CAI Law Reporter - September 2007

While this case involved a roof, it could easily be a deck over a living space...read on, I wrote in DECK in exchange for Roof...


Business Judgment Rule is not Defense in Breach of Contract Claim

Anderson v. Nottingham Village Homeowner’s Association, Inc., 37 A.D. 3d 1195, 830 N.Y.S.2d 882 (2007)

Powers of the Association: The business judgment rule neither constitutes a defense to a breach of contract claim nor protects an association from liability where an association is contractually obligated to maintain property, even though individual unit owners are responsible for interior damage.

Mary Ann Anderson and her mother owned a townhouse in a cooperative managed by Nottingham Village Homeowners’ Association (“association”). A leak in the DECK roof above the Andersons’ townhouse caused mold growth in the interior of their townhouse, which caused damage to the property and health problems for the Andersons. Mary Anderson sued the association for its failure to repair the unit’s DECK properly. The association’s Maintenance Responsibility Policy placed responsibility for DECK maintenance on the association but also provided that individual unit owners would be responsible for interior water damage.

After Mary Anderson asked the court to add her mother as an additional plaintiff and seek damages for property damage and health problems arising from mold growth in the apartment, the association moved for summary judgment, arguing that the business judgment rule insulated the association from liability for failure to repair the DECK properly. The trial court denied Anderson’s motion and granted the association’s cross motion. Anderson appealed.

The business judgment rule bars judicial review of the reasonableness of decisions made by the managing board of condominiums or co-ops if the board acts within its authority, its action has a legitimate relationship with the purposes of the association, and there is no showing of bad faith, self-dealing, fraud, or other misconduct. However, as in this case, where the issue was breach of contract, the court determined that the business judgment rule did not apply and did not protect the association from liability for its alleged breach of contract.

The court affirmed that Anderson had contractually assumed responsibility for interior water damage resulting from a leaky DECK but concluded that the trial court abused its discretion in denying Anderson’s motion and her mother as an additional plaintiff. Stating that leave to amend a pleading should be freely granted if the amendment was not lacking in merit and there was no prejudice to the nonmoving party, the court ruled that the proposed amended complaint sufficiently alleged the breach of a duty of reasonable care independent of the association’s contractual duties and resulting non-economic damages to set forth a separate tort claim.

However, the court denied Anderson’s motion to recover punitive damages because the association’s conduct did not rise to the level of a high degree of moral culpability manifesting a conscious disregard of others’ rights or constituting willful or wanton negligence or recklessness.

WESTCON Annual Symposium -Plaza and Deck Waterproofing

A Must Attend Event for those in the trade!

Western Construction Consultants

Plaza and Deck Waterproofing
A look at all aspects of plaza, walkway, and balcony waterproofing.

For: Architects, Engineers, Consultants, Waterproofing and Roofing Contractors, Specifiers,
General Contractors, Attorneys, Building Officials,
Project Managers

to register online click here

or

download pdf


DETAILS


DATE:
Thursday, November 1, 2007
Golden Gate Fields, Turf Club
1100 Eastshore Highway, Berkeley, CA 94710
(866) 928-7223

TIME:
Registration is from 7:30 to 8:00am.
The program will begin at 8:00am and end at 5:00pm.
Complimentary lunch provided
between 12:00 and 1:00pm

TUITION:
$250 for first registrant
$235 each additional registrant of the same company
$230 Westcon Members -additional registrant: $215
After October 25th:
$280 for first registrant and
$265 each additional registrant

Pre-register:
By Mail: 405 Phillips Drive
Penngrove, CA 94951
By Phone: (707) 792-1323
By Fax: (707) 792-1323
By Email: info@westcon.org
On Line: www.westcon.org

Walk-in:
You may register at the door if space is available. If you have not pre-registered, please call the day before the seminar to confirm there have been no location or schedule changes and space is available.

Refund Policy:
Refunds are available up to 5 business days prior to the event. Call (707) 792-1323. NO REFUNDS WILL BE GIVEN AFTER OCTOBER 24TH.

HIGHLIGHTS

* History of Horizontal Waterproofing.
* Types and Compositions of Waterproofing Products.
* Regulations and Codes relating to waterproofing.
* Surface Preparation and Detailing.
* Waterproofing flashing detailing.
* Balcony flashing detailing.
* Drains and Scuppers.
* Flood tests and why testing is required.
* Comparison of benefits and limitations of waterproofing and balcony coatings.

Format:

Live lecture format with mock-ups, PowerPoint graphics, text, and photographs. An outline of the seminar will be provided to the attendees for note-taking convenience.

Continuing Education Credit:
This seminar is a valuable opportunity to get the knowledge critical to keeping you up to date in your profession.

AIF Self Reporting Forms will be available at the check in table. Attendance certificates will be issured upon completion of the seminar.

SPEAKERS

MANFRED (Fred) HONECK: Is a Principal of Aquatech Consultancy, a pioneer in construction waterproofing material development as well as applications of liquid applied membranes systems and advanced industrial coatings. He is a registered professional engineer and construction consultant. Mr. Honeck has degrees in Coating & Resin Technology and Business Administration. He holds California state contracting licenses in “General Contracting”, Roofing and Waterproofing, Painting and Decorating and Flooring.

JIM STRONG: Consultant with Wiss, Janney, Elstner Associates with over two decades of extensive experience investigating and solving water leakage problems for a range of building components including roofing, plaza and parking deck waterproofing systems, facades, windows and below-grade walls.

RICK NORRIS: Principal of Norris Consulting Services, Mr. Norris specializes in roof coverings, wall waterproofing, elevated deck and window and door flashing systems and is an expert in the biological deterioration of wood in service.

PAUL GOETZ: Principal/Senior Consultant, with over 25 years of practical and diverse waterproofing and construction experiences in the areas of project management, contracting, specification preparation, estimating, and forensic consulting. He is an experienced forensic investigator and a licensed Roofing and Waterproofing Contractor in the State of California. He is a member of the Roof Consultants Institute (RCI), Construction Specification Institute (CSI), International Concrete Repair Institute (ICRI) and is recently Past President of the Western Construction Consultants Association (WESTCON).

CHRIS NELSON: Senior Consultant with Technical Roof Services, Inc., has 28 years experience with roofing, waterproofing, wall weather proofing of all types as a workman, general contractor, and as a consultant. Responsibilities are investigating problematic leakage and devising repair solutions of buildings of all type and systems.

TOM BUTT: President and Principle-In-Charge of Interactive Resources, a 30-year full-service architecture–engineering firm. He is a licensed architect and general contractor with extensive forensic architectural experience and more than 35 years of experience with the design of institutional, residential, commercial and public buildings.

MYLES F. CORCORAN: CEO of Myles F. Corcoran Construction Consulting, Inc. (MFC), a construction litigation, dispute resolution, construction design and management firm founded in 1990. He has been involved with the analysis of water intrusion issues as well as designing custom waterproofing details for commercial, residential and public buildings since 1982. Mr. Corcoran is a licensed general contractor, expert witness, certified building Inspector, arbitrator, and mediator.

Water destroy's deck's framing

So, I'm at a job inspection in Camarillo at this estate home. A General Contractor had called us in for estimating the costs of waterproofing the deck, after the framing was rebuilt.

Here are some pictures documenting the damage that can be caused by water intrusion into a buildings framing. Total estimate of damage-over 100k to fix. Pay a little now to inspect and repair or spend a lot to replace what could have been saved with due diligence!

TCNA - TCA Publications

If you waterproof decks for tile applications, you'd better have this in your library! Buy it today from Tile Council of America! No, sorry, we don't get any referral fees or commissions. We bought this book and simply suggest you do to!

TCNA - TCA Publications: "The 2007 version of the TCA Handbook for Ceramic Tile Installation provides specification writers, architects, contractors and installers industry-consensus detailed drawings and installation specification guidelines for 101 installation methods. The specification guidelines for each method include recommended uses, limitations, requirements, materials, preparation by other trades, movement joints and installation specifications. It references American National Standards Institute (ANSI) standards and American Society for Testing and Materials (ASTM) test methods. The 2007 Handbook features: + More than 300 updates + Significant changes in deflection language + All changes are marked with an '07' graphic + Includes Floor Covering Cost Comparison"

RCI, Inc.

RCI, Inc.: "2007 Symposium on Building Envelope Technology - November 8-9 Designing, Detailing and Specifying the Building Envelope of Today and Tomorrow Symposium Dates: Thursday, November 8, 2007 Friday, November 9, 2007 Location: Seaport Hotel 200 Seaport Boulevard, Suite 304 Boston, MA 02210 617-385-4000 Web site: www.seaportboston.com Technical Education for Building Envelope Professionals The Symposium on Building Envelope Technology is a two-day educational program offering cutting-edge information regarding design, construction, maintenance and repair of modern and/or aging older building envelopes. The event's open, inclusive environment encourages attendees to ask questions and stimulates dialogue. Speakers offer relevant solutions by referencing real-world examples and specific case histories. Each registrant will receive a comprehensive proceedings book detailing program information. Breakfast, lunch and breaks will be catered daily. There will be an informal social reception Thursday evening. Educational Programs Include * Using the Whole Building Approach to Design High-performance Buildings * Design Principles for Plaza Waterproofing Systems * Corrosion Assessment of an Office Building’s Aluminum Curtain Wall Components * Slate Roof Evaluation and Design Considerations * Wall Claddin"

Pacific Polymers

Pacific Polymers: "75 Million Dollar Home employs Pacific Polymers' ELASTO-DECK 5000X2 SYSTEM PORTABELLO ESTATE: On the cliffs near Arch Rock in Corona Del Mar, it’s up for sale for a cool $75 million – the second highest asking price in the nation. The roof is over 22,000 sq. ft. and due to the unique design, the architect specified their Elasto-Deck 5000 X2 system, which carries a Class 'A' fire rating."