Last week, a Southwest Airlines plane suddenly developed a mysterious football size hole in the passenger cabin which caused the pilot to make an emergency landing. The next day Southwest announced there was no extra fee for the fresh air.
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CHAMBERLAIN McHANEY SCORES SUMMARY JUDGMENT FOR WINDOW MANUFACTURER IN MAJOR CONSTRUCTION DEFECT CASE: Leaking window lawsuits involve a complex hybrid of product liability and construction law, along with technical manufacturing and installation issues.
In our case, the plaintiffs, subsequent purchasers of the largest apartment complex in central Texas (34 multi-story buildings), filed suit against numerous subcontractors involved in the original construction of the complex in 2000. Plaintiffs alleged construction defects resulting in water intrusion and widespread systemic damages to the complex. Plaintiffs had purchased the complex “as-is” after a HUD foreclosure sale in 2004, without performing any meaningful inspection of the property other than a 3 hour walk-through of the complex.
In addition to suing numerous subcontractors that provided labor during original construction, Plaintiffs sued our client, a well known, national window manufacturer, claiming that the windows leaked and caused the damage. The plaintiffs sought over 14 million dollars in damages.
On behalf of the window manufacturer, we moved for summary judgment, claiming that Plaintiffs had not brought a proper cause of action against the manufacturer; that the two-year limited warranty on the windows had expired; that the economic loss doctrine barred Plaintiffs’ claim for negligence; that Plaintiffs had no cause of action for damages that pre-dated their purchase of the property, because (1) a subsequent owner cannot sue for injury to realty that occurred before the subsequent owner acquired its interest, absent an express assignment of the cause of action from the prior owner, and (2) the “as is” purchase of the property from HUD cut off all downstream causes of action; and (3) that the statute of limitations barred Plaintiffs’ causes of action.
After extensive briefing and oral argument, Judge Rhonda Hurley of Travis County granted a full summary judgment for our client and assessed all costs against the plaintiffs. David Chamberlain and Erin Westendorf handled this successful defense for the firm at the request of Zurich American Insurance Co. and Atrium Aluminum Products. Pflugerville Fox Run Apts. v Atrium Aluminum Products (Travis County, Tex. 2009).
Robert M. Reed, Jr., director of litigation of our client, Atrium Aluminum Products, is scheduled to speak at the DRI national construction law seminar on September 10-11 in San Francisco. His topic: “Windows—Technical and Legal Issues.” Atrium is the largest manufacturer of vinyl and aluminum window and patio doors in North America.
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CHAMBERLAIN McHANEY WINS SUMMARY JUDGMENT IN PREMISES LIABILITY CASE: In a suit filed in San Antonio seeking several hundred thousand dollars in damages, the plaintiff alleged that he was seriously injured when he fell from a ladder while installing a roof on new residential construction. The plaintiff sued his employer, the roofing subcontractor and the general contractor. The plaintiff alleged that our client, the general contractor, owed a duty to vet the subcontractors to insure their competence and to inspect the sub’s equipment to confirm that it was adequate and safe.
On behalf of the general contractor, we moved for summary judgment, asserting that the homebuilder owed no duty to a subcontractor’s employee under either premises defect or negligent activity theories of liability. We argued that in the absence of evidence that the GC created the premises defect or controlled the activities of the subcontractor, there is no liability under Texas law. The Bexar County trial court agreed, and summary judgment was granted. David Chamberlain and Cathy Kyle successfully handled the general contractors defense at the request of Mid-Continent Insurance Company and Brad Marshall Homes LLC. Elias v. Brad Marshall Homes LLC (Bexar County , Tex. 2009).
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David Chamberlain has been elected to membership in the prestigious American Board of Trial Advocates (ABOTA). ABOTA membership is selected strictly by election of peers in the trial bar and is limited to experienced lawyers who have tried numerous jury trials.
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TX/UP! LUNAR LANDING UPDATE: To commemorate the 40th anniversary of the moon landing, the three astronauts from Apollo 11 were invited to the White House. Neil Armstrong and Buzz Aldrin were allowed inside, while Michael Collins was forced to drive around in circles outside.
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We will cover all the notable 2009 cases and new legislation at our full day, fully accredited 2009 Ultimate Claims Handling Seminar on October 16, 2009 at CityPlace Conference Center in Dallas, Texas. You can register now by going to www.chmc-law.com. Sign up now.