Denise Motta (Of Counsel-Louisville, KY) and Andrew-John Bokeno (Associate-Louisville, KY) obtained summary judgment and dismissal of Wilson Elser’s client, a roofing and sheet metal company, in an arbitration arising from a construction defect claim. The property owner alleged that our client negligently installed and repaired the roof of three apartment buildings, resulting in leaks and a partial collapse of the parapet wall. The owner further alleged damages exceeding $1.7 million. Denise and AJ argued that the owner's claims were barred by the 5-year statute of limitations and the economic loss doctrine. The arbitrator agreed and dismissed the owner's claims.

Jennafer Groswith (Partner-Dallas) and Stephen Cord (Associate-Dallas) secured a summary judgment win for their roofing client in a multiparty commercial construction defect case. The Plaintiffs alleged that their surgery center and medical buildings were unusable as a result of a myriad of construction defects which included the TPO membrane roof. Plaintiffs claimed the roof on both buildings needed to be replaced and the General Contractor claimed over $1M in damages was owed by their roofing client. They moved for summary judgment based on the complete lack of evidence that their client violated the standard of care or that the roof was causing any damage. At the last minute, opposing counsel filed a motion to continue the hearing to try to buy more time to drum up evidence. The Court correctly denied opposing counsel’s motion to continue and granted their No Evidence Motion for Summary Judgment.

Taylor Allin (Partner-Phoenix) and Nicholas Merritt (Associate-Phoenix) successfully defended their client, a national home improvement store, in an arbitration involving construction defect and breach of contract allegations. The client contractually arranged for a general contractor and a supplier of roofing materials to replace a private homeowner’s roof. During the delivery of materials, the roof was damaged. While waiting for an assessment of repairs, the roof was further damaged by a rainstorm. The house was not repaired and eventually declared a total loss due to exposure to the elements over a long period of time.  

The homeowners' insurer also brought a subrogation action seeking damages for the cost of the entire home for over $400,000. The homeowners sought damages over $1,000,000. The arbitrator agreed with the mitigation-of-damages argument advanced by Taylor and Nicholas, limiting damages to the original incident and the first rainstorm only. Fault was allocated equally between the delivery company and the general contractor. Additionally, Plaintiffs were not awarded attorneys' fees as they were not the prevailing party.
 

Ryan Williams (Partner-Denver), Edward O’Brien (Partner-Louisville), and Gabrielle Lalonde (Associate-Denver) secured an appellate victory in the Colorado Court of Appeals for Wilson Elser’s client, Jim Black Construction. The court affirmed the trial court’s judgment in favor of the client in its lien foreclosure and breach of contract action against a property owner for whom it provided services. The panel rejected the property owner’s challenges to the validity and amount of the mechanic’s lien and upheld the trial court’s findings that the lien was not knowingly excessive. The court also affirmed the contract judgment, concluding that the parties’ proposal and work authorization are to be construed together and that the record supported the scope of work and the charges awarded. This decision allows Jim Black Construction to proceed toward foreclosure and enforcement upon issuance of the mandate, absent any further review.

Nicholas J. Kauffman (Partner-New York, NY) and Jordan Meisner (Of Counsel-New York, NY) obtained the plaintiff’s voluntary discontinuance (with prejudice) of its construction product liability subrogation action that sought damages against our client rubber company of approximately $7 million plus interest after they aggressively filed a post-answer motion to dismiss the plaintiff’s complaint pursuant to CPLR §3211(a)(7) and (8) for lack of personal jurisdiction arising from improper service of process that failed to comply with New York’s BCL §306(b)(1). The plaintiff’s alleged damages arose from a leak in a hot water riser at a New York City hotel that contained our client’s elastomeric expansion joint. Nick and Jordan conducted significant due diligence and investigation and were able to proffer evidence to argue that our client was never served with the complaint. They argued that although the body of the complaint referred to our client, the caption named a non-related entity and the plaintiff could only prove service on that entity via the New York Secretary of State. Jordan’s research was critical as he found a recently decided Second Department case that was directly on point and persuaded the plaintiff that it did not have a good-faith basis to continue its action after our motion was fully briefed and submitted.

Otis Felder (Partner-Los Angeles, CA) obtained a ruling by the United States District Court for the District of Hawai'i in which the Magistrate Judge issued findings and a recommendation to grant Certain Underwriters at Lloyd’s, London, judgment against a construction company, confirming that there is no insurance coverage for claims related to a disputed construction project in Kauai. The ruling stems from allegations by homeowners regarding serious construction deficiencies in their custom retirement home. According to court findings, the insured’s insurance application contained material misrepresentations, failing to disclose known disputes and contractor defaults before the Lloyd’s policy was issued. The court also determined that coverage was barred for multiple independent reasons, including that the claims arose before the policy’s retroactive date; the allegations involved construction activities that were outside the scope of the covered “business activities" as defined by the professional liability policy covering design work; and other policy exclusions applied for workmanship, breach of contract, and known claims. If adopted by the district judge, the ruling will relieve Certain Underwriters at Lloyd’s from any duty to defend or indemnify the insured in connection with the project. The recommendation now moves to the district court for final approval.

Rebecca Young (Partner-Birmingham, AL) and Porter Simpler (Associate-Birmingham, AL) prevailed on a motion to dismiss in the Circuit Court of Benton County, Arkansas, in a construction defect case against Wilson Elser’s construction company client. The plaintiff alleged that a pool constructed by our client in 2018 had structural issues. Rebecca and Porter filed a motion to dismiss, based on the Arkansas five-year Statute of Repose. To avoid dismissal, the plaintiff amended the complaint, alleging the client fraudulently concealed the pool’s structural defects by covering them with concrete, thereby invoking a statutory fraud exception to the five-year time limit. Rebecca and Porter then filed a motion to dismiss the amendment, arguing that the plaintiff’s pleading still failed, as our client’s act of covering the pool's structural issues with concrete did not amount to fraudulent concealment under Arkansas law, which requires the alleged fraud to be "furtively planned and secretly executed." After additional briefing and oral arguments, the court dismissed all claims against the client.

Kammann S. Cole (Partner-San Diego, CA) secured summary judgment on behalf of a construction company in the San Diego Superior Court. The plaintiff sought damages for injuries resulting from a playground swing that was installed by the insured, alleging negligence for violating a statutory requirement forbidding the installation of the at-issue multiple occupancy swing. Kammann was able to get the case summarily dismissed by arguing the completed and accepted doctrine applied to the insured’s work on the playground.

Peter Catalanotti (Partner-San Francisco, CA) and other members of the San Francisco Design Professionals Practice team secured a win on a summary judgment motion in the Northern District of California in a construction defect case. The plaintiffs/homeowners sued our structural engineer client for construction defects related to a $9 million property in Carmel, California. On behalf of our defendant/ engineer client, Peter and his team moved for summary judgment based on the 10-year statute of repose.  The Court found that the plaintiffs failed to meet their burden that the claims against the structural engineer were timely. 

Michael Lowry (Partner-Las Vegas) and Jonathan Pattillo (Associate-Las Vegas) earned a defense decision following a 16-day binding arbitration for Wilson Elser’s client, a landscaping subcontractor. The dispute arose during the construction of a large mobile home park. The general contractor and the owner had a falling out prior to the project's completion, leading to litigation that expanded to include various subcontractors. After the protracted arbitration hearing, the arbitrator agreed with the owner’s assertion that our client breached its subcontract. However, the arbitrator also concurred with Michael and Jonathan’s arguments that no damages were incurred as a result of the breach. This decision resulted in a net win for Wilson Elser’s client.

Rebecca Young (Partner-Birmingham, AL) and Alexander Makarenko (Associate-Birmingham, AL) obtained dismissal of all tort claims brought against Wilson Elser’s construction contractor client in a construction defect case in Alabama Circuit Court, Jefferson County. The plaintiffs’ claims included negligent hiring and supervision and wantonness, invoking punitive damages. Additionally, the plaintiffs sought damages beyond property loss, including consequential damages for loss of income, emotional distress and mental anguish, and the reimbursement of medical costs. Rebecca and Alex filed a motion to dismiss, arguing that the plaintiffs executed a limited warranty agreement waiving all claims against the client except for breach of contract and limiting relief solely to the repair or replacement of latent defects. After briefing and oral arguments, the court concurred that the warranty applied, dismissing all claims outside the limited warranty.

Edward M. O'Brien (Partner-Louisville, KY) and Andrew-John Bokeno (Associate-Louisville, KY) recently succeeded in securing dismissal of claims brought in Kentucky state court after the same claims had been dismissed on summary judgment in Indiana. The plaintiffs sued our client, a roofing system manufacturer, in Jefferson Circuit Court, Kentucky, arguing that the roofing system manufactured by our client was defective and caused damage to their commercial building. Eddie and AJ moved to dismiss the case on various grounds, including that the same claims had previously been litigated in Indiana, which resulted in summary judgment in favor of our client. The court agreed, holding that the claims brought by the plaintiffs "were the same as those brought by their proxy" in Indiana and "those claims were fully adjudicated on the merits" in the Indiana litigation. Accordingly, the court concluded that the claims were barred. The plaintiffs did not appeal the trial court's ruling, ending more than a decade of litigation across two states. The plaintiffs demanded $750,000 to resolve the case prior to dismissal.

Rebecca Young (Partner-Birmingham, AL) and Ericson Enger (Associate-Jackson, MS) obtained dismissal in a multi-party construction defect case. They were able to convince the plaintiffs’ counsel to voluntarily dismiss the claims against our construction company client by obtaining crucial witness statements directly refuting the property owners’ allegations and demonstrated that the construction defect claims against the firm client would likely fail if pursued and could potentially weaken the plaintiffs’ position against the other parties. By taking an aggressive and proactive approach, Rebecca and Ericson were able to get the case resolved at the very early stages to save the client and multiple carriers the extensive time and expense of going forward with complex construction defect discovery, which would have included dozens of depositions, expert discovery and volumes of document production. 

Ryan Williams (Partner-Denver, CO) and Gabrielle Lalonde (Associate-Denver, CO) obtained a defense verdict following a four-day bench trial in Jefferson County, Colorado. The plaintiff, a homeowner, hired our client, a restoration contractor, to repair his home following an electrical fire. The plaintiff claimed our client promised completion by a certain date, which he denied. Upon initiation of repair work, our client discovered numerous latent conditions, including asbestos and structural defects, which greatly complicated the repair plan and required additional engineering and design efforts. As these initial issues approached resolution, the plaintiff elected to make additional changes to the design of the house, which necessitated further design and engineering changes. Following more than two years of effort by our client, the plaintiff fired him, claiming failure to timely complete the work and defects in the work performed to that point. Claims included negligence, breach of contract and fraud. Ryan and Gabrielle asserted claims arising out of the plaintiff's failure to pay for completed work. Following trial, the court entered an order denying all plaintiff’s claims and awarding our client more than 98 percent of the amount of damages sought and attorneys' fees pursuant to the parties' agreement.

Mathew Ross (Partner-White Plains) and Patrick Lawless (Partner-New York) obtained an excellent unanimous decision from the Appellate Division, Second Department on a difficult construction case. Mat tried the case for a large city and its School Construction Authority in the latter part of 2019 and obtained a unanimous jury defense verdict after the plaintiff turned down a sizeable offer to settle the case while the jury was deliberating. The plaintiff appealed the final judgment, which included the earlier denial of his summary judgment motions and motion to reargue that we successfully opposed, as well as the jury verdict. Pat handled the appeal with Mat and argued the appeal. This great teamwork sets forth good case law on the industrial code sections that were identified and upholds the jury’s verdict against a well-known plaintiff’s firm.

Michael Lowry (Partner-Las Vegas) and Jonathan Pattillo (Associate-Las Vegas) achieved summary judgment in the Las Vegas Eighth Judicial District Court on behalf of a Homeowners Association (HOA) in a mixed-use tower. The HOA sued a ground-level commercial tenant in a dispute involving ownership and possession of a particular space. The tenant then counterclaimed against the HOA and Michael and Jonathan were retained to defend against the counterclaim. At the end of discovery, the district court granted summary judgment to the HOA, concluding the tenant lacked the facts required to prove any of its counterclaims. The tenant then agreed to dismiss the counterclaim with prejudice rather than pursue an appeal.

Michael Lowry (Partner-Las Vegas) and Jonathan Pattillo (Associate-Las Vegas) obtained a defense judgment from a Las Vegas court after a bench trial in Las Vegas. The trial involved a retailer that hired a building services vendor that in turn hired a subcontractor to provide HVAC services to Las Vegas properties. The subcontractor performed the services and billed the vendor. The vendor was paid by the retailer, but then did not pay the subcontractor. The vendor's business collapsed, disappeared and was not a party at trial. The trial was about whether the retailer should be forced to pay twice for the subcontractor's work. Under Nevada mechanic's lien law that would be the result, but the subcontractor admittedly never recorded a mechanic's lien. The subcontractor instead argued either the retailer was bound by the vendor's contract or was alternatively unjustly enriched. Weeks after the bench trial, the Eighth Judicial District Court entered judgment for the retailer. It concluded there was no contract binding the retailer to the subcontractor. It also concluded there was no unjust enrichment under these circumstances because the subcontractor's payment rights were restricted under its contract with the vendor.