From Contra Costa Times- Lawsuits Filed By Victims and Families of Berkeley Deck Collapse

Prior complaints by tenants about mushrooms growing out of balcony allegedly ignored.

Reporter Thomas Peele's (@Thomas_Peele) latest article on the Berkeley deck tragedy reports that the families and victims of the deck collapse have filed a lawsuit alleging some of the defendants named in the suit knew of problems with the deck after it was built and the building occupied. Other defendants allegedly "deliberately ignored" the plans for the deck.

"BERKELEY -- Tenants of a Berkeley apartment had complained to building managers for weeks that mushrooms were growing on a wooden balcony before it collapsed during a party in July, plummeting six people to their deaths, lawsuits filed Thursday allege.

But their complaints were ignored, survivors and families of the victims claim in a negligence lawsuit that alleges the building owners and construction company could have prevented the tragedy."

Read the whole article here- http://www.contracostatimes.com/breaking-news/ci_29110468/berkeley-tenants-reported-signs-rot-weeks-before-deadly

The allegations, if proved true, would leave many of the named parties at risk of being exposed to millions of dollars in liability costs.

I'll say it once again, decks must be built using best building practices and with the highest degree of skill and materials available, not the most cost effective, cheapest materials and labor. If successful, this lawsuit may just change the way builders hire sub-contractors-today the cheapest wins, the most responsible skilled contractor loses. It's time for a change.

From Contra Costa Times-As Berkeley begins balcony inspections, records suggest safety problems are common in region

Photo by Contra Costa Times Photographer  Karl Mondon
shows two balconies falling off a building in San Francisco.
The sliding doors are not blocked to prevent access, a
dangerous condition.

An investigative report on Berkeley's new deck inspection ordinance by Matthia Gafni, David Early Sr & Thomas Peele shows that other Bay area cities with inspection requirements reveals the difficulty in forcing building owners to repair their buildings. Gafni interviewed me on my opinions and expertise on the subject. 

"A rotting deck railing at a San Francisco house suddenly snaps during a birthday party, and three people fall onto concrete below, suffering serious injuries. Posts tenuously prop up the collapsing balcony of four San Jose apartments that city inspectors may soon order vacated, fearing an imminent collapse.

In Concord, inspectors find balconies at an apartment complex badly rotted and order immediate repairs, citing danger to residents.

These details -- gathered from inspection records reviewed by the Bay Area News Group -- suggest just how common the types of problems are that doomed a Berkeley balcony and killed six young adults last month."

My personal professional opinion is landlords and property management companies have decided to not fix decks until someone dies. Read my opinions in the article here at this link. http://www.contracostatimes.com/ci_28538504/berkeley-begins-balcony-inspections-records-suggest-safety-problems

Signs Your Deck Needs To Be Inspected

We have had a lot of traffic recently to our site from people who are concerned about their decks. We want to assure you that your waterproofed deck probably isn't going to collapse, but many wood decks do collapse on a near everyday basis in the US. How can you check your waterproof solid surface deck to see if it has any warning signs of danger?

Do use our photograph's to check your deck for signs of problems and dangerous conditions. If you find these conditions, you'll want to have a deck inspector review your deck and give you a report with a basic scope of work to use to obtain bids with. Don't let a deck waterproofing contractor write his scope of work, they may be complete and truthful or they may be adding extra work and profits on.

Even if your deck is in no danger of collapse, water getting under the surface of a waterproof deck can cause damage to framing and the plywood substrate.

1.) Therefore, cracks on a deck are a warning sign. Look at your deck carefully in the field of the deck. Many times plywood moving will cause a deck to crack.

Urethane deck with seam tape showing through coating.
We recommend a professional inspection and evaluation. 

Long cracks in the field of the deck
should be inspected and repaired. 

Some decks crack because of moving plywood. This deck's
coating cracked because of plywood not being level. 

Cracks at the edge of a deck may indicate a more serious issue underneath.
Further evaluation is recommended.

2.) Rusted metal flashings on deck edges or at deck to wall areas. Rusted areas in field of deck. Rusted railing bases.

Rusted railing bases have lost their strength and now may present a hazard
as they won't be able to retrain you from falling. An inspection and fast repairs
need to be done in many cases to maintain safety. 

Any type of plant growth around a railing bases indicates moisture
conditions underneath. 

Rust on the metal flashing like this is a sign that further inspection
should be done and a scope of work written.

3.) Ponding Water. After a rain storm, your waterproof deck should be dry within 24 hours to at most 48 hours. Water should not ever pond longer than that. An inspection of the problem areas can help you determine what work can and needs to be done to correct a ponding water issue.

Ponds in the middle of a walkway always create problems.

Water sitting at the wall can attack exposed sheet metal causing rust and leaks.

Water sitting on an edge indicates a high edge. 

Watch for future articles discussing drains and scuppers.

Architects, General Contractors & Pest Control Technicians Have Little Understanding of Waterproofing, Why Does Berkeley Want Them to Inspect Decks Then?

On June 24th I wrote a detailed letter to the City of Berkeley's Building Department, City Manager and City Solicitor regarding their memorandum of proposed changes to the Cities Building Codes.

They want to implement various changes related to the construction of and methods of waterproofing balconies, along with requiring inspections of decks and balconies on apartment complexes and condominiums, While their proposed changes are well intentioned, some of them are a little crazy in my opinion.

My biggest objection is having Architects, General Contractors and Pest Control Technicians inspecting decks...why do I say that?

Read my letter and leave a comment telling me what you think!

June 24, 2015

City of Berkeley

Mr. Eric Angstadt, Christine Daniel, Zach Cowan

Building & Safety Department

2120 Milvia Street

Berkeley CA 94704

Dear Mr. Angstadt, Ms Daniel and Mr Cowan,

Let me first say that I am deeply sorry and anguished over the tragedy that occurred last week with the deaths and injuries to thirteen people. I cannot fathom the sorrow that the bereaved parents and families must be experiencing.

My background includes six years as an estimator/sales person for several large deck waterproofing companies doing business in the San Diego/LA/Orange County/Ventura/San Luis Obispo areas, as well as being a CSLB licensed (currently inactive) waterproofing contractor for seven years. I am now a consultant and perform deck inspections for real estate transactions and for HOA's. I have sold and installed hundreds of thousands of square feet of deck systems in my career.

I have been one of the experts used by several media sources for comments and opinions on the causes of the deck failure. As owner of DeckExpert.com I promote the use of Pedestrian Traffic Coatings at our website of the same name for use on balconies, stairs, roof decks and walkways. Pedestrian Traffic Coatings are walkable waterproof membranes typically used on decks, stairs and balconies covered with plywood decking and these are also listed and evaluated as roof assemblies for low slope roofs. These membranes are listed in ICC-ES' website under Division Seven Thermal and Moisture protection under 07 18 13.

I would like to take a few moments of your time to lay out my recommendations that the City of Berkeley should consider implementing to avoid another tragedy in the future. I understand that there are several recommendations already in the works, and I would hope you will consider incorporating my recommendations as well.

As you know already, the deck that failed appeared to have a Grace 3000 bituthene membrane as it's waterproofing, covered with a topping slab of concrete. Basically this is the same as a plaza deck, found over below grade parking structures with the living units built using wood framed construction. These plaza type decks must be carefully assembled as once covered with a topping slab, the waterproofing is impossible to inspect or repair without removal of the topping slab. Plaza decks must have a subsurface drain system in place to deal with water that is bound to get under the topping slab.

Plaza decks in my opinion and experience have had many problems with their assemblies in the past, due to the technical skill necessary and the usual lack of skilled labor who understands how to assemble them. I believe that these types of assemblies should be banned from use on top of wood framed and plywood covered decks.

1. In lieu of plaza deck assemblies, I would instead propose that the City of Berkeley consider implementing a requirement that only pedestrian traffic coatings be used on plywood covered decks. The main reason for this is that pedestrian traffic coatings are “an all in one” solution to waterproofing these decks while providing a walkable surface at the same time. They can be easily inspected and are relatively easy to repair if damaged. Most Division Seven Pedestrian Traffic Coatings are also Class A roof rated systems (ASTM E-108) and many are also rated as One Hour assemblies (ASTM E-119), therefore meeting the Cities fire resistant requirements. Many of these systems can be finished in any number of ways with texture and pigmented sealer as well as stained/stamped etc to look like tile, stone, wood etc. There are several different system types available, leaving architects and specifiers choices among concrete based coatings, liquid applied coating, slip sheet systems and sheet goods. Concrete and many of these coatings can also be used to correct deficient slope conditions, so achieving a 1/4” slope per foot is very easy to do on flat decks that were not framed with slope in them.
2. In regards to the Berkeley Building Code changes proposed, I concur with the recommendation to require Ventilation of weather exposed enclosed assemblies under Section 1203.6. Most of our manufacturer's already require this in their general requirements in their CSI specifications. I also concur with the inclusion of access panels on the underside for inspection of the framing.
3. In regards to adding Section 1404.13 Projections exposed to weather, after consideration, I concur with using pressure treated wood or steel for framing the deck. I do believe that properly waterproofed, conventional douglas fir framing is perfectly suitable for the framing, however, rot resistant materials will certainly perform better if exposed to water over a longer period of time.
4. Under Section 2304.11.4.2 Wood structural members, I propose that the City eliminate the use of moisture permeable floors or roofs such as concrete or masonry slabs. My reasoning is that these types of assemblies trap water in them and as they are typically part of a plaza type deck system, are not conducive to using them on balconies covered in plywood anyway.
5. Regarding adding Section 601.4 Structural Maintenance; I concur with requiring inspections. I have several changes to propose; these being requiring inspections every two years instead of the proposed five year interval. In my experience as a waterproofing contractor and consultant, five years is to long between inspections. A lot of serious damage can occur in a short time. Manufacturer's of Pedestrian Traffic Coatings require as part of their warranty that their systems be inspected yearly. Regarding who should inspect the decks-waterproofing is a specialty trade. In my work as an educator, I usually have a room full of people where 90% or more are general contractors. General contractors are just that, generalists. I've found in my experience that most do not understand waterproofing in general and decks in particular. While structural pest control licensees know the signs of dry-rot, wood destroying organism infestations etc, they do not understand waterproofing either. Engineers and architects are generally familiar with waterproofing concepts and can certainly recognize inherent defects and issues with contiguous building materials and would be suitable candidates to perform inspections. I believe the best candidates to perform deck waterproofing inspections are waterproofing consultants. As a group, we are very familiar with installing and maintaining waterproofed decks and balconies. It may sound self-serving and I appreciate anyone thinking that it is, however, as an example, I've spent nearly 14 years as an estimator and owner and applicator of a firm specializing in waterproof deck installations. I've found that many of my peers were applicators and as we “age” out of being able to work on our hands and knees we seem to transition into consulting and inspecting. The Roof Consultants Institute (RCI) and Sealant Waterproofing Roofing Institute (SWRI) are two organizations that are focused on roofs, decks and waterproofing systems and are probably best qualified to do such inspections. We have familiarity with general building requirements and understand the importance of contiguous building materials needing to be weather resistant as well.
6. I would suggest that the City add the following requirements for deck waterproofing; these being that building inspectors begin inspecting the waterproofing of the decks as it's being installed, including inspecting the flashing system and substrate prior to covering with a membrane. Most importantly, inspectors should verify that the deck is sloped or tag the deck so that it will be sloped and they can check the slope before signing off and allowing finish coats to be installed. Once the membrane is installed, but before it is decoratively finished, it be inspected again. As part of the requirements, the City should allow only ICC-ES pedestrian traffic coatings with Class A ratings minimum and One Hour where already required. The ICC-ES report should be made part of the submittal for building permit approvals.
7. Regarding substrate-the use of Oriented Strand Board (OSB) for pedestrian traffic coatings is not accepted by ICC-ES nor any manufacturer. All fire testing is performed using plywood only. OSB, in my experience, despite the claims by manufacturer's that it's better at water resistance, is a sponge. I've seen OSB expand and it doesn't return to it's original dimensions. Therefore, OSB should be banned for use on decks and plywood be the only acceptable substrate allowed. I would caution against requiring pressure treated plywood, mechanical fasteners used on some systems may not be compatible and liquid applied coatings may have issues as well with compatibility.
8. Regarding railings-steel/aluminum railings that mount onto the deck should be banned. In my experience I've found that it is impossible to guarantee a waterproof deck won't leak when railings penetrate the waterproofing. Only metal railings that mount to the fascia should be allowed. Wood 4x4 posts penetrating through the plywood and bolted to the deck framing can be flashed and waterproofed. The key in waterproofing these wood posts is that they MUST be wrapped with bituthene/Tyvek/building paper and then either boxed in for a final finish or a post sleeve, typically made of plastic/synthetic materials is slipped over and finished on top with a decorative “hip roof” style cap to shed water.

As a general note, it is contained within the CBC 1998 code 1402.2 that openings in exterior walls are required to be flashed in such a manner as to make the opening weatherproof. For waterproofing purposes on decks, metal flashings, be they galvanized steel, copper or stainless steel, are meant for the purpose of terminating our coatings to. All deck waterproofing systems must be run up the vertical leg of the flashing so that contiguous building materials are installed down over the flashing, forming a weather resistant barrier. Counter-flashings, be they Z bar or weep screed for stucco provide the mechanism for water to be shed off and away from the buildings interior.

Furthermore, as a general note, building inspectors and the building department must ensure that proper weather resistant barriers meant to waterproof the decks, the building and the foundation are specified and installed properly. These systems are just as, if not more important to long term comfort, use and enjoyment of the building than framing, mechanical and electrical systems. Inspectors should be required to closely inspect all weather resistant barriers, including siding, windows, doors, foundation waterproofing and the decks and roofs to ensure they meet or exceed code requirements.

I sincerely appreciate your concern in wanting to strengthen and improve building codes and requirements for the safety and security of occupants. I hope these recommendations will be considered and implemented. I am willing and able to appear in front of any panel, council meeting or with the building departments staff to discuss these recommendations. Please let me know if you would like me to appear to testify/discuss.

Sincerely,

William Leys  

New San Francisco Chronicle Article Reports Witnesses Say Balcony That Failed in Berkeley Had "Unusual Slope"

Award winning reporter Jason Van Derbeken in his latest article reporting on the Berkeley deck tragedy reports-

"Attorneys representing the family of a Berkeley balcony collapse victim have contacted prosecutors to alert them to witness accounts that the deck had a “seemingly unusual slope” before it gave way during a party."

Decks are required to have a minimum of 2 percent slope to them do water will drain of and away from the building. If the deck pitches much more than 3 or 4 percent, anyone standing on the deck will feel like they are being pitched forward and will have to make adjustments to their posture, but will remain uncomfortable. Imagine walking down a steep hill; it's not comfortable and you make adjustments in your gait and posture.

The same feeling will occur on a deck with a high degree of slope on it. To me this indicates a warning sign of problems in the deck. It wouldn't necessarily indicate that the deck was ready to fall, but I would, if I was inspecting a balcony with that condition, raise a red flag.

Read the Chronicles article here http://m.sfgate.com/crime/article/Berkeley-balcony-had-unusual-slope-before-6353451.php

San Francisco Chronicle & Los Angeles Times Utilize Our Expertise in Understanding the Berkeley Deck Failure

No one wants to see a headline like this, with 6 dead & 7 others seriously injured.
Both the LA Times & San Francisco Chronicle have used us as a source
on their investigative articles. 

DeckExpert.com provides consumers with information, videos articles and more for buyers to make informed decisions on deck systems. We also provide articles to major trade magazines for the HOA, Construction and Architectural industries. 

Now we are pleased to say our expertise is helping reporters understand the problems that caused the recent Berkeley deck tragedy where the a waterproofed balcony, only 7 years old, failed catastrophically and thirteen people plunged to the ground, killing six and seriously injuring the other seven survivors.

Both the the Los Angeles Times and the San Francisco Chronicle have interviewed us for their investigative articles into the how and why this tragedy occurred.

From the Chronicle  article-“This is all a vicious combination,” Leys said. “The penetrations, the drainage and lack of ventilation underneath — they all combined in a catastrophic failure.”
Read the SF Chronicle article by award winning reporter Jaxon Van Derberken here  http://www.sfgate.com/bayarea/article/Blueprints-show-Berkeley-balcony-was-designed-for-6336566.php

From the LA Times article- "Balconies just don't fall off a building like what we saw without having a few years of deterioration," said Bill Leys, a former deck waterproofing contractor who now inspects decks in San Luis Obispo for his company, DeckExpert.com.

Read the LA Times articles here. http://www.latimes.com/local/california/la-me-berkeley-balcony-collapse-20150623-story.html

Deadly Berkeley Balcony Collapse - Poor Design, Poor Workmanship in Installation

The six people that died and seven who were seriously injured in the balcony collapse on an apartment building on Kittridge St in Berkeley CA never should have died or been injured. That's my opinion, based on the information and documents I've received and photograph's I've reviewed.

Eventually a jury or a mediator will award the dead and injured money to compensate them. Who will pay and how much they will pay will be the only question.

Broken off joists from dryrot due to water intrusion.
Decks must be pre-sloped, then waterproofed. 

From what my review and discussions with other experts have come up with, the wood cantilevered deck was framed out flat, despite the plans calling for a 2% slope on it. After being built, it was waterproofed using Grace 3000 bithuthene membrane, a peel and stick waterproofing sheet good.

Grace 3000 waterproofing system on horizontal surfaces
requires the use of a sub-surface drainage membrane under the concrete
overburden to allow water to escape unimpeded. 

Waterproofing detail for deck shows Grace 3000 bituthene membrane
but the drawing FAILS to include Grace Hydroduct 660 Drainage Membrane.
We presume water WILL get under concrete overburden and will need a way
 to drain sub-surface water out

After being waterproofed, it appears that sloping materials in the form of concrete backer board type materials were placed on top, then screwed down through the waterproofing membrane. Grace advertises that their membrane is "self healing" but also advises that any penetrations be patched. Near impossible to do in this type of situation. But someone probably thought hey it's self sealing so no problem screwing through it.

Apparently no further waterproofing over the sloped materials was done.

Then a concrete deck was poured over this assembly. Water will leak through concrete. It's permeable unless it's waterproofed. Stucco was applied as the finish under the balcony. One design flaw with the stucco was that no vents were installed on the underside of the deck.

Clearly there are no vent strips on the underside of the stucco covered deck. 

My theory is that water got through the concrete and in at the door area. The fasteners used to screw the concrete board down allowed water to penetrate to the waterproofing membrane. As screws rusted, they provided a channel for water to penetrate into the deck substrate and framing. Now with the wood wet, dryrot could begin.

This pic clearly shows the joists of the deck in a rotted condition.

Now I want to be clear, the design of the waterproofing appears to have been a problem too. I've reviewed details of the waterproofing assembly and the architect appears to have left out on critical piece of the system assembly-subsurface drainage. 

The Grace 3000, like nearly every Grace waterproofing product, requires a drain board assembly to be placed on top of the waterproofing membrane over a pre-sloped substrate. Without the ability to drain water out, concrete will hold the water against the waterproofing membrane, allowing it to sit, especially on a flat deck. The Grace system, if properly designed and assembled, should have worked for years and years without issue. 

So a flat deck, with waterproofing on it without slope, allows water to sit on it under the concrete overburden. Theoretically this deck as it began to deteriorate. My question then becomes, were the decks at the property ever inspected by the management company or a building evaluation specialist? My reason for asking is I would think that some signs of distress may have been present and noticeable to an expert. I say this because experts inspected the other decks on this property and determined several were dangerous and were red-tagged. Therefore it's reasonable to assume this deck, had it been inspected, could have been found to be dangerous before this tragedy happened. 

The lawyers will figure it out, the insurance company will pay out and we as a industry in building and protecting occupants, must become better at our trades, in both design and assembly. Someone has to own their work and take pride in it and do it right. 

We can't afford cheap construction.  

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Leaking decks and other moisture intrusion problems leads to suit

Kasdan Simonds Weber & Vaughan LLP | Twenty Five San Clemente Homeowners File Construction Defect Lawsuit Against Pardee Homes

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South Carolina Supreme Court Decision Might Leave Builders without coverage...

Here's a case from the supreme court of South Carolina...Crossmann v. Harleysville: Bad Decision For Builders In SC | Contractor Insurance And Risk Management Blog

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From the State Bar of Wisconsin - Application of economic waste rule does not require evidence of diminished value

Saw this on my Google alerts...interesting take on "Construction Defects"


By Joe Forward, Legal Writer, State Bar of Wisconsin


The economic waste doctrine will prevent a party from obtaining a windfall for construction defects. But an appeals court recently clarified that evidence of a property's diminished value as a result of the defect is not necessary in the damages equation.

Dec. 30, 2010 – In determining whether a defendant must fully replace a construction defect or simply repair it, application of the economic waste rule does not require the defendant to present evidence of the property’s diminished value.
Champion Companies of Wisconsin Inc. sold bricks to Stafford Development LLC, which Ricky Zanow owned. Glen-Gery Corp. manufactured the bricks. Stafford Development used the bricks to build Zanow’s home. Turns out, the bricks had cosmetic defects.
Zanow sued Glen-Gery seeking $344,000 in damages to replace every brick. Glen-Gery argued that repairing the bricks was the proper remedy, and repairs would cost less than $7,500. Neither party offered credible evidence as to the diminished value of the property.

READ THE REST OF THIS ARTICLE BY CLICKING HERE

National Business Institute Presents Construction Defect Seminar

Saw this seminar on my Google alerts...legal professionals in the Mid-West may want to consider attending...

CLICK HERE TO GO TO THEIR WEBSITE
Construction Defect Litigation: From A to Z $329.00


$319 Each Additional

Date: Wednesday, March 09, 2011
Time: 9:00 am-4:30 pm
Location: Sheraton West Des Moines Hotel
1800 50th Street
West Des Moines, IA
Facility Phone: 515-223-1800
Product ID#: 55048ER


Program Description



Discover the Key Elements That Can Make or Break a Construction Defect Case

The field of construction defect litigation is growing and changing at a rapid pace. Get updates on new rulings and laws from experienced professionals in the field, and walk through the profoundly complex and often emotionally-charged construction defect dispute – from defining a defect, determining liability, uncovering insurance nuances and taking your case to trial. Register today!

•Stay in-the-know on the quickly changing legislation, new rulings and reinterpretations of construction defect laws.
•Argue your case with confidence: Know the nuances of the regulations that define and govern construction defects.
•Combine your intimate understanding of defect regulations with building code and construction plan analysis to determine standards of care, one of the keys to winning your case.
•Protect your client's legal and financial interests by understanding the obligations behind equitable and contractual indemnification.
•Become familiar with plaintiff and defense perspectives on the legal responsibilities of all parties involved in construction.
•Learn how to effectively manage liability risk by knowing insurance coverage variations and limitations.
•Discover how to lower liability risks with easy-to-administer tips from a professional in the field.
•Examine how OCIP and CCIP can be valuable insurance options in today's construction lawsuit environment.
•Grab the competitive advantage during defect disputes by knowing what the opposing side typically argues.
•Discover what pretrial preparation will pave the way for a successful verdict.

Who Should Attend

This intermediate level program will provide a comprehensive overview of construction defects, regulations, liability and litigation for:
•Attorneys
•Contractors
•Subcontractors
•Developers
•Engineers
•Architects
•Insurance Claims Managers

Course Content

I.Anatomy of a Defect: What it is and the Rules That Apply
II.Indemnity Provisions: Is the Subcontractor Responsible? What About the Design Professional?
III.Case Law Updates: Rulings That Affect Your World
IV.Insurance: Covered vs. Uncovered?
V.Litigation: Allegations, Defenses and Proving Your Case
VI.Ethical Considerations

Continuing Education Credits:
Continuing Legal Education – CLE: 6.00
International Association for Continuing Education Training – IACET: 0.60

* denotes specialty credits
Learn More – View Credit Detail

Agenda / Content Covered:

ANATOMY OF A DEFECT: WHAT IT IS AND THE RULES THAT APPLY
9:00 - 10:00, Stephen R. Eckley
•What Constitutes a “Defect?”
(Includes: Construction Defect vs. Nuisance Claim, Defect Categories, Common Types of Patent and Latent Defects) •Federal, State, and Local Regulations Regarding Construction Defects

(Includes: Building Codes and Standards, Warranties and Magnuson-Moss, Miller Act, “Right to Repair/Right to Cure” Law, Statute of Limitations and Repose, Assignment of Claims, State and Local Regulations) •Determining Standards of Care INDEMNITY PROVISIONS: IS THE SUBCONTRACTOR RESPONSIBLE? WHAT ABOUT THE DESIGN PROFESSIONAL?

10:15 - 11:15, Robert L. Johnson

•Key Contract and Subcontract Provisions, Including AIA and Consensus DOCS •The Difference Between "Defend," "Hold Harmless" and "Indemnity" •The Role of "Additional Insured" •Common Law Indemnity •Economic Loss Rule •Waiver, Variation and Estoppel •Standards of Care for Design Professionals •Joint and Several Liability CASE LAW UPDATES: RULINGS THAT AFFECT YOUR WORLD

11:15 - 12:00, Stephen R. Eckley

INSURANCE: COVERED VS. UNCOVERED?

1:00 - 2:15, Thomas P. Murphy

•Commercial General Liability Insurance – Coverage Issues •Duties of Defense •Indemnity •Insurance Debates

(Includes: Fortuity Principles, Known Loss, Occurrence Definitions, Four Corners Rule, Contra Proferentem Rule, Rule of Reasonable Expectations, Illusory Coverage Doctrine) •Surety Bonds •Wrap Insurance Options: OCIP or CCIP •Case Law: Class Action Suits LITIGATION: ALLEGATIONS, DEFENSES, AND PROVING YOUR CASE

2:30 - 3:30, Robert L. Johnson

•Common Allegations and Defenses •Notice of Claim •Discovery •Jury Instructions •Essential Evidence: Preservation and Extrapolation •Expert Depositions •Procedural Issues •Damages: What can be Recovered? •Alternative Dispute Resolution ETHICAL CONSIDERATIONS

3:30 - 4:30, Thomas P. Murphy

•Joint Defenses •Conflict of Interest •Representing Multiple Parties •How Lawyers can Avoid Being Witnesses



STEPHEN R. ECKLEY is an attorney with Belin McCormick, P.C. Mr. Eckley has more than 25 years’ experience as a litigator. His specialty is civil trial practice. Mr. Eckley has first-chaired dozens of civil jury trials and has won favorable verdicts for plaintiffs and defendants in a wide variety of cases involving business torts, breach of contract, personal injury, general negligence, professional negligence, property damage, construction defects, products liability, insurance coverage, indemnity, breach of fiduciary duty, misrepresentation, and fraud. In addition to trying cases, he has a strong background in mediation, arbitration, complex civil litigation, and appellate work. Mr. Eckley has served as national litigation counsel for a manufacturer of cleaning products. He enjoys advising clients with respect to the avoidance of litigation as much as helping clients who find themselves in litigation. Mr. Eckley is a member of the American Board of Trial Advocates. He currently serves as vice president of the 1200-member Polk County Bar Association and has previously served as president of numerous civic organizations. Mr. Eckley earned his B.A. degree, summa cum laude, from Drake University and his J.D. degree from Harvard University.

ROBERT L. JOHNSON is an attorney with Finley, Alt, Smith Scharnberg, Craig, Hilmes & Gaffney, P.C., where his main areas of practice are civil trial, legal malpractice, and construction and design law. Prior to joining the firm in 2007, Mr. Johnson was with the firm Wingert, Grebing, Brubaker & Goodwin, LLP in Las Vegas, Nevada and San Diego, California. He was a member of the University of San Diego Law Review. Mr. Johnson's primary practice area is professional negligence, including the defense of attorneys, architects and engineers. He is a member of the Iowa State and Polk County bar associations. Mr. Johnson earned his B.A. degree from the University of Iowa and his J.D. degree from the University of San Diego.

THOMAS P. MURPHY is an attorney with Hopkins & Huebner, P.C., where his main areas of practice are insurance and litigation. Mr. Murphy is a member of the Polk County, Iowa State and American bar associations. He is admitted to practice before the U.S. District Court for the Northern and Southern districts of Iowa. Mr. Murphy earned his B.A. degree from Marquette University and his J.D. degree, with honors, from Drake University.


Please refer to Continuing Education Credit FAQ for general information about seeking credit for your participation in one of our continuing education programs.

Additionally, our team of credit specialists are here to answer your specific credit-related questions weekdays 7am – 5pm Central:

Phone: 866-240-1890

Email: credit@nbi-sems.com

ACCREDITATION DETAILS:
Continuing Legal Education
IA CLE: 6.00

"Construction Defect Litigation: From A to Z" is an accredited program under the regulations of the Iowa Supreme Court Commission on Continuing Legal Education. It is planned that this program will provide a maximum of 6.0 hours of regular credit toward the mandatory continuing legal education requirements under the Iowa rule, including 1.0 hour of ethics credit.

International Association for Continuing Education Training
 IACET: 0.60

NBI, Inc. has been approved as an Authorized Provider by the International Association for Continuing Education and Training (IACET), 8405 Greensboro Drive, Suite 800, McLean, VA 22102. NBI, Inc. DBA National Business Institute has awarded 0.6 CEUs to participants who successfully complete this program. (Provider #4558)







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Del Webb Sued For Lack of Weep Screed on 1400 Home In Nevada

A developer in Nevada is being sued by 1400 homeowners at a development where it was found that weep screed, a flashing termination for stucco to weep water out over as it evacuates a wall, was never installed.

Weep screed costs me about $2.60 for a 10 foot piece...plus a little labor to install them. Little mistake costs big time to fix after wards! Tsk tsk

Nevada's Largest Construction Defect Lawsuit

Chris Saldaña, Reporter

The largest construction defect lawsuit in the State of Nevada is pitting hundreds of homeowners against a well-known developer.

Residents of Sun City Summerlin are suing the neighborhood's developer -- Del Webb -- claiming it failed to install metal strips that protect a home's foundation against water damage.

It is this community in Summerlin where frustration and concern among homeowners is common. They say a small 5-inch piece of metal called a "weepscreed" was not put in place by Del Webb when these homes were built.

Weepscreeds help keep moisture out of dry wall paneling. And now more than 1,400 homeowners have filed a lawsuit. 

READ THE REST BY CLICKING HERE

Re-Blog From Construction Law Signal-Pennsylvania Supreme Court Declares Insurance Defense Costs May Not Be Reimbursable

Pennsylvania Supreme Court Declares Insurance Defense Costs May Not Be Reimbursable

Posted by Elise M. Carlin on December 02, 2010 

Jonathan A. Cass, senior counsel with Cohen Seglias contributed to this post.

Your company is sued as a result of an alleged constructive defect. You tender the claim to your insurance company and they hire and pay for a lawyer to defend your company. It is later determined that there is no insurance coverage for the construction defect claim. Can the insurance company force your company to reimburse it for all the costs that it spent in defending the action? The answer depends on the language contained in your insurance policy.

Recently, the Pennsylvania Supreme Court determined that an insurer who assumes an insured’s defense is forbidden from seeking reimbursement of defense costs from the insured unless the policy specifically permits it to do so.

READ AL OF THIS ARTICLE BY CLICKING HERE

Re-Blog From The INSURANCE COVERAGE MONITOR-Unexpected Faulty Workmanship is Covered

 Saw  this intersting article on Insurance Coverage Monitor

Unexpected Faulty Workmanship is Covered

Unexpected Faulty Workmanship is Covered

by Jill Berkeley on November 10, 2010

In Sheehan Construction Co. v. Continental Insurance Co., ___ N.E. 2d ___ (Ind. 2010), the Indiana Supreme Court joined those jurisdictions that have found faulty workmanship can be an accident so long as the resulting damage is an event that occurs without expectation or foresight.  The Court recognized that whether an event occurs with a “lack of intentionality” depends on the facts of each case.  It also noted that the CGL insurers, as of 1986, carved out from the “your work exclusion” an exception for work done by subcontractors.  If the initial grant of coverage for accidents did not cover faulty workmanship, there would be no reason for the “your work exclusion.”The facts in this case were typical.  Plaintiffs filed a class action alleging that after experiencing water leaks in their homes, they experienced leaking windows, fungus growth on the siding, decayed OSB sheathing, deteriorating and decaying floor joists, and water damage to the interior of the home including water stained carpeting.  Sheehan Construction Company was the general contractor on the project and was responsible for hiring subcontractors who actually built the houses.  The plaintiffs alleged that these problems were caused by the faulty workmanship of Sheehan’s subcontractors which included lack of adequate flashing and quality caulking around the windows, lack of a weather resistant barrier behind the brick veneer to protect the wood components of the wall, improperly installed roofing shingles, improperly flashed or sealed openings for the chimney and vents, and inadequate ventilation in the crawl space.

READ THE WHOLE ARTICLE BY CLICKING HERE

 

Poor Basement Waterproofing Work Leads to Lawsuit in VA

Lawsuit Over Townhome's Construction

Posted: Nov 22, 2010 7:39 PM PST

Reporter: Mark Kelly l Videographer: Sally Delta Goin

Lynchburg, VA - The owner of a Lynchburg townhome says part of his home was designed poorly - rain has flooded the basement 16 times in three years. Now, he's suing the developers, the builders, and the homeowners association at Sterling Park.

Monday, a judge allowed the case to move forward.

Michael Bowers says the outside of the house just wasn't built right. He's an engineer and he collected a binder of evidence he says proves it.

Bowers' basement looks beautiful now. But, Bowers says what is now meticulous was once moldy.

"I had to rip up the carpet up to here and this entire room was moldy," said Bowers.

He redid the basement with water durable materials, making the moldy new again. But the transformation wasn't cheap. He sank another $7,000 into a $12,000 finished off basement. He says someone built his townhome wrong.

"When all the water around here drains, it floods right to my back door, goes in right through the brick or under the house, so it causes this whole drainage or flooding problem," said Bowers.

But he says the players - developers, builders, the homeowners' association-- are all passing the buck.

"You contact one and they go, 'Well, you really need to contact the developer,' said Bowers. READ THE REST BY CLICKING THIS LINK

Seminar on Construction Defect Litigation Scheduled for Jan 12, 2011

Saw this on my Google Alerts...

The Brave New World of Construction Defect Litigation:
A View from the Neutral Corner
Sponsored by Veritext, JAMS & KPA

January 12, 2011 | 1:30 p.m. - 5:00 p.m.Featured California Neutrals:

• Barry Vaughn, Esq. (Moderator)
• George Calkins II, Esq.
• Hon. Jonathan Cannon (Ret.)
• Ross Hart, Esq.
• Hon. Peter Norell (Ret.)
• Hon. Stephen Sundvold (Ret.)

Westin South Coast Plaza
686 Anton Blvd.
Costa Mesa, CA 92626

Approved for 3 hours of MCLE credit
For more information or to register, call 858.692.1438
Download Flyer

From The Denver Post-Deck collapse/water intrusion issues lead to suit, Denver condo-complex HOA wins judgment for defects.

The 40 Madison Homeowners Association in Cherry Creek has been awarded a $4 million judgment in Denver District Court to pay for construction defects at the 27-unit condominium complex.
The judgment, which will be paid by Madison Garden LLC, J&N Management and Len Goldberg, addresses construction defects involving water damage that resulted from improperly installed windows, roofs, decks and stucco. Several of the decks collapsed because of water intrusion and structural problems.
The homeowners association was represented by Chris Rhody of the McKenzie, Rhody & Hearn law firm.


Read more: Denver condo-complex HOA wins judgment for defects. - The Denver Post http://www.denverpost.com/business/ci_16643300#ixzz15z8G9fVD

Re-Blog From the Chico Tribune/Inman News-Discovery rule could apply in contractor-error case

Saw this on The Chicago Tribune pages today...


Discovery rule could apply in contractor-error case

By Benny L. Kass, Inman News

November 12, 2010

Q. We built a vacation home in 1989. We recently discovered that the contractor made some serious errors in construction. Evidently, he used poor flashing and waterproofing techniques. We hired another contractor recently to assess the situation. The result was that we had to tear down and rebuild a significant part of the home at great cost.
We contacted the original contractor, who has told us that he has no liability and that the statute of limitations will prevent us from recovering any of our costs from him. Our insurance company says that because the damage was due to contractor error and is long-term damage, it has no responsibility either.
Is the original contractor correct in that he is protected from any action we might take against him? Any other suggestions you might have would be much appreciated. If I have no way to recover some of the cost from the contractor or the insurance company, do you know if I can at least claim this as a casualty loss when I file my tax returns this year?

READ THE ANSWER BY CLICKING HERE

Re-Blogged From The Critical Path-Resolving Construction Defect Cases: Are Arbitration Provisions in CC&R's Enforceable?

Saw this blog post by Ron White of Ron White Mediation...passing it on for our readers edification...

Resolving Construction Defect Cases: Are Arbitration Provisions in CC&R's Enforceable?

In construction defect cases there is often a dispute within the dispute: should the case be prosecuted in a court of law or proceed under the terms and conditions of an arbitration provision? There are rational reasons for selecting arbitration over a court or jury trial. Many believe that arbitrations are more cost effective than jury trials, for example. However, parties who arbitrate their disputes give up the constitutional right to a jury trial and their appellate rights are generally restricted, among other things.
Real estate developers often prefer arbitration over jury trials for various reasons, not the least of which is the belief that they would fair better in front of an experienced construction law arbitrator than they would in front of 12 jurors who probably have little or no understanding of the construction industry.

READ THE REST OF THIS BLOG BY CLICKING HERE