Wednesday, November 26, 2008

The Argument...

before the Utah Supreme Court on the continued vitality of the Economic Loss Doctrine (which regular readers know that I "love to hate"), will be heard on Tuesday, December 2, at 9 a.m.

Arguments will be at the Utah Supreme Court, 450 South Main, 5th Floor, Salt Lake City, Utah.

The appeal arises from a dispute between the Davencourt at Pilgrim's Landing Townhome Owners Association and the entities involved in the development of the project. The lawsuit involves allegations of serious construction defects; the development entities successfully argued in the trial court that the economic loss doctrine precluded most of the plaintiff's claims.

I won't get to argue to the court, but I'll be in the audience cheering the plaintiffs on. I was allowed to file an amicus curiae (friend of the court) brief on behalf of the Community Associations Institute. A copy of my brief is available here.

I hope to see you there. And remember, although the public is allowed, literal cheering from the courtroom is strongly discouraged.

2 comments:

  1. P. Douglas Folk, AttorneyTue Dec 02, 07:10:00 AM 2008

    Sorry to hear that you don't favor the economic loss doctrine. It's actually a very sound policy to put tort law and contract law back on their proper paths. It also discourages the sort of frivolous claims that have become a staple of "construction defect" litigation over the last 10 years.

    Too many lawyers have enriched themselves, at the expense of their homeowner clients and the construction industry and their insurers who have to defend these frivolous claims, by twisting tort concepts to impose liability far beyond any reasonable limit. As a defender of many in these lawsuits, I welcomed the ELD as a way to put the system right.

    I don't shed a tear for developers who build a shoddy product, but their customers have an adequate remedy in those jurisdictions that will revoke contracting licenses for bad work, and enforce notice-and-repair statutes that require builders to respond to legitimate complaints.

    With respect, you have taken the wrong side on this argument.

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  2. Thanks for your comment. I received it upon my return from the argument, and based upon the questions from the Justices, I think they appropriately realize that the ELD has gone too far. Time will tell. Follow this blog for an update, as soon as the opinion is released.

    Sure there are a few frivolous lawsuits out there, but in my experience, they're few and far between in this state. Utah is not comparable to California or Nevada (or Arizona), and never will be. (In construction defect litigation, or anything else, for that matter.)

    A much bigger problem here is the builders who build on knowingly bad soil, hire incompetent subs, and then hide behind a single purpose LC to protect them from the contract claims.

    And Utah doesn't revoke contractors' licenses for bad work, and we have no right-to-repair statutes.

    Things may be worse for builders in Arizona, but many bad California and Nevada contractors responded to that (prior to the economic downturn), by flocking to Utah so they could build their bad projects here, and sell them to unwitting Utah residents.

    So, thanks, sincerely,for your comment. I respectfully disagree with it, however, particularly for the State of Utah.

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