ND Successfully Defended Residential Homebuilder in Construction Defect Claim Resulting in a Defense Verdict Against a $2.7 Million Claim
In 2018, ND defended a top five national residential homebuilder in a Construction Defect litigation claim. The bench trial involved 19 homes in Southern California where homeowners asserted that their homes were defective from the dirt to the roofs and started trial with a cost of repair estimate of almost $2.7 million. To add to the complexity, the homes were mixed between being covered by the Right to Repair Act and pre-dating the Act. The biggest claims involved soils, windows, and roofs. Plaintiffs’ experts asserted that ten of the homes needed cut-off walls installed around the perimeters of the footings and removal and replacement of all landscaping improvements due to expansive soil and lateral fill extension. They also asserted that all 700+ windows were defective and re-roofing was needed due to numerous defects.
ND’s team, led by trial counsel Joe Ferrentino, focused their strategy on the importance of the Judge inspecting these homes herself. By doing so, the Judge had the opportunity to truly see the overall quality of the neighborhood and the homes. The judge visited three homes at the beginning of the trial and the rest at the end of the trial.
After visiting the homes and over 20 days of testimony, ND’s client completely defensed the claims of five homes and defensed all soils’ issues. The judge specifically found that the homeowners’ geotechnical expert’s testimony, “concerning the need for cutoff walls is highly speculative.” The court also found their window expert to be “an evasive, unreliable witness” because he “did not follow industry standards when performing his spray rack testing”; and his testing “suffers from significant bias and error” because he did not perform random and representative sampling. As for the roofs, the judge determined that after two days of testimony, the homeowners’ expert had only “identified two small areas where there were any potential violations of a functionality standard or compensable damage.”
The judge bifurcated liability from damages and the specific damage amount is yet to be determined. However, based on the judge’s ruling on the first phase of the trial, the ultimate damage award is expected to be less than $120,000, which is also significantly less than the pre-trial statutory settlement amounts offered by the developer. This should result in ND’s client recovering most of its trial costs.