Tomlinson v. Douglas Knight Constr., Inc., 2017 Utah Lexis 132 (August 29, 2017)

This case arises out of the construction of a residential property.  Lot 84 Deer Crossing (“Lot 84”) purchased the property and contracted with Douglas Knight Construction, Inc. (“DKC”) to build a house on it.  The parties’ contract included a one-year construction warranty.  Lot 84 then assigned to Outpost Development, Inc. (“Outpost”) all of its rights in the property and the construction agreement.  As the home neared completion, Outpost noticed defects in its construction and, pursuant to the warranty, directed DKC to fix the deficiencies.  Despite DKC’s efforts, the defects remained.  Outpost then sold the home to Joseph Tomlinson, but did not assign to Tomlinson its interests in the DKC construction agreement.  Tomlinson subsequently noticed defects in the home and filed suit against Outpost and DKC.
Shortly thereafter, Outpost declared bankruptcy and was dismissed from the case.  During the bankruptcy proceedings, Tomlinson was assigned an interest in any claims that Outpost had asserted or may assert against DKC.  Tomlinson maintained that this assignment encompassed claims for breach of the DKC construction agreement and amended his complaint to include claims for breach of express and implied warranties.  Tomlinson sought to assert these claims as an assignee of rights of parties in privity with DKC: first, through the assignment made when Outpost purchased the property from Lot 84, and second, through the assignment in Outpost’s bankruptcy proceedings.  The district court rejected these theories and dismissed Tomlinson’s claims, holding that they were barred because Tomlinson had never acquired a direct interest in the DKC construction agreement.


Continue Reading In Dismissing Homebuyer’s Defective Construction Suit Against Contractor for Lack of Privity, Supreme Court of Utah Cautions Future Homebuyers to Obtain Express Assignment of All Available Warranties at Time of Acquiring Home

Fogelson v. Bozzone, 2017 N.M. App. LEXIS 58 (July 26, 2017)

In May of 2008, Wallen Development, LLC (“Wallen”) entered into a written agreement to construct and sell a new home to David and Corinne Fogelson (“Fogelson”).  But, after Fogelson paid Wallen in excess of $165,111 under the agreement, Wallen went out of business as a result of financial difficulties.
Fogelson filed an arbitration action against Wallen and ultimately obtained a default judgment after Wallen failed to appear.  Thereafter, Fogelson filed a complaint in court against various individuals affiliated with Wallen.  As relevant here, Fogelson asserted a claim under New Mexico’s Unfair Practices Act, NMSA 1978 §§ 57-12-1 to -26 against one of Wallen’s owners, Mark Bozzone (“Bozzone”).  Bozzone filed a motion to dismiss on the basis that “construction services”, such as those provided by Wallen, do not fall within the scope of the Unfair Practices Act.  The trial court granted Bozzone’s motion.

The major issue on appeal was whether the doctrine of res judicata applied to an arbitration proceeding.  After a very lengthy discussion covering over half of the opinion, the Court of Appeals ruled the res judicata did apply to the arbitration result against Wallen.


Continue Reading Appellate Court Holds That the New Mexico Unfair Practices Act Applies to a “Services” Contract for the Construction of a Home, But Does Not Apply to a “Sales” Contract for the Sale of a Completed Home

Allstate Insurance Company v. Structures Design/Build, LLC, 2016 U.S. Dist. LEXIS 34349 (WD VA March 17, 2016)

This construction dispute case arises from a failed pipe connector that caused water damage to a facility and insured personal property, which Hillel at Virginia Tech, Inc. (“Hillel”) owned in Blacksburg, Virginia. Hillel contracted Structures Design/Build, LLC (“Structures”) to design and construct the facility. Structures, in turn, subcontracted PJ Little Plumbing, Inc. (“PJ”) for plumbing and mechanical installation. PJ purchased the failed pipe connector from CMC Supply, Inc. (“CMC”). Allstate Insurance Company (“Allstate”) insured Hillel for the damage to the facility and the personal property.

As Hillel’s subrogee, Allstate filed a complaint against Structures and PJ. Allstate sued Structures for various state law claims. It sued PJ for negligence and breach of express and implied warranties. PJ filed a third-party complaint to join CMC on a breach of implied warranty theory. PJ and CMC moved to dismiss the claims against them.


Continue Reading Western District of Virginia Confronts Several Legal Issues That Frequently Impact Multi-Party Construction Disputes – Economic Loss, Damage to Other Property, Third Party Beneficiary Status, Warranties, Subrogation, and Third-Party Joinder

Spectro Alloys Corp. v. Fire Brick Eng’rs Co., Inc., 2014 U.S. Dist. LEXIS 140817 (D. Minn. Oct. 3, 2014)

Spectro Alloys Corporation (“Spectro”) operates a smelter, and it hired Fire Brick Engineers (“FBE”) to install refractory lining to two furnaces in Spectro’s plant.  When that refractory lining failed prematurely, Spectro sued FBE for breach of express and implied warranties and for breach of contract.  Spectro sought recovery of repair costs and profits lost while its plant was shut down for repairs.


Continue Reading U.S. District Court in Minnesota Rejects Owner’s Implied Warranty Claims Against Installation Contractor – Also Holds Recovery of Lost Profits Barred By Limitation of Damages Clause

Caddell Construction Co., Inc. v. United States
2007 U.S. Claims LEXIS 285, No. 04-461C, (September 7, 2007)
The United States District Court of Federal Claims held that the design deficiencies alleged by the plaintiff contractor did not rise to the level of a breach of the implied warranty set forth under the Spearin Doctrine.
Plaintiff Caddell Construction Co. (“Plaintiff”) entered into a contract with the Department of Veteran Affairs (the “Government”) to modernize and strengthen the VA Medical center in Memphis, Tennessee. Plaintiff claimed on behalf of its steel fabrication subcontractor, Steel Service Corporation (“SSC”), that the Government provided structural steel drawings that contained conflicts, errors, omissions, and/or inadequate details which resulted in delay and additional costs to SSC.
Continue Reading US Claims Court Explains Limits of Spearin Doctrine – Denies Contractor Recovery Where Testimony Regarding Defective Design Was Conclusory

South Texas Electric Cooperative v. Dresser-Rand Company
2007 U.S. Dist. Lexis 66345 (S.D. Tex. Sept. 7, 2007)
Plaintiff, South Texas Electric Cooperative (“STEC”) contracted with Defendant, Dresser-Rand Company (“Dresser”) for the design and construction of a steam turbine unit. As part of the contract, Dresser was required to provide equipment, materials and field services free from defects in material and workmanship. Moreover, the equipment had to meet certain performance specifications.

Continue Reading US District Court in Texas Denies Summary Judgment to Contractor on Theory That Owner Waived Defect Claim, But Enforces Limitation of Consequential Damages

Eastern Steel Constructors, Inc. v. City of Salem,
No. 28202, 2001 W. Va. LEXIS 3 (W. Va. Feb. 9, 2001)
The City of Salem, West Virginia, entered into a contract with Kanakanui Associates pursuant to which Kanakanui was to provide engineering and architectural services for improvements to Salem’s existing sewer system. Kanakanui produced plans and specifications to be used to solicit bids for the improvements. Eastern Steel Constructors, Inc. bid on a portion of the project relying on the plans provided by Kanakanui and was awarded the contract.
Continue Reading West Virginia Supreme Court Allows Contractor to Sue Engineer for Negligence and Breach of Warranty, but Not as Third-party Beneficiary

Interwest Construction v. A.H. Palmer & Sons,
292 Utah Adv. Rep. 27, 1996 Utah LEXIS 44 (Utah June 14, 1996)
The Supreme Court of Utah held that the intermediate court of appeals erred in holding that a tort action for negligence and strict liability arising out of a breach of contractually defined obligations was precluded. However, the Supreme Court of Utah also held that the tort claims should be dismissed because the claimant failed to prove causation between the alleged defect and the resultant injury.
Continue Reading Utah Supreme Court considers non-contractual liability of contractors for damages resulting from defective work.

Tacoma Athletic Club, Inc. v. Indoor Comfort Systems, Inc.,
79 Wash. App. 250, 902 P.2d 175, 1995 Wash. App. LEXIS 406 (Sept. 14, 1995).
In breach of warranty action brought by owner against contractor, contract to furnish and install a “dehumidification system” was considered to be a “sale of goods” governed by Article 2 of the U.C.C. pursuant to “predominant factor test.” Evidence was insufficient to establish that owner was entitled to be reimbursed entire amount of original contract plus cost to insulate walls as a result of contractor’s breach of warranty related to dehumidification system. 
The Tacoma Athletic Club (“Owner”) hired Indoor Comfort Systems (“Contractor”) to furnish and install a dehumidification system for an indoor pool. The humidity in the pool area was so high that water dripped from the ceilings and down the walls causing damage to the walls. The system provided by the Contractor failed to reduce the humidity in the pool area. After the Contractor attempted unsuccessfully to solve the moisture problem, the Owner eventually hired a new contractor to attempt to fix the problem. The Owner then sued the Contractor for breach of warranty under Article 2 of the Uniform Commercial Code and obtained a favorable judgment.
Continue Reading Washington Appeals Court Holds Contract to Furnish and Install Dehumidification System for Pool Subject to the Uniform Commercial Code

Resurgence Properties., Inc. v. W.E. O’Neil Construction Co., et. al.,
1995 U.S. Dist. LEXIS 11633 (E.D. Ill. August 11, 1995)
Incorporation by Reference – AIA standard form of agreement between owner and contractor, AIA Document A101/CM, incorporated general conditions, AIA Document A201/CM, by reference even though agreement never specifically identified AIA Document A201/CM. Contractor’s warranty to developer also protects Architect as a third-party beneficiary.

Continue Reading District Court in Illinois Holds that Warranties of AIA Doc. A201/CM Incorporated in Owner/Contractor Agreement Written on AIA Doc. A101/CM Even Though Agreement Did Not Expressly Incorporate A201/CM