South Carolina Construction Lawyer

Pella Prevails in SC

A federal judge in South Carolina on Sept. 26 awarded summary judgment to Pella Corp. on a man’s breach of express warranty claim, ruling that replacement windows the company installed to remedy allegedly defective ones did not extend the 10-year limited warranty (In re: Pella Corporation Architect and Designer Series Windows Marketing, Sales Practices and Products Liability Litigation, MDL 2514, Case No. 14-mn-0000, John Romig Jr., et al. v. Pella Corporation, No. 14-cv-00433, D. S.C.; 2016 U.S. Dist. LEXIS 131282).

South Carolina and Strict Liability 

In light of last week’s discussion regarding Hernandezcueva v. E.F. Brady, I thought it fitting to clarify current SC precedent on the issue of strict liability and contracts for services. A link to that article is here. In South Carolina, strict liability applies only to sales of products and not to the provision of services. Fields v. J. Haynes Waters Builders, 376 S.C. 545, 658 S.E.2d 80 (2008) (builder, as general contractor for construction of home, provided services was not subject to strict liability for damage from installation of defective stucco siding that allowed moisture intrusion). South Carolina has a Defective Products Act which states that one who sells any product in a defective condition, which is unreasonably dangerous to the user, or consumer, or to his or her property, is subject to liability for physical harm caused to the ultimate user or consumer, or to his or her property, if the following apply: A. the seller is engaged in the business of selling such a pr..

Strict Products Liability for Non Selling Contractors?

In Hernandezcueva v. E.F. Brady Company, Inc., California Court of Appeals for the Second District, Case No. B251933 (December 22, 2015), the Court of Appeals has held for the first time that a contractor who installed drywall using a joint compound – both of which contained asbestos – which the contractor was not aware of – could be found liable for strict products liability. The case’s subject matter can be simplified to the following scenario. During the 1970’s a commercial building was remodeled by E.F. Brady. Part of the remodeling project included drywall which was bid by Brady with a one percent (1%) built in adjustment for unknown material price fluctuations. Evidence supported Brady’s contention that it was not a seller of any asbestos containing product as its contract price also clearly set forth 75% to labor and 25% for materials with no mark up or profit other than the 1% floating adjustment. The Plaintiff, Hernandezcueva, worked at the remodeled facility where his duties ..

OSHA and Silica Regulations Close to Finality

The the Occupational Safety and Health Administration (OSHA) has finally sent its comprehensive rule governing worker exposure to silica dust to the White House Office of Management and Budget (OMB) for final review. A proposed rule until now, the silica guidelines’ pending approval by OSHA will make them law. Silicosis is the lung disease the rule is trying to curtail. While neither I or anyone I know has ever heard of it, silicosis can be fatal. Evidence suggests that the disease is rare, however, and fatalities have declined since its identification in 1968. The OSHA guidelines would affect all trades which involve sand blasting, rock drilling or ceramic and glass manufacturing. From a construction industry viewpoint, the silica rule certainly applies to folks working in almost any capacity with concrete and masonry. The rule might also affect those in the business of manufacturing or applying drywall and other synthetic products such as siding materials. In the grand picture, t..

Still a Beneficial Tool, Mediation Process Is Not Perfect

South Carolina Construction Defect Law by Christopher Clay Olson In 2001 I mediated my first case as a young lawyer with just enough knowledge to be dangerous… myself most likely. Over the past 14 years I have observed the process and it’s uncanny ability to resolve the previously unresolvable. Lately I have noticed the indirect, less tangible benefits. That said, a review of the past 15 years leaves me with a few criticisms. Mediation The legal definition of mediation is as follows: “A settlement of a dispute or controversy by setting up an independent person between two contending parties in order to aid them in the settlement of their disagreement.” That independent person, the mediator, is typically a lawyer removed from the parties and case prior to mediation. He or she wears many hats during the process. One should be a capable listener who possesses other qualities such as man management, a calm demeanor, and the ability to remain… View original post 568 more words

Florida Rules Developer Not Entitled to Additional Insured Coverage for Negligent Misrepresentation

A Florida court has determined that a project owner’s (Cypress) general partner was not an additional insured under an insurance policy issued to the Genral Contractor (WPC) who constructed the project. The ruling was made in conjunction with a lawsuit brought by a homeowners association for construction defects, maintenance issues and failure to disclose material facts. WPC’s insurer (St. Paul) was not obligated to defend or indemnify General Partner (Vineland) for damages arising from alleged construction defects. St. Paul Fire & Marine Ins. Co. v,. Cypress Fairway Condo. Ass’n (M.D. Fla. July 20, 2015). It should be noted for factual understanding that Cypress and Vineland were both named additional insureds on three policies issued to WPC. These policies were issued in 1999-2001 by St. Paul to WPC. Cypress and Vineland were named as separate defendants and alleged to have mismanaged the property and negligently omitted information allegedly relied upon by buyers making up the Plai..

North Carolina Courts face coverage for faulty work issue in Nationwide v. Hyde

Insurance coverage for faulty workmanship is certainly not a new topic on this blog, and states have entertained the issue with varying conclusions for years. The U.S. District Court for the Western District of North Carolina will take this issue on in a case styled Nationwide Mutual Insurance Company v. Hyde. (1:2015cv00137) In Nationwide Mutual Insurance Company v. Hyde, Nationwide requests a declaratory judgment that coverage is not owed to a builder who was sued by homeowners for property damage that occurred as a result of the insured constructing the home on top of improperly compacted fill soil. The homeowners were awarded $350,000.00 in damages in an underlying suit against the builder. Nationwide provided the insured a defense in the underlying suit, but filed the declaratory action subsequent to the $350,000 judgment. pursuant to a reservation of rights, once a judgment was entered against the insured, Nationwide filed the declaratory judgment action seeking the extent of..

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