PIB. And It’s Increased Movement Into Window Defect Claims

By on February 17, 2016
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Polyisobutylene, or PIB, is a synthetic rubber commonly used as an edge sealant in Insulating Glass Units (IGU’s).  IGU’s consist of multiple glass panes within a window frame (e.g. “double-glazed” and/or “triple-glazed” windows), and serve the purpose of insulating building interiors from both sound and thermal transmission. These IGU’s are typically separated by “spacer bars” and sealed at the outer edges of the panes to the spacer bars between those panes. PIB is the most commonly used primary sealant for this purpose. There are multiple manufacturers of PIB, just as there are many manufacturers of windows/IGU’s which incorporate the PIB edge-sealant into their finished products.

Over the past year or more, we are seeing an increased incidence of “PIB movement” claims arising in construction defect cases. Owners, developers, general contractors, and the window manufacturers themselves, are filing claims in increasing numbers against the manufacturers of PIB products based upon the products migrating from their appropriate placement at the edge of the windows, into and obscuring the IGU’s fields of vision. This is particularly true in the cases of multi-unit, multi-story HOA complexes, where double and triple-glazed windows are becoming commonplace.

As these claims continue to grow in number, further investigations are being performed to determine if the migrating PIB is in fact due to a product defect, if the PIB is being improperly installed, and/or if its use is contraindicated in high-heat environments. The jury is still out on the answer to these questions, but for now, building professionals of all ilks would be well advised to take a hard look at the causes of this growing PIB issue prior to installing PIB-edge-sealed windows into their respective upcoming projects.

Filed under Construction Defect, Polyisobutylene

HOA Does Not Own Cause of Action for Alleged Solar Heat-Gain-Related Defects

By on October 21, 2014
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Over six years following the plaintiff HOA’s initial 2008 construction and design defect complaint, Beacon Residential v. Catellus Third and King, LLC, et al. continues to generate new law and to address legal issues of import and interest to those in the construction defect community.

In its latest ruling, a California Superior Court found that the plaintiff HOA does not own claims related to alleged solar heat-gain as they belong to the former owner(s) of the project. In reaching its decision, the court relied heavily upon the findings in Krusi v. Amoroso Construction Co., Inc., 81 Cal. App.4th, 995 (2000), in which the court found that subsequent owners of property do not own claims for known defects that arose and caused damage prior to their ownership.

ICON BLOG_neighborhoodn its complaint, the HOA alleged causes of action for design and construction liability related to solar heat-gain and ventilation. Members of the HOA asserted their units were becoming too hot due to the alleged defects.  The HOA suit named the two developers, the general contractor and its subcontractors, and the two project architects, HKS and SOM.
Of particular importance to the court’s ruling was the fact that the project was sold by the first developer to the second developer, who then sold the units as condominiums and formed the plaintiff HOA.  The plaintiff’s complaint alleged that both developers knew of the alleged solar heat-gain-related claims, which the court considered a judicial admission by the plaintiff.  Given this admission regarding prior knowledge by the developers, and the fact that the developers had previously suffered damages, the court found that the heat-gain-related causes of action were owned by one or both of the developers, but certainly not the HOA.

On October 1, 2014, the court issued an order sustaining both architects’ motions to strike.  In making its ruling, the court relied upon the following language from Krusi:

[A] duty may run from an architect, engineer, or contractor to a subsequent owner of real property.  It does not mean that, in a case implicating damage to such property, once a cause of action in favor of a prior owner accrues, another cause of action against the same defendant or defendants can accrue to a subsequent property owner – unless, of course, the damage suffered by that subsequent owner is fundamentally different from the earlier type.

In short, the court ruled that when alleged defects of the same type cause damages to a prior owner or owners of a building, the subsequent owner (herein, the HOA) does not own the cause of action for damages caused by the same alleged defects. The plaintiff has verbally noted its intent to take a writ regarding the subject ruling, and we await the plaintiff’s next move.  For now, however, the ruling that a subsequent owner of a property does not own a cause of action if the prior owner knew of the alleged defects and suffered damages therefrom, has implications for all who practice law in the arena of construction defect litigation, and their respective clients.

Image courtesy of Flickr by Lauren Wellicome

Filed under Construction Defect, Homeowners Association (HOA), Solar Heat-Gain Defects

California Supreme Court to Address Design Professionals and Duty of Care to Third-Party Purchasers

By on June 5, 2014

On May 7, the California Supreme Court heard oral arguments in Beacon Residential Community Assn. v. Skidmore, Owings, & Merrill LLP, a case that will have a huge impact on design professional liability in California when third-party purchasers sue a designer alleging defective designs.

The Beacon is a mixed-use project consisting of 595 condominium units and some commercial and office space.  Plaintiff Beacon Residential Community Association (the HOA) sued the initial developer, a subsequent developer, the architects, the general contractor and subcontractors asserting SB 800 and common-law causes of action.  The architects demurred to the HOA’s Third Amended Complaint asserting they owed no duty of care to the HOA.

The trial court sustained the demurrer, reasoning that the architects had not asserted direct “control” over construction decisions, and thus, under the Biakanja ((1958) 49 Cal. 2nd647), Bily ((1992) 3 Cal. 4th 370) and Weseloh ((2004) 125 Cal. App. 4th, 152) line of decisions, ruled the architects owed no duty to the HOA.

The HOA appealed and in December 2012, the California Court of Appeal, First Appellate District, reversed the trial court ruling in Beacon (2012) 211 Cal.App.4th 1301. The Court of Appeal reasoned that in analyzing the various factors elucidated in Biakanja and Bily, and distinguishing those and the Weseloh facts from those in Beacon, design professionals do owe a duty of care to eventual third-party purchasers.  The architects appealed to the California Supreme Court asserting that the rulings in Weseloh and Beacon are inapposite.

During the Supreme Court oral arguments, the justices focused on: 1)  the foreseeability of harm to the plaintiff; 2) the closeness of connection between the defendant’s conduct and the injury suffered; and 3) the potential imposition of liability out of proportion to fault.  The court distinguished Beacon from the former line of cases in that: 1) it was imminently foreseeable that a defective design of residential units would affect eventual purchasers of the units; 2) the architects were directly responsible for the alleged design defects given their “intimate involvement” with construction value-engineering decisions and project observation (i.e., they did not simply draw plans, hand them over, then leave the project); and 3) unlike Weseloh, where the retaining-wall designers provided only $2,000 in services relative to a $6 million claim, Beacon architects provided $5 million worth of services in a $45 million claim.

The Supreme Court has 90 days from May 7 to issue an opinion.  Given the Supreme Court’s comments and analysis at oral argument, it looks like it may agree with the Court of Appeal and rule that in the context of residential-unit design, design professionals do owe a duty of care to eventual third-party purchasers regardless of lack of privity.

Filed under Design Professionals, Duty of Care, Homeowners Association (HOA), Privity, Third-Party Purchasers