of Los Angeles, and Kenneth Kasdan, Kasdan
Simonds Riley & Vaughan LLP of Irvine, Calif. and Phoenix, Ariz., assembled a
list of specialists from the building and insurance industries, as well as
from leading law firms.
In a review of headlines posted recently by "Mealey's Litigation Report:
Construction Defects," a leading monitor of the litigation published by
LexisNexis, California cases have produced settlements in matters involving
subcontractors for $15,000 in one case and $16,500 in another, while other
cases with a broader range of parties settled for $55,000, $525,000, $632,305,
and $1.3 million.
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My name is Bobby Person and I work on the Building Trades team here Delmar Cengage Learning – our group specializes in publishing print and digital products for the professional construction-related markets.
We have a premier product line which is a series of books for contractors marketed under the DEWALT brand – please see www.dewalt.com/guides for more information.
I am currently looking for a new author to write a DEWALT Deck Construction Handbook. This will be a very high-profile project with tremendous sales potential.
Please let me know if you are interested in hearing more about the opportunity. Thanks!
Bobby Person
Delmar | Cengage Learning
(o) 518.348.2670 | (m) 518.951.5422 | (e) robert.person@cengage.com | www.cengage.com/delmar
