Hardcover

Handling Construction Defect Claims: Western States, Fourth Edition

Handling Construction Defect Claims: Western States, Fourth Edition by Thomas E. Miller, Rachel M. Miller, Matthew T. Miller

Handling Construction Defect Claims: Western States, Fourth Edition

Contributor(s)
By Thomas E. Miller, Rachel M. Miller, Matthew T. Miller
Update Frequency
Updated annually
Last Update
10/12/2016
Product Line
Wolters Kluwer Legal & Regulatory U.S.
Available formats

Details

Handling Construction Defect Claims: Western States, Fourth Edition , puts you on the cutting edge in this expanding practice area. Bringing decades of experience representing a diverse spectrum of residential real estate interests and homeowners' associations, co-authors Thomas E. Miller and Rachel M. Miller detail each aspect of this specialized area, from the statutorily prescribed causes of action to the common law theories of liability, from prelitigation steps to defense considerations, and damages. You'll find up-to-the-minute guidance on California construction defect law, as well as the evolving law in Nevada, Arizona, Colorado, Utah, Oregon, and Washington.

You'll also gain valuable insights in these vital areas:

  • The merging of toxic tort litigation and construction defect litigation
  • Emerging insurance considerations
  • Alternative dispute resolution (ADR) methods and techniques
  • The effective use of experts in a construction defect case
  • And more!

ISBN: 9781454811695
Pages: 371
SKU: 1454811692
ETA: Available: Item ships in 3-5 Business Days

Chapter 1. EVOLUTION OF CONSTRUCTION DEFECT LITIGATION

  • § 1.01 Historical Development
  • § 1.02 Current Status
  • § 1.03 Commercial and Residential Theories of Recovery

Chapter 2. PRELITIGATION CONSIDERATIONS

  • § 2.01 In General
  • § 2.02 What Constitutes a Construction Defect?
  • § 2.03 Types of Defects
  • § 2.04 Evaluating the Case
  • § 2.05 Seeking Professional Assistance
  • § 2.06 Developer-Builder Considerations
  • § 2.07 Venue Considerations

Chapter 3. STATUTORY PRELITIGATION STEPS

  • § 3.01 In General
  • § 3.02 Arizona
  • § 3.03 California
  • § 3.04 Colorado
  • § 3.05 Hawaii
  • § 3.06 Nevada
  • § 3.07 Oregon
  • § 3.08 Washington
  • § 3.09 Certificates of Merit

Chapter 4. STANDING TO SUE

  • § 4.01 Real Party in Interest
  • § 4.02 Class Actions

Chapter 5. CAUSES OF ACTION

  • § 5.01 Overview of Causes of Action
  • § 5.02 Arizona
  • § 5.03 California
  • § 5.04 Colorado
  • § 5.05 Hawaii
  • § 5.06 Nevada
  • § 5.07 Oregon
  • § 5.08 Utah
  • § 5.09 Washington

Chapter 6. INSURANCE CONSIDERATIONS

  • § 6.01 Fundamental Issues
  • § 6.02 Third-Party Coverage
  • § 6.03 First-Party Coverage

Chapter 7. DEFENSE CONSIDERATIONS AND RESPONSES

  • § 7.01 Introduction
  • § 7.02 Statutes of Limitation and Repose
  • § 7.03 Mitigation of Damages and Additional Defenses
  • § 7.04 Indemnity and Contribution

Chapter 8. DISCOVERY

  • § 8.01 Introduction
  • § 8.02 State-by-State Overview
  • § 8.03 Right to Conduct Discovery
  • § 8.04 Scope of Discovery
  • § 8.05 Developing an Initial Understanding of the Case
  • § 8.06 Use of Special References and Case Management/Pretrial Orders in Defect Litigation
  • § 8.07 Arizona’s Unique Disclosure of Information Rule
  • § 8.08 Limitations on Discovery
  • § 8.09 Methods of Discovery
  • § 8.10 Discovery Sanctions

Chapter 9. EXPERTS AND TECHNICAL INFORMATION

  • § 9.01 Introduction
  • § 9.02 Organizing the Investigation
  • § 9.03 Architectural Defect Analysis
  • § 9.04 Geotechnical Distress Analysis
  • § 9.05 Soil Conditions
  • § 9.06 Structural Complications
  • § 9.07 Indicators of Problems
  • § 9.08 Additional Considerations
  • § 9.09 Civil Engineering Analysis
  • § 9.10 Relocation Analysis
  • § 9.11 Role of Real Estate Appraiser

Chapter 10. DAMAGES

  • § 10.01 Introduction
  • § 10.02 Statutory Damages
  • § 10.03 Compensatory Damages
  • § 10.04 Consequential Damages and Costs
  • § 10.05 Punitive Damages
  • § 10.06 Damages for Emotional Distress
  • § 10.07 Limitation on Damages

Chapter 11. SETTLEMENT AND OTHER ALTERNATIVES IN TRIAL

  • § 11.01 Introduction
  • § 11.02 Plaintiff’s Settlement Strategies
  • § 11.03 Defendant’s Settlement Strategies
  • § 11.04 Universal Settlement Considerations
  • § 11.05 Alternative Dispute Resolution Appendixes

APPENDICES:

  • Appendix 1 - Homeowners’ Association Confidential Questionnaire
  • Appendix 2 - Checklist of Documents Needed from Each Homeowners’ Association
  • Appendix 3 - Sample Letter Rejecting Case
  • Appendix 4 - Sample Survey Cover Letter
  • Appendix 5 - Sample Letter Regarding Confidentiality
  • Appendix 6 - Attorney Fee Article
  • Appendix 7 - Homeowners’ Association Contingency Fee Agreement
  • Appendix 8 - Expert File Index
  • Appendix 9 - Typical Services Experts Perform
  • Appendix 10 - Preliminary Estimated Expert Investigation
  • Appendix 11 - Sample Consultant Retention Agreement
  • Appendix 12 - Sample Board of Directors Resolution to Establish an Executive Committee
  • Appendix 13 - Sample Letter of Agreement in Retention of a Joint Expert
  • Appendix 14 - The Calderon Flow Chart
  • Appendix 15 - Sample Case Management Statement
  • Appendix 16 - SB 800 Building Standards: Cal. Civ. Code §§ 896 and 897
  • Appendix 17 - Sample SB 800 Flow Charts and Timeline for Prelitigation Procedures
  • Appendix 18 - Sample SB 800 Notice to Builder
  • Appendix 19 - Summary of SB 800 Limitations Periods
  • Appendix 20 - Sample Certificates of Merit
  • Appendix 21 - Sample Reserve Study Postponement Letter
  • Appendix 22 - Sample SB 800 Complaint
  • Appendix 23 - Sample Complaint: Individual Homeowners v. Developer
  • Appendix 24 - Sample Complaint: Homeowners’ Association v. Developer
  • Appendix 25 - Insurer’s Declaratory Relief Action Form
  • Appendix 26 - Sample Direct Tender Letter
  • Appendix 27 - Sample Additional Insured Tender Letter
  • Appendix 28 - Answer to Complaint
  • Appendix 29 - Sample Cross-Complaint
  • Appendix 30 - Sample Answer to Cross-Complaint
  • Appendix 31 - Memorandum of Points and Authorities in Support of Motion to Sever
  • Appendix 32 - Sample Motion and Memorandum for Determination of Good Faith Settlement
  • Appendix 33 - Sample Case Management Order
  • Appendix 34 - Sample Pretrial Orders
  • Appendix 35 - Sample Complex Civil Case Flow Chart
  • Appendix 36 - Complex Litigation Standards
  • Appendix 37 - Sample Motion and Application to Deem Matter Complex
  • Appendix 38 - Sample Request for Admissions
  • Appendix 39 - Interrogatories Propounded to Plaintiff Homeowners’ Association from Builder
  • Appendix 40 - Interrogatories Propounded to Defendant and Cross-Defendant Re: Insurance Coverage
  • Appendix 41 - Interrogatories Propounded to Cross-Defendants (Design Professional, Contractor, Subcontractor) by Defendant Builder
  • Appendix 42 - Interrogatories Propounded to Builder by Plaintiff Homeowners
  • Appendix 43 - Sample Form Interrogatories
  • Appendix 44 - Demand for Production of Documents Propounded by Plaintiff Homeowners’ Association on Defendant Developer
  • Appendix 45 - Demand for Production of Documents (from Plaintiff Homeowners' Association) to Defendant Original Builders of Condominiums
  • Appendix 46 - Demand for Exchange of Documents from Cross-Defendant (Design Professional, General Contractor, Subcontractor, Material Supplier) to Original Builders of Condominiums
  • Appendix 47 - Demand from Cross-Defendant (Relating to Allegations of Cross-Complaint) to Original Builders of Condominiums
  • Appendix 48 - Demand from Developer-Builder to Subcontractor
  • Appendix 49 - Demand from Builder to Plaintiff Homeowners’ Association
  • Appendix 50 - Standard Request for Entry on Land
  • Appendix 51 - Stipulation and Order Re: Site Inspection and Testing (Complex–Condominium Project)
  • Appendix 52 - Stipulation Re: Site Inspection and Testing (Simple— Single-Family Residence)
  • Appendix 53 - Exchange of Expert Witness Information
  • Appendix 54 - Expert Witness Declaration
  • Appendix 55 - Sample Mutual Release and Settlement Agreement
  • Appendix 56 - Sample Mutual Release and Settlement Agreement—Developer in Bankruptcy
  • Appendix 57 - Sample Board Resolution Re: Settlement
  • Appendix 58 - Sample Policy Limits Demand Letter to Defendant Insured
  • Appendix 59 - Sample Policy Limits Demand Letter to Insurer
  • Appendix 60 - List of Construction Defect Mediators
  • Appendix 61 - Sample Mediation Timeline
  • Appendix 62 - Destructive Testing Agreement

Table of Cases

Index

Contributor(s)

Thomas E. Miller is the Founding Partner and CEO of The Miller Law Firm. He has been a distinguished construction defect attorney for over 38 years. During his first eight years of practice he represented developers and their insurance companies. Since 1981, Miller has exclusively represented homeowners and associations in construction defects claims. A nationally recognized expert and pioneer in his field, he has recovered over $600 million for his association clients including 100 settlements and verdicts over $1 million. Miller is AV rated (highest possible rating in both legal quality and ethical standards) by Martindale-Hubbell and has been voted by his peers a "Super Lawyer" from 2008 through 2012.

Mr. Miller is the author of the definitive consumer handbook on the subject, Home and Condo Defects: A Consumer Guide to Faulty Construction. He is also the author of the only legal textbook and treatise on the subject, California Construction Defect Litigation: Residential and Commercial (1986 & 1993), which has been cited by several courts. Miller is also the author and instructor of several university extension courses specifically tailored to educate association managers and homeowner association boards.

Rachel M. Miller is a partner with The Miller Law Firm. She has been with the firm for nearly 20 years and has practiced law with the firm for 14 years. Rachel has had the primary and unique role of Communications Partner. Providing immediate contact and communication to current and prospective clients, board members, and community association managers gives the firm the necessary connection to clients facing construction defect claims. Rachel has held many distinct positions in the Community Association Industry: board member of several chapters of Community Associations Institute (CAI), the Elite President's Club, California Association of Community Manager's Legal Advisory Committee, ECHO's Legal Resource Panel, and Board of Director of Consumer Attorneys of California.

Rachel is co-author of the only consumer handbook on the subject, Home and Condo Defects: A Consumer Guide to Faulty Construction. Additionally, Rachel is editor and moderator of various university extension courses and regularly speaks on legislation, disaster response, and mold as it relates to construction defect claims.

Matthew T. Miller also carries on the legacy of his father, Thomas E. Miller, as a partner of The Miller Law Firm. He coordinates expert investigation and testing, assuring the association’s defect issues have been addressed in the most thorough and cost effective manner. In so doing, he interacts with board members, property managers, and owners, is engaged in the firm’s case strategy meetings, and attends joint expert meetings and mediations. Matt is a member of research and editorial team on all firm publications and, with his vision, created the firm’s first web site directed solely to helping owners and owner associations with construction defects, www.constructiondefects.com. It remains today the signature site for The Miller Law Firm.

Matt earned his Bachelor of Arts in 1994 from the University of California at Berkeley, went on to earn his Juris Doctorate from University of California Hastings College of the Law in 2000, and has been a member of the California State Bar since 2001. Matt’s interests in the culinary arts lead him to receive the Grand Diplome from Le Courdon Bleu in Paris. Matt is also co-author of The Miller Law Firm’s definitive consumer handbook on the subject, Home and Condo Defects: A Consumer Guide to Faulty Construction.

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