Posts Tagged ‘Class Actions’

Chinese Drywall Class Action Trial in 6 Months? Doubtful.

On August 12, 2009        

Recently in Chinese Drywall legal news is Judge Eldon Fallon’s goal to try the first Chinese Drywall case by the end of 2009.   While I applaud Judge Fallon for his ambition, and do believe that the issues are time-sensitive and should be litigated quickly and aggressively, I think the promise is an empty one.

Trying a Chinese Drywall class action case in 6 months is frankly impossible, and homeowners should not let this news get their hopes up.

A class action specialist in Florida, Ervin Gonzalez, was quoted in an article about Judge Fallon’s intentions saying the following:

Fast-tracking is an understatement. It’s a rocket docket. And he means business.   He wants the first case tried by the end of the year, and he wants an inspection of every home. He wants to be able to get to the bottom of the problem.

Here’s the obvious problem:  He can’t get to the bottom of the problem in the next 5 or 6 months.

The problem is complicated, and the science is in its infancy.   Leading scientist are unsure of whether the problem can be remediated, or whether full replacement of sheetrock is required.   Leading scientist are also unsure about what is actually causing the problem, and whether even replacement of the contaminated sheetrock will be enough to solve the problems.

This is not to mention some serious legal hurdles:  (1) Discovery; (2) Getting all the Defendants on the same page; (3) Identifying all the Defendants; (4) Dragging foreign manufacturers into Judge Fallon’s court.

Judge Fallon’s recent statement is sensational news, but it is false hope for the homeowners, builders and suppliers who are struggling to resolve their Chinese Drywall problems.   The only thing that has happened in his court is the allocation of attorneys fees and attorney leadership – which has nothing to do with the substantive matters.

Deadlines to file suit against builders, subcontractors and insurers are ticking away.  Homeowners, Builders and Subcontractors are all affected by these deadlines, and it’s important that they all make their claims as immediately as possible to avoid the expiration of these claims.

There are problems with class action litigation as it relates to Chinese Drywall damages.  Judge Fallon’s impossible 6-month deadline only underlines those problems.

This article was originally posted on Wolfe Law Group’s topic-specific Chinese Drywall Blog.

Posted in:     Chinese Drywall  /  Tags: , , , , ,   /   1 Comment

Is the Avalanche of Lawsuits Against Builders Imminent?

On July 23, 2009        

Wolfe Law Group’s own Scott Wolfe, Jr. provides the leading quote in a recent article from HousingZone.com:   Homeowners Increasing Suing Local Builders.   Scott gave this quote to the publication:

The best and quickest way to get the drywall out is to go after the builder, who ultimately has to live up to his warranty.   If the consumer tinkers with class-action lawsuits that can drag out for months, their warranties start to expire, and their chances of getting something from the builder are slimmer.

If we’ve said it once on this blog, we’ve said it a thousand times (here, here, here, here and here).

While class action suits have their purpose, it presents real challenges to homeowners who are interested in getting the Chinese Drywall out of their property.

The class action suits have their warts, and homeowners may find a better remedy by filing a direct action against their builders, suppliers and insurers.

With every day that passes, however, deadlines are drawing closer.    The one year deadline for insurance claims and torts.  The 3-4 year deadline with claims in redhibition.   And the 1, 2 or 5 year deadlines associated with construction warranty claims.

The worst news about the deadlines being that many, if not most of the statutory periods begin when the drywall was delivered or installed…and not when the homeowner learned of the problem.

All was quiet with regard to individual lawsuits against builders and suppliers, but recent news reports indicate that the remedy is gaining some steam.

The article from HousingZone.com is not alone.  The Times Picayune recently reported that homeowners are more frequently suing builders, and Baton Rouge’s Advocate had the same analysis.

Could an avalanche of Homeowner v. Builder suits be on the horizon?

If you’re interested in learning more about bringing a suit against your builder, or your construction company is interested in bringing suit its suppliers and insurers, contact Wolfe Law Group today.

This article was originally posted on Wolfe Law Group’s topic-specific Chinese Drywall Blog.

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Factors to Consider When Faced With Chinese Drywall Claim

On May 13, 2009        

We authored a legal guide on Avvo.com about what Builders & Suppliers should do If They Have Installed or Supplied Chinese Drywall.

The folks at Coastal Contractor magazine highlighted another such “guide” from attorneys at Wood Smith Hening & Berman, LLP.    The useful guide is titled “Chinese Drywall Personal Injury Claims: Lessons from Prior Mass Torts.”

While our discussion focused on practical choices facing builders and suppliers who should move quickly to mitigate their damages, involve insurance and retain counsel….this guide focuses on the mass tort aspect of the Chinese Drywall claims.

A tort – for the non-lawyer readers – a body of law that addresses, and provides remedies for, civil wrongs not arising out of contractual obligations.  Usually, they are commonly referred to as “personal injury” damages.

As the authors in the Mass Torts guide discuss, the Chinese Drywall claims are interesting in that they present construction defect claims & tort claims.    The authors suggest that builders, suppliers and other effected parties should learn from prior mass tort cases in preparing their defenses.

The thesis is good, and useful for both construction attorneys and construction industry participants faced with these claims.  It ties in to previous discussions here at the Chinese Drywall Blog about whether Class Actions are a right fit for drywall claims and about builder exposure in the claims.

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Chinese Drywall Crisis Presents Builders, Construction Lawyers and Homeowners with Difficult Choices (Homeowners)

On May 13, 2009        

Previously, we examined difficult choices and considerations facing builders and construction attorneys who have installed or supplied Chinese Drywall.

Today, we are going to comment on the most injured party to the imported drywall crisis:  the Homeowner.

Homeowners with Chinese Drywall in their homes are faced with a terrible situation.  Is it safe to live in the home?  How pronounced is the problem?  Who is going to pay to fix it?  When?

While attorneys and construction industry professionals have debated how these disputes should be handled and litigated…the homeowner’s life and property is left in the balance.  Here are a few important and difficult choices facing homeowners with Chinese Drywall installed.

Finding A Remedy:  Class Action v. Insurance v. Builder

In one corner, weighing in as a monster, is the class action lawsuit.   There are already television commercials, internet keyword ads and news reports suggesting that if your home has Chinese Drywall installed…you should contact an attorney and join the filed class action suits.

In the other corner is a lawsuit directly against your builder, a contractor who is quite possibly a victim in itself…and who may not have the pockets or wherewithal to handle the scope of imported drywall claims.

And finally, we have insurance.  Insurance of the builder, of the supplier and even homeowners insurance.   They have all been implicated in imported drywall claims already…and the consensus is that the pollution exclusion will provide room for insurance companies to deny claims.

What is the homeowner to do?

Unfortunately, the answer here is not easy.

As debated across the blogosphere, there are pros and cons to each remedy.  Class action suits can take years, and may not result in a real remedy for claims unrelated to personal injury.   Suits against the builder may have practical collection problems.  Insurance companies are denying coverage based on pollution exclusions…

The best answer for homeowners is to get educated about Chinese Drywall, and to consider all of the available remedies.   It isn’t prudent to contact a class action attorney, provide them with your name and number, and flip off your mental switch about taking legal action related to tainted drywall.

Homeowners should explore all available remedies, and seek counsel about how to best proceed against responsible parties for damages caused by Chinese Drywall.

The Long Road of Litigation:  Fixing Yourself

Let’s just talk about a homeowner’s practical problem:  getting the drywall out of their property.

Assuming they have contacted a class action attorney and are hoping to be a member of the class…what does a homeowner do to get the drywall out of their quarters while they wait years for the litigation to resolve itself?

Well, unfortunately, homeowners may be forced to do the work themselves, and not just because they want the drywall removed…but also because they have a duty to mitigate their damages.

Clearly, this is one of the most prominent critiques of Chinese Drywall class action suits.

Conclusion

Perhaps more so than builders, suppliers, construction attorneys and other involved parties…homeowners are faced with difficult and consequential decisions about how to proceed with Chinese Drywall claims.

There is already much debate as to how they should proceed…and only time will tell which remedies will be successful in this complicated search for liability.

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Posted in:     Chinese Drywall  /  Tags:   /   1 Comment

Another Lawsuit. Another Builder.

On April 30, 2009        

Centerline Homes (@FLNewHomes) – a Florida “Neighborhood Home Builder” is the latest contractor to face litigation related to Chinese Drywall.

The suit was filed as a class action, but is unlike other class actions in that it seeks recovery from the builder.

In a comment made to the press, Centerline Homes seems to feel a bit jaded by the Chinese Drywall situation in Floriday, blaming “plaintiff attorneys and the media” for fueling a “hysteria” over Chinese Drywall.

The lawsuit against Centerline Homes will likely be among the 10-15 class action suits set for hearing on May 27th before a U.S. Judicial Panel on Multidistrict Litigation.  According to the TC Palm, the suit requests the following from builders:

  • Replace all Chinese Drywall, as well as all wiring, pipes, building materials, furniture, appliances and household items ‘affected by sulfur emissions’;
  • Have houses tested to make sure they are “sulfur free;”
  • Pay homeowners for the loss in the value of their home;
  • Give homeowners a lifetime, transferable warranty on the homes;
  • Compensate residents for all current and future health problems resulting from the emissions.

Clearly, tall orders for any builder, and cause for concern for any builders, installers or suppliers out there who supplied or installed Chinese Drywall.

Concerned and wondering what to do?  Check out this how-to here.

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