1 AAS PROVENCAL V. SUPERIOR COURT OF SAN DIEGO COUNTY: AN APPRAISAL EXPERT'S VIEW MICHAEL V. SANDERS, MAI, SRA * The opinion in this case resulted from consolidated proceedings relative to two separate construction defect cases filed against The William Lyon Company and Lyon Communities, Inc., one involving a single-family subdivision (Aas) and the other a condominium project (Provencal). 1 Among the plaintiff's allegations were building code violations, failure to meet a reasonable and workmanlike standard of care, and deviation from approved plans and specifications. The trial court granted motions in limine brought by the defendant Lyon and related subcontractors excluding evidence of construction defects which allegedly caused economic loss, but without personal injury or physical damage to other property, and also excluding evidence of post-repair stigma damages. Three issues were considered by the court: whether developers, general contractors and subcontractors owe a duty of care to individual homeowners and community associations with respect to mass-produced housing; whether homeowners and associations can recover damages based on negligence in construction defect actions for economic losses; and whether homeowners and associations may recover post-repair stigma damages. Duty of Care While recognizing that the primary issues in the case related to damage rather than duty, the court nonetheless addressed this issue, ostensibly for the purpose of clarifying duty of care as it relates to the concept of a "special relationship" necessary to establish liability for negligence in the absence of contractual privity. The defendant (Lyon) contended that a "special relationship" as defined in J'Aire 2 did not exist, a concept based on several * Michael V. Sanders, MAI, SRA is an independent real estate appraiser based in Southern California, specializing in real estate damages and value diminution. He holds a BA in Business Administration from California State University Fullerton and is a designated member of the Appraisal Institute. l. Aas v. The Superior Court of San Diego County, 64 Cal.AppAth 916, 75 Cal.Rptr.2d 581 (1998). 2. J'Aire Corporation v. Gregory, 24 Cal.3d 799, 598 P.2d 60, 157 Cal.Rptr. 407 (1979).
2 2 SAN FRANCISCO LAW REVIEW [Vol. 8 factors outlined in the earlier Biakana 3 case for establishing liability to a third party plaintiff. Among these are the following "Biakanja factors" which were considered in Aas/Provencal: extent to which a transaction is intended to affect the plaintiff, foreseeability of harm, certainty of injury to plaintiff, connection between defendant's conduct and alleged injury to plaintiff, moral blame attributed to defendant's conduct, and policy of preventing future harm. While the trial court ruled there was no "special relationship" between plaintiff and defendant which would allow recovery of economic damages, the appellate court disagreed, ruling that the Biakanja test did result in a special relationship, and moreover equated the existence of such a special relationship with a duty of care. The same factors were considered in Sabella, 4 a construction defect case discussed post, where the court ruled that a builder/ contractor owes a "duty of care in construction" to "the class of prospective homebuyers for which [the defendant] admittedly built the dwelling." Analysis of the Biakanja factors is acknowledged to be a matter of judgment, though it is interesting, within the context of the Aas/Provencal case, that the court ruled the plaintiffs' "allegations... are sufficient to show the requisite certainty that petitioners have suffered latent harm," while subsequently denying recovery of economic damages. Recovery of Damages for Construction Defects At issue is whether owners of mass-produced housing and/or homeowner associations can recover economic losses in negligence against developers, general contractors and subcontractors for construction defects, when the alleged defects have not resulted in personal injury or physical damage to other property.' While seemingly acknowledging some difficulty in distinguishing "economic loss" from "property damage," the court applies the "economic loss doctrine" outlined in Seely, 6 which draws a clear distinction between tort recovery for physical injury and warranty recovery for economic loss. In doing so, the court effectively denies recovery of economic damages in negligence, following the reasoning that a manufacturer (i.e., a developer of mass- Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16, 65 A.LR.2d 1358 (1958). 4. Sabella v. Wisler, 59 Cal.2d 21, 377 P.2d 889, 27 Cal.Rptr. 689 (1963). 5. Defined as "property other than the defectively constructed portion of the real property itself' (Aas, 64 Cal.AppAth at 925). 6. Seely v. White Motor Company, 63 Cal.2d 9,403 P.2d 145,45 Cal.Rptr. 17 (1965).
3 1999] AAS/PROVENCAL v. SUP. CT. OF SAN DIEGO COUNTY 3 produced housing) can only be held strictly liable for physical injuries caused by defects, not for economic losses associated with failure to meet expectations. 7 It is noteworthy that Seely involved the purchase of a commercial truck, while the subject involves residential housing, a product not generally purchased for economic purposes unique to the buyer, who would not properly be considered a "merchant" under the Uniform Commercial Code. Seely ostensibly involved potential liability for the plaintiff's ordinary business risk, while the economic expectations for residential housing are appropriately measured against the market, a much less subjective standard and a critical distinction between Seely and Aas/Provencal. 8 Another interesting aspect of the Seely case is the application of the economic loss doctrine to actions in negligence, since negligence was not even an issue in the case. Seely rejected in dicta direct and indirect economic losses based on strict liability, but stated that strict liability should apply to physical damage to plaintiff s property, holding that "physical injury to property is so akin to personal injury that there is no reason to distinguish them," 9 but impliedly creating a distinction between physical damage and economic losses. Despite the dictum extension of the economic loss doctrine to negligence actions, the AaslProvencal opinion properly notes that California courts have nonetheless applied Seely's limitation on a manufacturer's liability to negligence actions. In Sacramento Regional Transit District, 10 for example, the cost to repair broken fuel tank supports in municipal buses was considered an economic loss, not recoverable in a tort action for negligence against a manufacturer, although Sacramento Regional Transit District again points out the application of the Uniform Commercial Code to commercial transactions, which are arguably different from the ordinary purchase of consumer products, including residential housing. 11 In applying the Seely "economic loss doctrine," a number of real estate-related cases are discussed in Aas/Provencal, most involving damages for negligence related to defective construction. 7. A separate opinion by Justice Peters in Seely concurred with the judgment, but dissented with respect to the rationale used. Justice Peters specifically took issue with the contention that economic losses to a plaintiff injured by a defective product would be compensable, while economic losses sustained under similar circumstances absent personal injury could not be recovered. 8. In his dissent, Justice Peters distinguished between strict liability and implied warranty of fitness for a particular purpose, recognizing that strict liability should reasonably apply to products purchased by "ordinary consumers," which need conform only to what the product is ordinarily expected to do, rather than to their suitability for a particular business purpose. 9. Seely v. White Motor Company, 63 Cal.2d at 19, 403 P.2d at Sacramento Regional Transit District v. Grumman Flexible, 158 Cal.App.3d 289, 204 Cal.Rptr. 736 (1984). 11. This distinction is also apparent in the extension of strict liability, a consumer remedy separate and apart from commercial remedies under the UCC, to real estate.
4 4 SAN FRANCISCO LAW REVIEW [Vol. 8 Sabella involved an allegation of negligence due to improperly compacted soil beneath a dwelling, resulting in settlement and extensive damage to a single-family home when a sewer pipe broke. Both the trial and appellate courts ruled in favor of the homeowner, specifically distinguishing between standards applied to building contractors as opposed to "conventional manufacturers of goods." 12 Although prior to the Seely decision, this distinction is critical as it relates to application of the "economic loss doctrine" to construction vs. manufacturing-related defects, and was utilized by the court in distinguishing Stewart, is a case involving recovery for negligent construction of a swimming pool, from Wyatt 14 which involved negligent manufacture of an automobile, where the manufacturer was held exempt from liability. Also referenced in Sabella (but not in Aas/Provencanl) is Bause, 15 another case involving recovery for negligent construction of a swimming pool. The Aas/Provencal court rationalizes Sabella (and Stewart) by separating the defective component (soil) from other property (the house) which suffered "resultant damage," but does not address Bause, which clearly involved only damage to the defective product. In Connor, 16 homeowners in a residential tract sued for defects caused by negligent construction of homes on expansive soil, which resulted in cracked foundations and other "resultant" damage. Although the case was primarily concerned with the liability of a construction lender for negligence, 17 the Supreme Court's decision to impose liability for negligence noted the importance of the home as a "major investment" and "the only shelter" for a, typical buyer." The court believed that it was "doubly important" to protect a homeowner from construction defects "that could prove beyond his capacity to remedy." 19 This decision reaffirmed Sabella, and is particularly significant because it came three years after Seely. As in Sabella, however, the Aas/Provencal opinion distinguishes between the defective soil and resultant damage to the house, also indicating that Connor "did not involve a claim of negligence for recovery of purely economic damages," although distinguishing property damage from economic loss is often difficult, as noted in the decision. 12. Sabella v. Wisler, 59 Cal.2d at 30, 377 P.2d at Stewart v. Cox, 55 Cal.2d 857,362 P.2d 345,13 Cal.Rptr. 521 (1961). 14. Wyatt v. Cadillac Motor Car Division, 145 Cal.App.2d 423, 302 P.2d 665 (1956). 15. Bause v. Anthony Pools, Inc., 205 Cal.App.2d 606,23 Cal.Rptr. 265 (1962) Connor v. Great Western Savings and Loan Association, 69 Cal.2d 850, 447 P.2d 609, 73 Cal.Rptr. 369 (1968). 17. Where the lender was ruled to be an "active participant in a home construction enterprise." 18. Connor v. Great Western Savings and Loan Association, 69 Cal.2d at 867, 447 P.2d at Id.
5 1999] AAS/PROVENCAL v. SUP. CT. OF SAN DIEGO COUNTY 5 The Kriegler 20 case involved 0a defective radiant heating system in a single-family home, which ultimately required replacement of the entire heating system. There was no indication that failure of the heating system resulted in damage to other property, with the court relying on the New Jersey Schipper 21 decision in ruling for the plaintiff homeowner on strict liability, 22 stating in part that certain home construction defects endanger wellbeing, and may result in serious injury, although there was no personal injury in Kriegler. The court noted that "the public interest dictates that if such injury does result from the defective construction, its cost should be borne by the responsible developer who created the danger and who is in the better economic position to bear the loss rather than the injured party who justifiably relied on the developer's skill and implied representation." 23 Cooper 24 involved individual condominium owners, and an action against the architect for negligence in design and construction supervision, resulting in alleged poor workmanship, code violations, and deviation from approved plans and specifications. Although the trial court had entered a judgment of dismissal in favor of the defendant, the Court of Appeal disagreed. The fact distinguishing Cooper from Aas/Provencal was the fact that the issue in Cooper was the malpractice liability of a professional rather than the liability of a manufacturer for a defective product. J'Aire is the only one of the seven cases considered by the court which did not involve an allegation of defective construction. At issue was the negligence of a general contractor for delays in completion of a construction project contracted by the property owner, resulting in economic losses to the tenant. Whether the contractor, who was not in privity with the tenant, owned a duty of care was one issue in the case, giving rise to the "special relationship" concept via application of the six Biakanja factors. The Supreme Court reversed the trial court's judgment of dismissal, reasoning that "where the risk of harm is foreseeable... an injury to the plaintiffs economic interests should not go uncompensated merely because it was unaccompanied by any injury to his person or property." 25 Recoverability, it was noted, also required that damages not be "wholly speculative," "nor the injury part of the plaintiff's ordinary business risk," 26 as was the case in Seely. J'Aire goes furthest in allowing recovery for purely economic loss in a negligence action involving 20. Kriegler v. Eichler Homes, Inc., 269 Cal.App.2d 224,74 Cal.Rptr 749 (1969). 21. Schipper v. Levitt & Sons, Inc., 44 N.J. 70,207 A.2d 314 (1965). 22. A ruling by the trial court in favor of the plaintiff on a negligence cause of action was reversed due to lack of evidence, as the plaintiff did not file an appellate brief; this question is largely moot, however, since Kriegler was able to recover damages in strict liability. 23. Kriegler, 269 Cal.App.2d at Cooper v. Jevne, 56 Cal.App.3d 860,128 Cal.Rptr. 724 (1976) J'Aire, 24 Cal.3d at J'Aiie, 24 Cal.3d at 808.
6 6 SAN FRANCISCO LAW REVIEW [Vol. 8 real property, and while Aas/Provencal emphasizes J'Aire in its analysis of duty, the court distinguishes J Aire from the standpoint of damages because the case did not involve defective construction. In Huang, 27 plaintiffs purchased an apartment building, and subsequently sought recovery against the builder/developer, architect and civil engineer for alleged negligence in design and construction which resulted in extensive structural damage, along with other structural and design defects which had not caused actual physical damage. The trial court ruled against recovery in negligence for purely economic losses, i.e., cost to repair defects which had not yet resulted in actual damage, while allowing recovery for repair of physical damage, which was not considered to be an "economic loss." The Court of Appeal disagreed as to non-recovery of economic losses, citing J'Aire, where the court "allowed recovery of economic loss to extend beyond the area of professional negligence in the rendition of services." 28 The court also put a somewhat different spin on Seely, observing that the Seely court "limited recovery in negligence and strict liability tort actions to damages for personal injuries and to physical damages to plaintiff's property [emphasis added]." 29 Because of its reliance on J'Aire, Aas/Provencal declines to follow the Huang decision, again citing the primary difference between the cases, the fact that J'Aire did not involve an action for construction defects, and is thus inapplicable. Sumitomo Bank 30 involved the acquisition of a condominium project by the secured construction lender at a trustee sale, after the developer defaulted on the loan. The bank subsequently sued the builder for latent defects, including structural retaining walls, drainage, waterproofing, roofing, and cracking of concrete slabs and pavement. On appeal, the court reversed the trial court's judgment of dismissal relative to the negligence cause of action. The decision cited Sabella in noting that "a builder must exercise reasonable care toward those who purchase a housing structure," 31 and Connor, stating that "negligent construction principles rest on a policy determination that purchasers of homes should not be harmed by defective housing caused by the breach of a duty to construct properly." 32 The Aas/Provencal decision factually distinguishes Sumitomo Bank as involving resultant damage, similar to findings in Sabella and Connor, although the facts of the Sumitomo case provide no evidence that the damage was "resultant." 27. Huang v. Garner, 157 Cal.App.3d 404, 203 Cal.Rptr. 800 (1984). 28. Huang, 157 Ca1.App.3d at 422, 203 Cal.Rptr Huang, 157 Ca1.App.3d at 420,203 Cal.Rptr Sumitomo Bank of California v. Taurus Developers, Inc., 185 Ca1.App.3d 211, 229 Cal.Rptr. 719 (1986). 31. Sumitomo Bank of California, 185 Ca1.App.3d at 223, 229 Cal.Rptr Sumitomo Bank of California, 185 Cal.App.3d at 223, 225 Cal.Rptr. 727.
7 1999] AAS/PROVENCAL v. SUP. CT. OF SAN DIEGO COUNTY 7 Application of the Seely economic loss doctrine to tract housing is interesting. Seely involved purchase of a manufactured product for a business purpose, and effectively made the buyer bear the responsibility for his or her ordinary business risk. Residential housing is unquestionably different in several respects, notably in terms of economic expectations which are less unique and more market-driven, and the nature of the construction process itself, which is much less standardized than most manufacturing processes. This distinction was clearly recognized in the pre-seely Sabella case, distinguishing between standards applied to building contractors vs. "conventional manufacturers of goods," The issue was also addressed in the Sacramento Regional Transit District case, which notes that "transactions involving the construction or modification of structures... are generally not governed by the Uniform Commercial Code," and that "judicial creation of a tort remedy for economic loss caused by the negligence of a builder of a structure poses no conflict with the law of sales as set forth in the Uniform Commercial Code." 33 Moreover, Connor recognized the importance of protecting a homeowner's major investment.and primary shelter from construction defects which may be beyond the typical owner's ability to remedy. 34 Also troublesome is the concept of "resultant damage" to other property, which is used to rationalize the Sabella, Connor and Sumitomo Bank decisions in light of the economic loss doctrine. The Seely application of different substantive rules to different kinds of injury requires differentiating among these types of injury, which has led to a preoccupation with "resultant" damage vs. damage to the defective product. If residential housing is considered a product, and has suffered damage, is it reasonable to separate component parts of the product (e.g., soil) for purposes of judging whether or not a plaintiff can recover damages under a negligence theory? This issue was squarely addressed in Fieldstone, 35 which presented the question of whether defective bathroom sinks installed in tract homes merely damaged themselves, or whether specific defects caused damage to other, non-defective portions of the sinks. The Fieldstone court acknowledged that jurisdictions differ as to the availability of tort recovery where the sole physical injury is to the product itself, ultimately following the Seely economic loss doctrine in ruling against recovery for economic damages under a negligence theory Sacramento Regional Transit District, 158 Cal.App.3d at 299, 204 Cal.Rptr Only in Eichler did the court specifically deny a meaningful distinction between the mass production and sale of homes, as opposed to automobiles and/or other consumer products. 35. Fieldstone Company v. Briggs Plumbing Products, Inc., 54 Cal.App.4th 357,62 Cal.Rptr.2d 701 (1997). 36. The concept of resultant damage appears to be a post-seely phenomenon; Seely did not explicitly distinguish between physical damage to the defective product vs. other property, stating instead that strict liability (and by extension, negligence) should apply to physical damage to plaintiff's property.
8 8 SAN FRANCISCO LAW REVIEW [Vol. 8 Differences in the ability to recover from a design professional vs. a developer, builder or contractor presents yet another apparent inconsistency for homeowners seeking damages in negligence for defective construction. The court effectively holds builders to a different standard from architects and engineers, notwithstanding the fact that negligence by any party involved in the construction process can have the same result. In discussing strict liability, the court in Sacramento Regional Transit District cites another case in stating that "the standard of strict liability has been held to apply to a defect in design as well as a defect in manufacture..." 37 The essential question is whether recovery should reasonably depend on whose negligence results in failure of a structure. Distinguishing construction defects from other types of economic losses, as the court did in its analysis of J'Aire, is also questionable. Quoting from the court's opinion in J'Aire, which is based on CIVIL CODE SECTION 1714, is the principle that "every person is responsible for injuries caused by his or her lack of ordinary care... [without distinguishing] among injuries to one's person, one's property or one's financial interests... recovery for injury to one's economic interests, where it is the foreseeable result of another's want of ordinary care, should not be foreclosed simply because it is the only injury that occurs." 38 Recovery of Stigma Damages The Aas/Provencal opinion notes two distinct measures of damages used to compensate for injury to property - diminution in value and cost to repair. 39 In general, the measure of damages for injury to property caused by negligence is the lesser of the two, 40 although courts have noted that the "lesser of rule is not a fixed, inflexible measure of property damage, and "whatever formula is most appropriate to compensate the injured party for the loss sustained... will be adopted." 41 Two cases specifically allowed recovery of repair costs in excess of value diminution, 42 establishing what has become known as the "personal reason exception." Post-remediation "stigma" damage is generally considered to represent the residual loss of market value after completion of repairs, although the court 37. Silverhart v. Mount Zion Hospital, 20 Ca1.App.3d 1022, 98 Cal.Rptr. 187 (1971). 38. J'Aire, 24 Ca1.3d at The cost to repair standard entails the cost of restoring a damaged property to its condition immediately preceding the injury, plus loss of use. It might reasonably be argued that cost of restoration to predamaged condition should include any residual "stigma" or market resistance after completion of physical repairs. 40. Mozzetti v. City of Brisbane, 67 Cal.App.3d 565,136 Cal.Rptr. 751 (1977). 41. Basin Oil Co. v. Baash-Ross Tool Company, 125 Cal.App.2d 578,606 (1954). 42. Heninger v. Dunn,101 Cal.App.3d 858,162 Cal.Rptr.104 (1980); and Omdorff v. Christiana Community Builders, 217 Cal.App.3d 683,266 Cal.Rptr. 193 (1990).
9 1999] AAS/PROVENCAL v. SUP. CT. OF SAN DIEGO COUNTY 9 notes no existing case law authority in California specifically permitting recovery of stigma damage in a case involving damage to real property. Because of a lack of guidance from California courts on this issue, a number of treatises have been written, arguing both for and against recovery of damages for residual stigma. One commentator, addressing the apparent difficulty in recovering stigma damages for construction defects under Mozzetti, suggests modifying the general rule to allow recovery of the lesser of diminution in value or repair costs plus residual depreciation. 43 Another treatise on the subject of stigma in environmental cases characterizes such damages as invariably conjectural and speculative, and argues strongly against recovery of stigma damages, unless stigma actually results in an injury, as in a lower price realized upon subsequent sale. 44 Aas/Provencal affirms the trial court's judgment excluding evidence of post-repair stigma damages, suggesting that such damages are remote and/or speculative. The court takes this position despite citing two out-of-state cases which clearly support the concept of stigma damages, where such damage was corroborated by market evidence. McAlonan 45 involved a condominium project with construction defects, including damage to the foundation. The Colorado Court of Appeals affirmed the trial court's jury instruction relative to damages, noting that "plaintiff is entitled to such damages as necessary to make her whole," 46 and that such damages were properly "measured as cost of repair plus any diminution in market value as repaired." 47 In Anderson 48 negligence actions were brought against a developer and builder by homeowners alleging damage due to water intrusion into basements. The Wyoming Supreme Court held that for dwellings used for the personal purpose of the owner, in addition to repair cost, "diminished value... because of a public awareness of a water problem, is also recoverable." 49 Santa Fe Partnership 50 was a California case addressing the issue of stigma damages in an environmental context, noting that "courts which have entertained such claims appear to suggest stigma damages could be a proper element of damages in cases presenting substantial evidence the property 43. Charles L Stott, Stigma Damages: The Cast for Recovery in Condominium Construction Defect Litigation, 25 CALIFORNIA WESTERN LAW REVIEW 367 (1989). 44. E. Jean Johnson, Environmental Stigma Damages. Speculative Damages in Environmental Tort Cases, 15 UCLA JOURNAL OF ENVIRONMENTAL LAW & POLICY 185 ( ). 45. McAlonan v. U.S. Home Corp., 724 P.2d 78 (Colo.App. 1986) McAlonan, at McAlonan, at 78. Anderson v. Bauer, 681 P.2d 1316 (Wyo. 1984). 49. Anderson, at Santa Fe Partnership v. ARCO Products Company, 46 Ca1.App.4th 967, 54 Cal.Rptr.2d 214 (1996).
10 10 SAN FRANCISCO LAW REVIEW [Vol. 8 suffers permanent physical injury despite remediation efforts." 51 This opinion suggests that recovery of stigma damages may be appropriate where the residual injury is "permanent," although the permanence of stigma or market resistance is often not known until many years after the fact, when claims for such damage would often be time barred. CONCLUSION On the surface, Aas/Provencal has the appearance of a reactionary decision, a response by the court to a plethora of construction defect litigation and recoveries which may not reflect economic damages. Construction litigation is often dominated by the alleged defects, together with repair procedures and associated costs offered by the plaintiff and defendant, with little consideration of whether the plaintiff has suffered economic damage. Damages are often a battle of plaintiff's vs. defendant's repair methodologies and associated costs, with little consideration to the issue of value diminution, which is arguably the best measure of true economic loss. An axiom often cited by real estate appraisers is that cost does not equal market value, and by extension, the same is true for measuring loss in value to real property. Against this backdrop, the court has offered a solution which in most cases would deny plaintiffs a remedy in negligence for construction defects which do not result in personal injury or damage to other than the affected property. In analyzing duty of care, the court notes "that petitioners have suffered latent harm," acknowledging a wrong for which there is no apparent remedy. Pure economic loss under Seely is not recoverable under strict liability or negligence, and not recoverable in implied warranty without privity. The problem, as stated rather eloquently in a commentary on defective products, is that "the rules denying recovery in warranty without privity, and in tort without physical injury, thus leave the average family's largest investment unprotected." 52 The question, it seems, should not be whether an injured party can recover economic losses in negligence, particularly where a defect has resulted in actual physical damage. It is generally the intent of the law to make the plaintiff whole, awarding as a measure of damages "the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not." 53 Rather, the issue is one of proof; proving that a structure "as built" varies from plans and specifications, industry standards, or even building codes, does not necessarily translate into an economic loss. 51. Santa Fe Partnership, at Edward H. Rabin and Jill Herman Grossman, Defective Products or Realty Causing Economic Loss. Toward a Unified Theory of Recovery, 12 SOUTHWESTERN UNIVERSITY LAW REVIEW 5, 21 ( ). 53. CALIFORNIA CIVIL Com, 3333.
11 1999] AAS/PROVENCAL v. SUP. CT. OF SAN DIEGO COUNTY 11 The issue in determining defective construction should be "one of reasonableness rather than perfection. " 54 For real estate, economic losses are measured by the market, not necessarily by cost to repair alleged defects that the market may or may not consider consequential. On the other hand, plaintiffs should not be barred from recovery for economic losses when such losses actually diminish property value. The theory of recovery is probably less important to the average property owner than an assurance that some remedy is reasonably available. Rabin and Grossman argue for recovery of economic losses in warranty rather than tort, recommending changes in statutes of limitations and privity requirements which would make this cause of action more feasible. Either way, justice would seem to dictate that some remedy be available, though it must be incumbent upon the plaintiff to prove economic damages with some degree of certainty. 54. Kriegler, 269 Cal.Appld at 228,74 Cal.Rptr. at 953.
Key Legal Issues In Construction Defect Claims Deborah E. Colaner Crowell & Moring LLP Recent Development: The California Supreme Court has ruled that contractors cannot be held liable in negligence for
IN THE SUPREME COURT OF TEXAS 444444444444 NO. 13-0776 444444444444 CHAPMAN CUSTOM HOMES, INC., AND MICHAEL B. DUNCAN, TRUSTEE OF THE M. B. DUNCAN SEPARATE PROPERTY TRUST, PETITIONERS, v. DALLAS PLUMBING
Filed 8/28/13 Shade v. Freedhand CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
LITIGATION OF PRODUCTS LIABILITY CASES IN EXOTIC FORUMS - PUERTO RICO By Francisco J. Colón-Pagán 1 I. OVERVIEW OF PUERTO RICO LEGAL SYSTEM A. Three branches of government B. Judicial Branch 1. Supreme
[Cite as Jones v. Centex Homes, 132 Ohio St.3d 1, 2012-Ohio-1001.] JONES ET AL., APPELLANTS, v. CENTEX HOMES, APPELLEE. [Cite as Jones v. Centex Homes, 132 Ohio St.3d 1, 2012-Ohio-1001.] A home builder
Filed 8/27/14 Tesser Ruttenberg etc. v. Forever Entertainment CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying
Filed 5/16/13; pub. order 6/12/13 (see end of opn.) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado) ---- STEVE SCHAEFER, Plaintiff and Respondent, C068229 (Super.
SAFETY REVIEW NOT SPECIFIED IN CONTRACT James C. Kozlowski, J.D., Ph.D. 2008 James C. Kozlowski In contracting for personal services, an architect's duty depends on the particular agreement entered into
Filed 10/9/96 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX VENTURA COUNTY NATIONAL BANK, Plaintiff and Appellant, 2d Civil No. B094467
Page 1 29 of 41 DOCUMENTS SAN DIEGO ASSEMBLERS, INC., Plaintiff and Appellant, v. WORK COMP FOR LESS INSURANCE SERVICES, INC., Defendant and Respondent. D062406 COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE
2015 IL App (1st) 141985-U No. 1-14-1985 NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
m a c d o n a l d d e v i n. c o m Construction Conference September 21, 2007 The Economic Loss Rule as a Design Professional s Defense to Owner/Contractor Claims Presented by Greg Ziegler Macdonald Devin,
MEMORANDUM TO: FROM: RE: Tim Cameron, Kim Chamberlain, Chris Killian Securities Industry and Financial Markets Association David R. Carpenter, Collin P. Wedel, Lauren A. McCray Liability of Municipal Members
Filed 10/4/13; pub. order 10/28/13 (see end of opn.) COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA SAN DIEGO ASSEMBLERS, INC., D062406 Plaintiff and Appellant, v. WORK COMP
INVERSE CONDEMNATION I. INTRODUCTION Article I, Section 19 of The California Constitution provides the basis for recovery against government entities and public utilities via the theory of inverse condemnation.
Filed 1/21/15 Century Quality Management v. JMS Air Conditioning etc. CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing
NOTICE: NOT FOR PUBLICATION. UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. IN THE ARIZONA COURT OF APPEALS DIVISION ONE STEPHEN
Owner s Damages for Construction Defects: A Primer 18th Annual Construction Superconference December 12, 2003 San Francisco, California Kenneth I. Levin firstname.lastname@example.org 1 Owner s Damages Generally
MOLESTATION LIABILITY EXAMINES SCOPE OF EMPLOYMENT & FORESEEABILITY James C. Kozlowski, J.D., Ph.D. 1997 James C. Kozlowski In determining agency liability for sexual molestation by its employees, an employer
IN THE SUPREME COURT OF TEXAS 444444444444 NO. 11-0425 444444444444 PETROLEUM SOLUTIONS, INC., PETITIONER, v. BILL HEAD D/B/A BILL HEAD ENTERPRISES AND TITEFLEX CORPORATION, RESPONDENTS 4444444444444444444444444444444444444444444444444444
SECOND DIVISION May 31, 2011 No. 1-10-0602 Notice: This order was filed under Illinois Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under
9-18-01 SUPREME COURT OF LOUISIANA No. 2001-CC-0175 CLECO CORPORATION Versus LEONARD JOHNSON AND LEGION INDEMNITY COMPANY ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF ST. TAMMANY
1. PARTIES TO A PRODUCTS LIABILITY ACTION A. Plaintiffs Individuals, corporations, and other business entities may allege strict product liability tort claims. A strict product liability plaintiff, whether
Comparing and Maximizing Performance Bond and Commercial General Liability Protections Frank L. Pohl, Esq. and James C. Washburn, Esq. Often when acting as the prime on a construction project, the design
Portfolio Media. Inc. 860 Broadway, 6th Floor New York, NY 10003 www.law360.com Phone: +1 646 783 7100 Fax: +1 646 783 7161 email@example.com Alternative Burdens May Come With Alternative Causes
Chapter IV FACULTY LIABILITY I. Overview INTRODUCTION Faculty members are agents of their employers the college or university. In that capacity, the college is liable or responsible for their acts that
February 15, 2016 Professional Practice 544 Tort Law and Insurance Michael J. Hanahan Schiff Hardin LLP 233 S. Wacker, Ste. 6600 Chicago, IL 60606 312-258-5701 firstname.lastname@example.org Schiff Hardin LLP.
Filed 8/12/13 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR PROGRESSIVE CHOICE INSURANCE COMPANY, Plaintiff and Respondent, B242429
Filed 1/9/02; pub. order 1/28/02 (see end of opn.) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE ISRAEL P. CHAMBI, Plaintiff and Appellant, v. THE REGENTS OF
Jack Anderson, Esq. SBN 0 JACK ANDERSON, ESQ., APLC Balboa Avenue, Suite E San Diego, California Tel.: ( - Fax: ( 0- email@example.com Attorney for Defendant and Cross-Complainant Starline Windows,
Filed 10/28/03; opn. following rehearing CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX AMEX ASSURANCE COMPANY, v. Plaintiff and Appellant,
2014 IL App (1st) 123454-U No. 1-12-3454 February 11, 2014 Modified Upon Rehearing April 30, 2014 THIRD DIVISION NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
Rise or Demise of Take-Home Asbestos Exposure Claims? California Supreme Court Set to Weigh In on Debate Jeffrey M. Pypcznski Pamela R. Kaplan For years, practitioners and courts in several jurisdictions
IN THE SUPREME COURT OF THE STATE OF ARIZONA JOHN F. SULLIVAN AND SUSAN B. SULLIVAN, Plaintiffs/Appellants, v. PULTE HOME CORPORATION, Defendant/Appellee. No. CV-12-0419-PR Filed July 31, 2013 Appeal from
5.51 LEGAL MALPRACTICE (Approved 6/79) CHARGE 5.51A Page 1 of 9 A. General Duty Owing An action brought against an attorney alleging negligence in the practice of law is referred to as a malpractice action.
Filed 3/21/97 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE STACY RUTTENBERG, Plaintiff and Appellant, B092022 (Super. Ct. No. LC025584)
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY CHARLES R. LITCHFORD and ) PATRICIA LITCHFORD, ) ) Plaintiffs ) v. ) C.A. No. 06C-02-243MJB ) MICHAEL JOHNSON; DP, INC.; ) DP
Case 1:07-cv-00389-MJW-BNB Document 51 Filed 08/21/2008 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 07-cv-00389-MJW-BNB ERNA GANSER, Plaintiff, v. ROBERT
The Economic Loss Doctrine written and presented by: Thomas M. Regan, Esq. COZEN O CONNOR 501 West Broadway, Suite 1610 San Diego, CA 92101 (619) 234-1700 (800) 782-3366 firstname.lastname@example.org Atlanta Charlotte
Filed 5/19/97 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX CHASE MANHATTAN MORTGAGE CORPORATION, Plaintiff and Respondent, 2d Civil
[Cite as Rogers v. Dayton, 118 Ohio St.3d 299, 2008-Ohio-2336.] ROGERS v. CITY OF DAYTON ET AL., APPELLEES; STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., APPELLANT. [Cite as Rogers v. Dayton, 118 Ohio St.3d
30 South Carolina Lawyer Caveat Venditor South Carolina s Implied Warranties and Tort Liability in Residential Construction By Joshua D. Spencer PHOTOS BY GEORGE FULTON John Taylor decides to build a house
Shareholder Amy Harris joined Macdonald Devin in 1989 and represents clients in state and federal trial and appellate courts, primarily in insurance defense litigation and insurance coverage. She has served
Portfolio Media. Inc. 860 Broadway, 6th Floor New York, NY 10003 www.law360.com Phone: +1 646 783 7100 Fax: +1 646 783 7161 email@example.com Construction Defect Coverage Recap For 1st Quarter
****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal
Tiara Condominium: The Demise of the Economic Loss Rule in Construction Defect Litigation and Impact on the Property Damage Requirement in a General Liability Policy By Heather Howell Wright, Bradley Arant
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 15 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 26th day of February, 2008, are as follows: PER CURIAM: 2007-CC-1091 FREY PLUMBING
Executive summary and overview of the national report for Denmark Section I Summary of findings There is no special legislation concerning damages for breach of EC or national competition law in Denmark,
SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK PRESENT: HON. VICTOR M. ORT Justice GEORGE POLL and WILLIS SEAFOOD RESTAURANT CORP. Plaintiffs -against- EDWARD VALLA, PROFESSIONAL INSURANCE CONSULTANTS,
NOTICE Decision filed 10/15/15. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same. 2015 IL App (5th 140227-U NO. 5-14-0227
Defense of State Employees: LIABILITY AND LAWSUITS UNCW Office of General Counsel January 2010 COMMON CAUSES OF ACTION (or what could we be sued for) Tort claims Contract claims Discrimination/Harassment
NO. 142, September Term, 1994 Chambco, A Division of Chamberlin Waterproofing & Roofing, Inc. v. Urban Masonry Corporation [Involves Maryland Code (1974, 1995 Repl. Vol.), 10-504 Of The Courts And Judicial
2016 IL App (1st) 150810-U Nos. 1-15-0810, 1-15-0942 cons. Fourth Division June 30, 2016 NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in
Filed 5/5/09 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE BERNARD FREEDMAN et al., Plaintiffs and Appellants, B202617 (Super. Ct. No.
The plaintiff in Schmidt filed suit against her employer, Personalized Audio Visual, Inc. ("PAV") and PAV s president, Dennis Smith ("Smith"). 684 A.2d at 68. Her Complaint alleged several causes of action
Illinois Official Reports Appellate Court Certain Underwriters at Lloyd s London v. The Burlington Insurance Co., 2015 IL App (1st) 141408 Appellate Court Caption CERTAIN UNDERWRITERS AT LLOYD S LONDON,
2016 IL App (1st) 133918-U No. 1-13-3918 SIXTH DIVISION May 6, 2016 NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances
IN THE NEBRASKA COURT OF APPEALS MEMORANDUM OPINION AND JUDGMENT ON APPEAL (Memorandum Web Opinion) CITY OF LINCOLN V. DIAL REALTY DEVELOPMENT NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
Unintentional Torts - Definitions Negligence The failure to exercise the degree of care that a reasonable person would exercise that results in the proximate cause of actual harm to an innocent person.
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral
Michael V. Sanders, MAI, SRA Post-Repair Diminution in Value from Geotechnical Problems The focus of this article is to provide a framework for the valuation of properties damaged by geotechnical or related
In the United States Court of Appeals No. 13 2114 For the Seventh Circuit BLYTHE HOLDINGS, INCORPORATED, et al., Plaintiffs Appellants, v. JOHN A. DEANGELIS, et al., Defendants Appellees. Appeal from the
Order filed February 15, 2011 NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). IN
Filed 4/11/13 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA BATTAGLIA ENTERPRISES, INC., D063076 Petitioner, v. SUPERIOR COURT OF SAN DIEGO COUNTY,
Portfolio Media, Inc. 648 Broadway, Suite 200 New York, NY 10012 www.law360.com Phone: +1 212 537 6331 Fax: +1 212 537 6371 firstname.lastname@example.org Asbestos Liability Unlikely For Replacement
VACHON LAW FIRM Michael R. Vachon, Esq. (SBN ) 0 Via Del Campo, Suite San Diego, California Tel.: () -0 Fax: () - Attorney for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA LOS ANGELES COUNTY CENTRAL
MEMORANDUM From: Mitchell S. Cohen, Esquire Re: Decisions Governing the Issue of Secondary Exposure Asbestos Cases in the Commonwealth of Pennsylvania and States of New Jersey and New York Date: 11 November
EMPLOYMENT LAW Surviving the Special Employment Doctrine by Ian Fusselman Most of us understand that, with few exceptions, you can t directly sue a client s employer for a work-related injury because Workers
COMMONWEALTH OF MASSACHUSETTS APPELLATE DIVISION OF THE DISTRICT COURT DEPARTMENT NORTHERN DISTRICT FRANK FODERA, SR. V. ARBELLA PROTECTION INSURANCE COMPANY NO. 15-ADMS-10012 In the WOBURN DIVISION: Justice:
April, 2003 No. 3 Toxic and Hazardous Substances Litigation In This Issue Quentin F. Urquhart, Jr. is a founding partner of Irwin Fritchie Urquhart & Moore a New Orleans, Louisiana firm that is focused
NOTICE Decision filed 01/23/14. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same. 2014 IL App (5th) 120588-U NO. 5-12-0588
Filed 8/8/14 Opn filed after rehearing CERTIFIED FOR PARTIAL PUBLICATION * IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE MICHAEL M. MOJTAHEDI, Plaintiff and
Construction Defect Claims In Colorado Current Issues Involving Construction Defects Session I.C. Damage Liability - The Extent of Liability For Construction Defects January 24, 2003 Presented By Robert
SUPREME COURT OF MISSOURI en banc KENNETH SUNDERMEYER, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE FOR ELVA ELIZABETH SUNDERMEYER, DECEASED, Appellant, v. SC89318 SSM REGIONAL HEALTH SERVICES D/B/A VILLA
Filed 10/26/00 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE MARINA EMERGENCY MEDICAL GROUP et al., Petitioners, No. B142473 (Super.
No. 89-261 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, -vs- Plaintiff and Respondent, THE ESTATE OF GARY NELSON BRAUN, Deceased, and CHESTER V. BRAUN,
Filed 12/1/98 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR BRADLEY JOHNSON, Plaintiff and Appellant, B115029 (Super. Ct. No. MC001725)
2014 UT App 258 THE UTAH COURT OF APPEALS TOTAL RESTORATION, INC., Plaintiff and Appellee, v. VERNON MERRITT AND SANDRA MERRITT, Defendants and Appellants. Opinion No. 20120785-CA Filed October 30, 2014
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2004-CA-01391-COA PEGGY HUDSON FISHER APPELLANT v. WILLIAM DEER, GANNETT MS CORP. AND GANNETT RIVER STATES PUBLISHING CORP. D/B/A THE HATTIESBURG
California Senate Bill 474 Impact on Owners & Contractors Beginning January 1, 2013, project owners, general contractors ( GC ), construction managers ( CM ) and any lower tier contractor who employs subcontractors
Rolling the Dice: Insurer s Bad Faith Failure to Settle within Limits By: Attorney Jeffrey J Vita and Attorney Bethany DiMarzio Clearly the obligation to accept a good-faith settlement within the policy
Product Liability Risks for Distributors: The Basics Susan E. Burnett Bowman and Brooke LLP Whereas.... State laws vary widely and change frequently, Every case is different, I'm not your lawyer.. Disclaimer:
Introduction The RAJI (CIVIL) 5th Product Liability Instructions refer only to manufacturers and sellers. These instructions should be expanded when appropriate to include others in the business of placing
Filed 2/21/14 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR KB HOME GREATER LOS ANGELES, INC., Petitioner, B246769 (Los Angeles County