Experience Archive

In a highly publicized medical practice case, stemming from a 2009 hospitalization of an 89-year-old at St. John's Health Center, a jury of 12 reached a unanimous verdict on behalf of the hospital, finding no negligence.  In the original complaint, filed in 2010, causes of action were also brought for elder abuse and general negligence. After years of litigation, the matter proceeded to a two-week trial in the West District Superior Court located in Santa Monica.

On July 24, 2014, the Colorado Court of Appeals ruled in the matter of Minturn v. Definitive Renovations, upholding the trial court’s entry of Summary Judgment in favor of Wood, Smith, Henning & Berman’s client, Definitive Renovations.

This case expands the scope of design professionals' liability under California common law. The Supreme Court of California has held that, where a design professional plays a primary role in the design and construction of a project, a design professional may be held liable to ultimate purchasers even if the professionals lack privity with those third parties. A homebuyer or third party may now bring claims against such a principal design professional for negligence under common law tort theories and potentially for violations of the construction standards set forth in SB 800. On a larger scale, businesses should take note that the Supreme Court's action in this matter is representative of the growing trend in California to sideline privity as a requirement in negligence based actions.

A Ventura County jury returned a defense verdict in a nuisance and trespass case with multiple theories of liability which were fueling a whopping $8.9 million settlement demand.  WSHB trial lawyer Kevin Smith reported the jury took little time to return the defense award in this three week trial.

In a case involving the death of a construction worker by a 30,000 pound forklift in the Maricopa County Superior Court, a 10-person jury returned a defense verdict after deliberating only two hours. WSHB attorney led a legal team representing the forklift driver and his employer, in a 10-day wrongful death trial which was completed to verdict on June 24, 2014.

Contractors and their counsel should take note of these two decisions, as they will affect the duration of contractors' exposure to construction defect claims under Oregon's statute of repose. In the absence of written acceptance, the ten year limitations period of Oregon Revised Statute ("ORS") 12.135 begins to run on the date on which the contractee accepts construction as "fully complete" as opposed to accepting the construction as "sufficiently complete for its intended use or occupancy."

In response to Colorado's lack of new owner-occupied, multi-family housing (i.e. condominiums) being built, it appears legislation will be introduced that, if passed into law, may affect not only how condominiums are developed, but may affect the entire landscape of construction defect litigation.

Following a two week trial, a Santa Monica jury returned a nearly unanimous defense verdict in a closely-watched products liability case involving complex claims of design defect and failure to warn, resulting in bodily injuries, economic damages, and claims for severe emotional distress before the Honorable Bobbi Tillmon. Wood, Smith, Henning & Berman LLP represented the lone remaining defendant in the case at the time of trial, Urban Motion, Inc.

On February 11, 2014, the California Court of Appeal issued its decision in Prakashpalan v. Engstrom, Lipscomb and Lack, holding that two homeowners could sue their former attorneys for alleged mishandling of funds received from settlement of claims involving the 1994 earthquake. Significantly, the court held that despite the fact the alleged fraudulent conduct by the law firm occurred 16 years earlier, the statute of limitations does not bar late-discovered fraud claims.

On February 19, 2014, the California Court of Appeal, Second Appellate District, Division Three issued its opinion in Burch v. Superior Court, supporting the much criticized decision of the Fourth Appellate District, Division Three (Orange County) in the case of Liberty Mutual Insurance Co. v. Brookfield Crystal Cove, LLC (2013) 219 Cal.App.4th 98, holding that the Right to Repair Act (California Civil Code § 895 et seq.) is not the exclusive remedy and does not limit or preclude common law claims for damages for construction defects that have caused property damage.

The most recent session of Colorado's general Assembly began on January 8, 2014. This is a highlight of the bills that have been introduced so far which we thought would be of interest to our construction clients

The Ninth Circuit Court of Appeals vacated a $9.3 million asbestos verdict, holding that the US District Court for the Western District of Washington erred in admitting expert testimony without undergoing a Daubert hearing and without making the necessary findings of relevancy and reliability under Federal Rule of Evidence 702.  It also held that a reviewing court can properly make findings related to expert testimony admissibility if it "decides the record is sufficient to determine whether expert testimony is relevant and reliable…"

On January 30, 2014, the Colorado Court of Appeals issued its decision in Taylor Morrison of Colorado, Inc. f/k/a Morrison Homes of Colorado, Inc. v. Bemas Construction, Inc. and Terracon Consultants, Inc.  The key issue in this opinion was whether the limitation of liability clause in the contract between Morrison Homes and Terracon was unenforceable pursuant to Colorado's Homeowner Protection Act of 2007 (the "HPA").  

On December 11, 2013, the Supreme Court of California denied the closely watched Petition for Review in Liberty Mutual Insurance Company v. Brookfield Crystal Cove LLC as well as the Requests for Depublication of the lower court's decision

In the largest SB 800 jury trial to go to verdict in California, Wood, Smith, Henning & Berman LLP obtained a resounding victory against 21 plaintiff homeowners in a closely watched construction defect dispute.  In the Boyd v Western Pacific Housing case, involving 21 single family homes located in Riverside County, WSHB trial lawyers Keith Smith and Gregory Amundson represented homebuilder Western Pacific Housing dba D.R. Horton America's Builder and secured a verdict that represents less than 14% of the cost to repair requested by plaintiffs at the close of trial.  The plaintiff homeowners were represented by Barry Vaughan, Esq. of the firm of Kasdan, Simonds, Weber & Vaughan.

When a planned residential development is created, the owners' association is governed by a Declaration of Conditions, Covenants and Restrictions ("CC&Rs").  Very often, the developer who creates the CC&RS will include an alternative dispute resolution procedure in the CC&Rs so that if the owners' association has claims against the developer, for example a construction defect claim, the owners' association has to follow a specific procedure, such as mediating the claim first, or file the claim in a specific forum, such as arbitration. 

This case further expands the independent duty doctrine in the professional liability context. The Supreme Court of Washington increased the scope of remedies available to plaintiffs in claims against design professionals finding that a tort duty arises independently of any contractual duties.

After nearly two years of litigation and a 2½ week jury trial, a San Diego jury returned a 12-0 defense verdict in a habitability case involving claims of mold, vermin infestation and building defects. J. Paul Lewis with the law firm of Wood Smith Henning & Berman LLP represented the defendant.

On August 28, 2013, the California Court of Appeal, Fourth Appellate District, Division Three, filed its opinion in the matter of Liberty Mutual Insurance Company v. Brookfield Crystal Cove LLC.  A focus of intense controversy over the interpretation of Senate Bill 800, this appeal concerns the breadth of California’s “Right to Repair” Act. 

The United States Supreme Court has issued two rulings in separate cases which have resulted in higher standards for the maintenance of employment lawsuits.

On August 19, 2013, a jury in Modesto California returned a unanimous defense verdict after deliberating for only 25 minutes in a lawsuit filed under the Federal Employers Liability Act of 1908 ("FELA"), a statute enacted to protect railroad workers. The defense verdict was the second victory for defense team Kevin D. Smith with the law firm of Wood Smith Henning & Berman regarding the claims alleged by plaintiff, Brian Horton. Previously, Plaintiff had filed a claim with the Occupational Safety and Health Administration alleging wrongful termination, which was denied.

The Colorado Supreme Court has ruled that Colorado's premises liability statute is not, as a matter of law, restricted solely to activities and circumstances that are directly or inherently related to the land. Rather, the premises liability statute may extend to any conditions, activities, and circumstances on the property for which the landowner is liable in its legal capacity as a landowner, thereby requiring a fact-specific, case-by-case inquiry in all premises liability matters.

In this decision, the Second District Court of Appeal concluded the trial court abused its discretion by admitting into evidence a "class A" citation and a statement of deficiencies issued by the Department of Public Health (DPH).

This case sets the precedent that when a plaintiff has made two unaccepted and unrevoked statutory 998 offers to compromise, and the defendant fails to obtain a judgment more favorable than either offer, the trial court retains discretion to order payment of costs incurred from the earliest date of the 998 offers.

California Court of Appeal upheld and enforced standard AIA contract language effectively shortening to four years the ten year statute of limitations for bringing claims for latent construction defects.  The Court held that a waiver of the delayed discovery rule and shortening of the statute of limitation is permitted where there are two sophisticated parties in a commercial context that occupied equal bargaining positions.

In the latest missive in the battle to define the scope of the duty to defend and the duty to indemnify a construction professional in the construction defect context, the United States District Court ruled on March 31, 2013 in favor of the construction professional.  The facts of the case are outlined below.

The Washington State Supreme Court underscores in this matter that the duty of work site safety lies in the hands of the entity in the best position to keep a work site safe, regardless of whether an employer-employee relationship exists.  The Court extended these duties beyond the context of a general contractor controlling a job site to the scenario of the Port of Seattle("Port") controlling worker safety in the highly complex multi-employer work site of Sea-TacAirport.   However, job site owners and licensors may take some comfort in the Court’s assurances that the holding is intended to be narrow and not to apply to every situation in which an owner or licensor simply asks on-site workers to comply with safety rules. 

Colorado has been abuzz with several recent decisions regarding additional insured obligations.  These are just a few of the orders that are getting a lot of attention lately.  The TCD case in particular evidences the ongoing tension between the courts and the legislature with regard to insurance policies.  The courts are continuing to marginalize the 2010 law that was passed in Colorado regarding interpretation of commercial general liability policies.  As these decisions evidence, there remain many unresolved in Colorado related to additional insured obligations.  We expect much more from the courts, and possibly even the legislature, on these issues.

Each year at this time we prepare an update for our clients and colleagues, summarizing the trends in mold personal injury litigation from the past twelve months. This year, although the number of reported verdicts throughout the country appeared to decline, the news, case results and appellate decisions which did occur favored plaintiffs. One possible explanation is that Plaintiff's attorneys rarely solicit these claims anymore. As a result, only the "good" cases get filed and reported.

In a closely watched employment case, the California Supreme Court unanimously ruled that employees are not entitled to damages when discrimination factors into a termination if the termination would have occurred regardless of the discrimination.

In the Ahdout case, the Second District, Division Four, of the California Court of Appeal held that the plaintiff's claims under California Business & Professions Code § 7031 against a general contractor for lack of licensure fell within the "public policy" exception to the general prohibition of judicial review of arbitration awards, because "section 7031 constitutes a clear-cut and explicit legislative expression of public policy mandating the disgorgement of compensation received by an unlicensed contractor."  

Despite the passage of Proposition 30, California courts continue to operate under substantial fiscal constraints.  As a result, Los Angeles County Court officials have announced sweeping cuts in the judicial system.  Significant changes in the Los Angeles County judicial system are planned to be implemented over the next six months.  The impact of these cuts is expected to be considerable and will surely affect case management in a variety of ways.

In a contentious professional liability jury trial venued in Orange County Superior Court, the Honorable David R. Chaffee entered judgment in favor of defendants at close of plaintiff's case. The jury trial lasted nearly a week and included complex facts and legal issues related to the conduct of an insurance broker engaging in solicitation and management of insurance for his clients.

SB 1186 reduces statutory damages and provides litigation protections for Defendants who timely correct construction‐related accessibility violations of the Unruh Civil Rights Act. The new reform bans the practice of "demand for money" letters, deters Plaintiffs from forcing quick settlements by stacking claims based on alleged repeat violations, and provides incentives for businesses to comply with ADA law. 

In a case where a tribal corporation sought to disgorge profits from an unlicensed contractor, California's Fourth District Court of Appeal affirmed summary judgment and rejected the contractor's efforts to assert reverse sovereign immunity as well as its efforts to utilize the active license of its related corporation.

On December 13, 2012, the California Court of Appeal, First District, Division 5, filed its opinion in the matter of Beacon Residential Community Association v. Skidmore, Owings & Merrill, LLP.  The case involves whether a design professional owes a duty to a homeowners' association and its future residents in the design of a residential project.  The lower court initially sustained a demurrer by design professional Skidmore, Owings & Merrill, LLP, to the homeowner's association's Third Amended Complaint on the basis that a design professional owes no duty of care to the homeowner's association or its members under common law or Senate Bill 800.  The trial court found that a homeowner's association may not base a claim against a design professional on negligent design but rather must show the design professional had "control" in the construction process.  The Court of Appeal disagreed and reversed, holding that a design professional does owe a duty of care to the third party purchasers of condos.

On October 9, 2011, California Governor Jerry Brown signed Senate Bill 474 into law, which significantly impacts commercial and public construction contracts in California.  SB 474 amended California Civil Code Sections 2782 and 2783 and, most notably, added Section 2782.05 to the California Civil Code.

Following the Arizona Supreme Court's ruling in Richards v Powercraft permitting subsequent purchasers to pursue implied warranty claims even in the absence of privity, Arizona courts have had a difficult time determining whether to categorize this creature of public policy as a tort or a contract claim.  

For years, plaintiffs and defendants have battled over the standards for admission of expert witness opinions in California courts. Defendants frequently argue that the opinions of plaintiffs' experts on issues ranging from damages to causation are speculative and lack an evidentiary foundation. Plantiffs respond that California trial judges do not play the same role as federal district judges, who are directed under the Daubert standard to act as gatekeepers, weighing the evidentiary basis of expert opinions before they are admitted in Court.

Last week, the California Court of Appeals handed down a huge victory for home builders.  In a case of first impression, the court affirmed the clear legislative intent and purpose of SB 800: providing a builder notice and the right to repair prior to a homeowner initiating construction defect litigation.

In legal malpractice cases governed by California Code Civ. Proc., § 340.6, actual injuries accrue – and the one year statute of limitations is not tolled – because plaintiffs' loss or diminution of a right or remedy is an "actual injury", caused in this case by an attorney's failure to timely recover a judgment.

In a landmark decision for the building and construction industry, the California Supreme Court handed down this morning a closely watched decision which addresses the hot issue of enforcement of arbitration clauses.  We are pleased for our developer clients who brought this appeal and proud of the impact this decision has for the entire building and construction industry.  Wood Smith Henning & Berman represented Pinnacle Market Development (US) LLC, Pinnacle International (US) LLC and Pinnacle Market Development (Canada), Ltd., in this litigation since its inception, initiating the underlying Motions to Compel Arbitration, drafted and argued the matter before the Court of Appeal, and assisted in the petition and substantive briefing as well as the oral argument before the California Supreme Court.

In a contentious personal injury jury trial in Orange County Superior  Court, a 12 person jury returned a verdict for a defendant shopping center owner and property manager in a personal injury action filed by Robin Agers, an employee of the Regency Movie Theater in Laguna Niguel that was struck by a vehicle driven by a movie theater patron and out-of-state driver, who settled out of the lawsuit before the trial began. Plaintiff was represented by Chris Purcell of Santa Ana. Defendants were represented by Greg Amundson of Wood Smith Henning & Berman's Newport Beach office.

In a landmark decision for the building and construction industry, the California Supreme Court handed down this morning a closely watched decision which addresses the hot issue of enforcement of arbitration clauses.

Every year at this time, we review developments in mold litigation from the past twelve months, with an emphasis on personal injury claims. A decade ago we saw widespread media interest in "toxic" mold and an uptick in lawsuits. That was followed by a series of defense victories in the courtroom, largely built on scientific studies which properly framed the nature and extent of injuries and illnesses which could result from mold exposure. The number of mold personal injury cases declined, but they never went away and in the last several years we have seen a number of multi-million verdicts and settlements, contrary to our own expectations that mold personal injury cases were a dying trend.

On February 2, 2012, the Colorado Court of Appeals answered two previously unanswered questions under Colorado's Construction Defect Action Reform Act ("CDARA"): 1) whether notice of construction defects to one party under the statute tolls the running of the statute of limitations as to parties not included in the notice; and 2) whether the statute of repose (i.e. the outside time limit for bringing a construction defect claim) begins to run on a multi-phase construction project at substantial completion of the entire project, or as discrete improvements /components are completed. 

The California Court of Appeal, Second District, held that based upon the exception found within CCP § 340.6(a)(1), the statute of limitations for a legal malpractice action is tolled until an actual injury is suffered.  The Court concluded that the determination of actual injury is a fact specific analysis.  The Court in this instance held that the actual injury sustained did not occur when a partnership agreement was negligently drafted, but rather when the effect of such negligence was realized in the dissolution of a client's partnership due to a lawyer's failure to include provisions dealing with succession in the event of incapacitation.  

In the matter of Alfred Albano, et al. v. Shea Homes Limited Partnership, et al., the Arizona Supreme Court recently held that American Pipe and Construction Co. v. Utah, 414 U.S. 538 (1974), class action tolling does not apply to Arizona's Statute of Repose, Arizona Revised Statutes § 12-552.  The case was handled by Wood, Smith, Henning & Berman's Arizona office.  

Chinese drywall was first introduced to the United States in 2000 or early 2001. The use of this material increased markedly between 2004 and 2006 as the result of a shortage of domestically produced drywall. Nearly 60 percent of Chinese drywall imported during this time frame came in through Florida ports.

A new mass tort faces America's residential builders, their underwriters and others with an interest in the construction industry: Personal injury claims resulting from chronic exposure to the alleged off-gassing of sulfur compounds from imported Chinese drywall. This issue has now been the subject of numerous features on network television and articles in newspapers.