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CONSTRUCTION DEFECT LITIGATION AND WHY IT HAS

INCREASED DRAMATICALLY IN THE LAST 25 YEARS

A case study by Jerry McCarthyConstruction Consultant

San Mateo, CA

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Why such an increase in construction litigation in the

last 25 years?

Chief reasons:

Untrained workers,

Inept Contractors,

equals

Crappy

Workmanship

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Why so many law suits?

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because

they need to

be fed

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The short list of common toxins found in residential Dwellings:Formaldehyde: off-gasses (evaporates) from cushions, particleboard and the adhesives used to manufacture most inexpensive wood-based products. Carpets and carpet cushions may also offgas formaldehyde, causing eye and upper respiratory irritation. According to the EPA, formaldehyde may even cause cancer;Radon is the second-leading cause of lung cancer in the United States, warns the Surgeon General. Radon is a natural radioactive gas that can seep into homes through cracks in the basement, the surrounding foundation and in well water. It enters the body quietly through the airways;

Lead keeps epidemiologists returning to the drawing board, mostly because we know more now about the adverse effects of low-level exposure. Levels once thought to be acceptable are now known contributors to learning disabilities and behavioral problems. Lead is found in paint in older houses, old plumbing and soil near highways and busy roads. It causes neurological and kidney damage, high blood pressure, disrupted blood cell production and reproductive problems;

Carbon monoxide will kill an estimated 660 Americans this year. Don't look for exhaust fumes in the attached garage; the biggest culprit is the unserviced furnace burning propane, butane or oil; Arsenic is still lacing many household pesticides and is increasingly used as a wood preservative. Low levels of inorganic arsenic "may cause lung cancer risk," according to the CDC.

Vinyl chloride: Is the source of "new car smell": The plastic interior of a new car offgasses this known carcinogen. Water sitting in PVC pipes overnight may also be steeping into a toxic tea. Very large exposures can lead to "vinyl chloride disease," which causes severe liver damage and ballooning of the fingertips;Hydrofluoric acid "can cause intense pain and damage to tissues and bone if the recommended gloves happen to have holes in them.“ This highly corrosive substance is the active ingredient in many household rust removers.

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Vinyl chloride: Is the source of "new car smell": The plastic interior of a new car offgasses this known carcinogen. Water sitting in PVC pipes overnight may also be steeping into a toxic tea. Very large exposures can lead to "vinyl chloride disease," which causes severe liver damage and ballooning of the fingertips.

Hydrofluoric acid "can cause intense pain and damage to tissues and bone if the recommended gloves happen to have holes in them.“ This highly corrosive substance is the active ingredient in many household rust removers. But even the most liberal list of known toxins pales next to the order of volatile organic compounds (VOCs). VOCs comprise hundreds of natural and man-made, carbon-based agents. They react quickly with other carbon-based compounds, and evaporate easily, making them ideal solvents. VOCs can be found in disinfectants and pesticides, too. Solvents: Benzene and methyl ethyl ketome traverse cell walls unchecked by normal cell defense. Both are known carcinogens. Cousins toluene, xylene, 1,1,1-trichloroethane and trichloroethylene make up the lion's share of the solvent market;

Disinfectants: Phenols, which include biphenyl, phenolics and the preservative pentachloraphenol, are found in disinfectants, antiseptics, perfumes, mouthwashes, glues and air fresheners;

Pesticides: Chlordane, aldrin, dieldrin, though all banned for nearly two decades, continue to show up airborne in older houses.

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Common Myths about Construction Defect Lawsuits

Do you know all there is to know about construction defect lawsuits? There are some common myths about these types of lawsuits that seem to exist regardless of where you live. Here are three of the most common: Myth #1: A certificate of occupancy means that the building was constructed properly. A certificate of occupancy, or “C of O” as it is commonly referred to, only signifies that certain minimum safety and/or building code standards have been met according to the city’s or county’s guidelines. These guidelines differ depending on where you live, but a home that receives a “C of O” does not mean that it was constructed properly or is free of defects. Myth #2: If the defect is not covered under a limited warranty, the homeowner can’t sue. While a limited warranty may be limited to specific construction defects and time constraints, it doesn’t mean that the homeowners don’t have a remedy against the builder. In fact, the homeowner may be able to recover from the builder, the developer, the general contractor or sub-contractors under several causes of action. These include strict liability, negligence and breach of contract. An experienced attorney will be able to determine what causes of action might be available in your situation.

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Myth #3: A home with a construction defect will always be worth less. While many homeowners believe that their home’s defect will forever be doomed for future sale, the truth of the matter is that most buyers who see that a defect has been corrected tend to overlook the matter. The key here is that the problem was corrected properly. Homeowners must disclose any known defects when listing a home for sale. Therefore, it’s best to correct the problem beforehand – even if that means filing a lawsuit against the responsible party to obtain those funds.……………………………………………………………………………………………………………..

California Construction Defect LawsIf you own a home in California and discover a construction defect, bringing a lawsuit against the responsible party may require a bit more than filing a complaint at the courthouse. That is, if your home was built in 2003 or after…

SB 800The California Legislature passed Senate Bill (SB) 800 in late 2002 in an attempt to curb construction defect litigation between builders, homeowners and the insurance industry. SB 800 allows home buyers to sue for latent defects (those that don’t cause personal injury or property damage) if they comply with certain pre-litigation procedures that allow a builder the opportunity to repair the construction defects beforehand. However, the law only applies to homes built after January 1, 2003.

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Is this a good or bad thing?The jury is still out on that question. Proponents of the law say that it relieves the tension (and litigation) between all the parties involved in the home buying process by giving builders the chance to make things right instead of being hit with a lawsuit that will cost them time and money to defend. Critics of the law say that the law doesn’t go far enough. They believe that all homeowners, regardless of when a home was built, should be able to take advantage of the law – especially because California has a 10 year statute of limitations for latent home defects. So, a home can be relatively new, but not be covered under the law.

Ten year SOL (Statue of Limitations) California law states that all homeowners have 10 years in which to file a lawsuit for latent defects against a home builder / developer. However, that 10 year period may actually be shorter if you discover the defect and don’t do anything about it (i.e.; other statutes of limitation may kick in instead). It all depends upon what type of defect exists. So, while the 10 year period is the absolute limit, it is best to speak with a qualified attorney as soon as you discover the defect to make sure that you protect your potential claim. 

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Toxins that might be under your roof:

Formaldehyde

Radon

Lead

Carbon Monoxide Vinyl Hydrofluoric Acid Solvents

Disinfectants

Pesticides

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A sign for our times

A sign of our times?

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The Roofer’ s Friend

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What’s missing?

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It’s just not my day !

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Rampart General

The ClassicFactory Made

Concrete Cast Single unit

Fireplace & Chimney

Shortcut to 97-draftstop.JPG.lnk

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Only part of their defects

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Lee’s house

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EXTERIOR COMPONENTS

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Attic Fun

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Unfortunately more common than you would think

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Roof Framing Fun

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2007 CBC requires guards at the leading edge of a stairways, ramps or landings located 30” above the floor or grade below to be a minimum of 42” in height.

42” min.34” min – 38” max

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Winders must have dimensional uniformity like any other stair. They should be measured perpendicular to nosing at point 12 inches from inside edge.

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Stair Crazy

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Fry Room 1

Fry Room #1

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Fry Room 2

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Darwin Model 442

FIREPLACES

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Realtor’s open

house

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“Sparky” Madness

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DoubleLugging

#1CommonElectrical

Defect

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# 2

My box runeth over

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# 3

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Panel Overspray

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Darwin Candidates

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Looks Fine, but wait?

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Darwin Runner-up1999

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Put Your Metal Ladder Up Against the Metal Gutter?

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2003 DARWIN WINNER

Pool owner’s floating receptacle outlet

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Who is the most vital man on the job;

The plumber or the HVAC guy?

The Electrician thinks he is!

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Forced Air Furnace Cold-Air-Return locations

Teds Dead

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Please open the window dear, I need some fresh air.

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Why Uncle Billy has a headache every morning ?

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“How did you sleep last night, Jeff?”

“Like a dead man, Jerry”

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Way to common

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Bonus Bonner

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Fred, you home from work early or did some varmint crawl under the house and die?

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1999 Darwin Winner

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Darwin Contender: Automatic Clothes dryer vent connected into plumbing stack vent

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Which was first, the plumber or the electrician?

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“Target Rich Environment”

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Grandpa & Grandma Killer

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Hmmmm?

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BUILDING SITES

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BUILDING SITE

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Get the water away !

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Dumb installation of 2006

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WHAT DOYOUNOTICE?

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USELESS

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List the problems

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I’ll bet you didn’t know I

could do that much

damage with my awl?

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CSI

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Our view is more important than our safety

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Water Heaters;The most “target rich” appliance in a residential dwelling

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One of the most common defects

CPC - 508.5 Relief Valve Discharge: Discharge from a relief valve into a water heater pan shall be prohibited.

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New in the 2007 CPC: 608.5 - Water heater relief valve drains shall not terminate in a building’s crawl space.

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Manual PTRV

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Tic

Tic

Tic

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Electrical bonding- jumpers

Majority are M.I.A.

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Why most water heaters should be equipped with drain pans

Why most water heaters should be equipped with drain pans

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Now that should make it right?

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Neat Install

Foundations & Below Grade Spaces

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NOT SO NEAT

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CURVED STEM WALL - WHAT’S WRONG?

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But will it hold?

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Sloped Grade Beam framing detail

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CLOSE BUT NO CIGAR !

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Texas Hold-down

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What’s wrong with this picture?

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Uncle Buck builds his wine cellar

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Mandrake the Magician’s Beam

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How to use up your scrap lumber

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How old Realtors end up

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How old inspectors end up

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How to deal with a shower pan leak

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Smallest recodedlegally built on lot East of the Mississippi River

Alameda County

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CONSTRUCTION GLOSSARY

CONTRACTOR: a gambler who never gets to shuffle, cut, or deal.

BID OPENING: A poker hand in which the losing hand wins.

BID: A wild guess carried out to two decimal places.

LOW BIDDER: A contractor who wonders what he left out?

ENGINEER’S ESTIMATE: The cost of construction in heaven.

PROJECT MANAGER: The conductor of an orchestra in which every musician is in a different union.

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CRITICAL PATH METHOD: A management technique for losing your ass under perfect control.

OSHA: A protective coating made by half-baking a mixture of fine print, red tape, split hairs, and baloney – usually applied at random with a shotgun.

STRIKE: An effort to increase egg production by strangling the chicken.

DELAYED PAYMENT: A tourniquet applied to the pockets.

COMPLETION DATE: The point at which liquidated damages begin.

AUDITOR: Person who goes in after the battle is lost and bayonets the wounded.

LAWYER: Person who goes in after the auditors to strip the bodies.

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A coming café fadfromJapan

Not a joke, but a new definition for convenience !

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Thanks for watching my show