OTLA Trial Lawyer Spring 2021

36 Trial Lawyer • Spring 2021 The notice of defect process at ORS 701.560 et. seq. requires a homeowner provide a “notice of defect” to a contrac- tor before filing suit. The statute is very precise about what a notice of defect must include. If a plaintiff does not fol- low the statute, the complaint can be dismissed. The process has a number of steps, but a contractor is required to re- spond within 90 days with an offer to repair asserted defects, pay some amount of money or deny responsibility for the defects. After that, a homeowner can file a lawsuit or an arbitration claim. As great as that sounds, I can count on one hand the times a client and con- tractor were able to come to agreement as to repairs. Often, the contractor will not even respond to a notice of defect. One downside of the statute is it does not really punish contractors for ignoring the process. Sometimes, the contractor is out of business and there is no one to write back. Copying insurance carriers on the notice of defect is therefore an important part of the process. Some car- riers will appoint defense counsel based on the notice of defect alone, while oth- ers will wait until a lawsuit is filed. Breach of contract and, sometimes, breach of the implied warranty of fitness for purpose and habitability are claims available to an “original” owner. Even if an owner is not the original purchaser of a home, that owner can bring a claim for negligent construction, regardless of priv- ity. Abraham v. T. Henry Constr., Inc. , 350 Or 29 (2011); Harris v. Suniga , 344 Or 301 (2008). In other words, a second or third homeowner can bring a negligence claim against a general contractor and subcontractors for home defects, even if the homeowner is a total stranger to the contractors. Many other states are not so generous, and require privity between the plaintiff and the defendant. Other claims might be available to the homeowner, depending on the facts of the case. Every construction defect case re- quires an expert and, sometimes, more than one. Construction defects can take many forms, and you will need an expert versed in the particular set of problems. The expert must be able to help prosecute the case, of course. But the expert should also be able to explain defects to the cli- ent. Just as important, the expert must be able to educate me about the defects. I need to understand the defects in my cases, because I have to take depositions of contractors and others — depositions that really focus in on what happened during construction and why the defects are there. You can’t do that unless you understand the building science behind the defects. The building envelope Most of my cases involve the “build- ing envelope” — that is the siding, win- dows, doors, roof and decks. For this, you must have an expert witness capable and experienced enough to conduct an investigation, compile a report and then testify as needed. The initial investigation of a home usually involves the expert conducting “destructive” or “invasive” testing. This requires removing trim, siding, or other materials to see if there are underlying defects and property dam- age. The expert will take photos and, more and more, videos of the defects. Sometimes the expert will conduct water testing and video record the result that shows the path the water takes through the building. Clients are often dismayed when they see the layers of their home peeled back and the damage water can do to wood over time. I have had experts who reach out and with a bare hand, and take out handfuls of decayed and rotted sheath- ing, and framing from a home. Some- times, the damage is so bad the expert will have to recommend temporary re- pairs for safety. Decks that are deterio- rated often will need shoring up to make Construction Defects Continued from p 35