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Nevada
Case Law
Report from the Front Lines of the Construction
Defect Wars
by Ned
Barnett
Class-Action certification for construction defect lawsuits covering
detached single-family homes may soon come to an end – at least in
Nevada
. At least, that is the
opinion of a panel of experts convened at the most recent Construction
Defects Seminar, held annually in
Anaheim
in May and hosted by West Coast Casualty.
To date, five construction defect lawsuits in
Nevada
have gone to a verdict. In two
cases involving condos, the courts awarded more in the way of damages to
plaintiffs than they had asked for. And
three suits involving single family homes proved how easy it had been –
until now, perhaps – to gain the class certification necessary to file a
class-action suit. In one of
those cases, a single homeowner’s complaint was sufficient grounds for
the judge to certify this class for a class action suit.
However, that seems to be
changing. An unpublished
Nevada Supreme Court ruling has advised lower courts to consider other
construction defect remedies, especially those alternatives spelled out by
Nevada
law. Specifically, the Nevada
Supreme Court emphasized the importance of the recently-enacted “right
to repair,” affirming that this right has to be exercised (or rejected)
before class certification can be considered.
In addition, the Nevada Supreme Court called for “representative
testing” before class certification – noting that a single instance of
a problem is insufficient to document a widespread problem needing legal
remedy.
Experts on the panel suggested
that this unpublished ruling will lead to a sharp decline – in
Nevada
– in class action cases involving single family-detached dwellings.
Right
to Repair
Under recent
Nevada
legislation, contractors in
Nevada
have an absolute “right to repair” before construction defect legal
actions can be taken against them. A
homeowner cannot sue unless he has a provable defect, and unless the
builder has refused to exercise his “right to repair.”
In addition, unless and until
an expert has published a finding of defect, homeowners do not have the
right to tell them of legal actions they may be contemplating –
preventing the premature pressure in a neighborhood to “form a class”
and sue the builder. The bottom line here is clear – the Nevada
Supreme Court has derailed the growing trend toward construction defect
class action lawsuits involving single family-detached homes.
Experts in this panel at West
Coast Casualty’s 12th Annual Construction Defects Seminar,
included attorneys Jill Ann Herman, J. Gregory Cahill, James Pengilly,
Scott Thomas and Charles Litt. |
