Supreme Court Settles Circuit Split on Right to Appeal Summary Judgment

Louisiana’s New Home Warranty Act (“NHWA”) provides remedies to homeowners forcertain construction defects once the new home construction is complete. La. R.S. 9:3141 et seq. These protections can prove crucial to a homeowner’s ability to remedy defects that appear in their home, but the statutes providing these remedies establish strict guidelines that must be followed for the protections to apply. This generally post sets forth some of the key protections and obstacles/defenses that often arise. However, each specific claim should be considered under its own facts.

PROTECTIONS

The NHWA provides specific protections to homeowners. Each protection expires if not advanced within a set time-period.

Noncompliance/Defects- The NHWA protects against “any defect due to noncompliance with the building standards or other defects in materials or workmanship not regulated by building standards.” La. R.S. 9:3144(A)(1). This category includes defective construction or materials used in the construction. Even seemingly minor issues such as cracked plaster, yellowing paint, and “rubbing off” of new paint can give rise to a valid claim for recovery under this portion of the NHWA. See Bynog v. MRL, LLC, 05-122 (La. App. 3 Cir. 6/1/05), 903 So.2d 1197. Deviations from the “plans and specifications” for a home may also be recoverable. See Thorn v. Caskey, 32-310 (La. App. 2 Cir. 9/22/99), 745 So.2d 653.

Because this first protection is so broad, it also provides the shortest time-period to assert a claim: one year from the “warranty commencement date,” which is either the date legal title to the home is conveyed to its initial purchaser or the date the home is first occupied, whichever occurs first. La. R.S. 9:3142(7).

Plumbing/Electrical/HVAC- The NHWA also protects the homeowner from defects in the plumbing, electrical, heating, cooling, and ventilating systems. These protections exclude equipment or appliances. A homeowner must bring a claim under this second category within two years of the warranty commencement date. La. R.S. 9:3144(A)(2).

Major Structural Problems- the NHWA allows recovery for major structural defects up to five years following the warranty commencement date. La. R.S. 9:3144(A)(3). For instance, recovery was allowed for a failing foundation under this provision in Campo v. Sternberger, 15-53 (La. App. 5 Cir. 11/19/15),179 So.3d 908.

PITFALLS

The most obvious – and probably most prevalent – pitfall is the timeliness of the claim. Courts do not hesitate to dismiss a claim if it is not timely filed.

The NHWA also requires that the homeowner give the builder written notice (via certified mail) of the defect before the homeowner attempts a repair, or before filing suit under the NHWA. La. R.S. 9:3145(A). This notice must be sent to the builder within one year after the homeowner has knowledge of the defect. Therefore, the one-year “clock” may begin to run when the homeowner gains knowledge of the problem even if the NHWA provides a longer time-period to advance the claim.

A failure by the homeowner to give timely notice can also diminish the claim even if it is brought within the deadlines. Under La. R.S. 9:3144(B)(4)(c), any damages caused by the homeowner’s failure to give the builder notice of the defect are not recoverable. In that circumstance, builders often contend that the severity of the problem could have been lessened had they been made aware.

RECOVERABLE DAMAGES

With some exceptions, damages under the NHWA are limited to the actual damages incurred by the homeowner, including attorney fees and court costs arising out of the builder’s violation. La. R.S. 9:3149. The actual damages cannot exceed the reasonable cost of repair or replacement necessary to cure the defect. If there are multiple defects across the home, damages are limited to the original purchase price of the home.

Consequential damages such as pain and suffering, mental anguish, or loss of use are generally not recoverable. See La. R.S. 9:3144(B); Iteld v. Four Corners Const., L.P., 12-1504 (La. App. 4 Cir. 6/5/13), 157 So.3d 702. However, there may be exceptions to this general rule under certain factual circumstances beyond the scope of this post.

CONCLUSION

The NHWA provides important remedies to homeowners. But, the New Home Warranty Act is complex and balances the competing interests of the homeowners and the builders. For this reason, a failure to follow the notice and timeliness requirements will often defeat the claim.

John Grinton, is a partner at Keogh Cox whose practice areas include commercial and construction litigation. When he is not practicing law, John spends most of his time with his wife and son, and their two dogs.

Fortunately, the 2024 hurricane season has been relatively calm. We previously blogged about steps that can be taken after your property is damaged by a hurricane or other natural disaster. (Click here to access our prior blog). With a Tropical Storm, and potential Hurricane, threatening our coast, here are some steps to consider taking to prepare before a storm arrives in the event you must make a property insurance claim for damages after the storm:

• DOCUMENT, DOCUMENT, DOCUMENT – The best way to prove the condition of your property before damage is caused is to document it. Take pictures and videos of the interior and exterior of your home or business. Create an inventory of your contents. Narrate the video to provide better descriptions. If your property is damaged, this documentation will be used to verify its condition and make it easier for your insurer to adjust and pay your claim.
• INSPECT YOUR PROPERTY – As you are making your preparations, you may consider taking a walk around your property to notice any prior damage to your property. Identify any issues that could affect a potential insurance claim.
• KNOW YOUR INSURANCE COVERAGES – Make sure you are aware of the coverages that your insurance policy provides. The Declarations Page to your policy should provide much of this information – the coverage limits, types of coverage provided, deductible, etc. While your insurance agent likely maintains this for you, it is good practice to maintain and know this information, which lets you know what will or will not be covered.
• MITIGATE YOUR DAMAGES – You can take steps to prevent damage to your property during the storm. You can pick up items around the property that could become airborne and take whatever precautions you can to prevent damage to your property, particularly the exterior. If your property is damaged, you can make temporary repairs to prevent further damage until your insurance company can get to you (like placing a tarp on the roof).

The United States Supreme Court recently granted writs in a case that could affect the minimum contacts test used to find jurisdiction were a similar case brought in Louisiana. See Walden v. Fiore, 688 F. 3d 558 (2011). In Walden, the United States Supreme Court will decide whether to uphold the Ninth Circuit's ruling that a court may exercise personal jurisdiction over a defendant whose primary contact with the forum state was his knowledge that the plaintiffs had connections to that state.

In Walden, airline passengers sued a DEA agent who allegedly violated their Fourth Amendment rights in seizing $97,000.00 in cash. At least some of the cash was won on a gambling trip to San Juan, Puerto Rico. The plaintiffs boarded the plane in San Juan with a planned stop in Atlanta in route to Las Vegas.

Once in Atlanta, a drug-detection dog "alerted" to one of the plaintiff's bags. The bags were searched and the $97,000.00 was seized under suspicion of a connection to drug activity. Nevertheless, the plaintiffs were allowed to board their flight to Las Vegas and were promised return of the cash if they could establish its legitimacy.

It was alleged that one of the officers prepared and/or helped to prepare an allegedly false probable cause affidavit to facilitate the forfeiture of the cash to the government. Ultimately, the cash was returned.

The suit was filed in Nevada and was dismissed for lack of personal jurisdiction. In refusing jurisdiction, the District Court cited to the fact that the agent's conduct was "expressly aimed" at Georgia.

On appeal, the Ninth Circuit Court of Appeals, using a three-part test derived from Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802(9th Cir. 2004), held that the allegations were sufficient to satisfy the "forum-related conduct" prong of the test for specific jurisdiction. Therefore, Nevada jurisdiction was reasonable.

The Ninth Circuit agreed that the officer's seizure of the cash was "expressly aimed" at Georgia and did not support jurisdiction. However, the Ninth Circuit believed that the false probable cause affidavit aspect of the case supported jurisdiction in Nevada.

The Court reasoned that the officer was aware of the plaintiffs' significant connections with Nevada because: the plaintiffs had told the officer that they were going to Las Vegas; some of the funds originated from Las Vegas; and, background checks were run on the plaintiffs after they returned to Nevada. Under these facts, the Court concluded that the officer expressly aimed his conduct at Nevada when he prepared the affidavit and thus subjected himself to the jurisdiction of a Nevada Court.

The facts of Fiore set the stage for an important jurisdictional ruling.