Monthly Archives: June 2010

New Home & Construction Defect Litigation

I am proud to report that my wife and I have realized one of the cornerstones of the American dream – we have just purchased our first home! This was no easy task considering the current financial situation of our country and the hesitancy of banks to loan out money. Somehow, someway, we put in one offer on one home and that is the house we got … and we couldn’t be happier.

For the past two weeks we have been knee (and elbow deep) in primer, plaster, paint, padding, carpeting, and other niceties of home improvement. All you have to do is take a look at the paint that is clumped on my forearm that is making the hair on my arms stick together. I almost feel as though I am an unwitting participant in one of those home makeover shows.

Aside from the joys of home ownership and now being able to safely store all my daughter’s stuff, I have realized what a chore that home ownership will be. Leaky pipes, leaky roofs, leaky windows, mold … the issues and responsibilities are endless and I have my first $600 plumbing bill to show it – looks like I can’t just call property management anymore. When did plumbers start making more money than attorneys anyway?

I also harken back to the words of the experts from Pete Fowler Construction Services. We now have four of PFCS’s courses hosted on our website, taped at various lunchtime events around Southern California. Having worked in the trenches for a number of years President Pete Fowler and licensed architect Paul Kushner are experts in many areas of construction defect and have seen many types of construction defect claims.

If you need help deploying your expert witness in construction defect litigation Mr. Fowler and Mr. Kushner provide an informative and entertaining look at how to get the best results from you expert at trial in Construction Defect: Expert Witness. Knowing and understanding the expert in a construction defect case, making the right tactical decisions, and taking the time to prepare will pay off in a successful verdict or settlement. Areas covered in this course include expert witness preparation, designation, planning, presentation, performance and pitfalls to avoid at trial. Even it you don’t practice in construction defect litigation, this is an incredibly entertaining course and the information gleaned can be transferred over to other practice areas.

In Mold Management: What Have We Learned, Mr. Fowler cuts through the complexity and media hype to focus on the real issues surrounding mold. Mold is nothing new – it has been around for thousands of years and there are even accounts in the bible – it has just come to the forefront of litigation over the past decade. Mr. Fowler provides reliable sources of information for its management and introduces a framework for the professional handling of situations where mold might be present in occupied buildings. The presentation starts by describing the state of the legal landscape, details professional standards and practices, illustrates the dangers of mold, and finishes by thoroughly detailing the mold management method – a comprehensive six phase process for properly handling mold claims.

Construction Defect: Building Codes & Standards is for the legal practitioner who needs to understand how codes and standards affect the construction of buildings and how violations or deviations from codes and standards can place the general welfare of the public at risk and can expose the design professional and construction professional to legal liability. In this in-depth presentation, Mr. Kushner deals with how codes and standards have evolved through the ages to provide for the health, welfare, and safety of the general public and how they continue to evolve today. Design professionals must design in compliance with codes and standards, general contractors must build to conform to codes and standards and building officials are entrusted to enforce codes and standards.

In Building Wall Inspection & Testing Mr. Fowler describes how the built environment has changed over the years. It used to be that Owners would hire experienced, hard working Architects and Engineers who developed plans and specifications that were not perfect – but good enough – that experienced, hard working General Contractors could hire experienced, hard working Trade Contractors to do the work of making a project happen. The construction was relatively simple and our expectations were less than perfection, so most projects were considered acceptable. Now we have consumers who expect increasing quality and decreasing prices in all products, a building industry that is not keeping pace with the quality and price advances many industries are making, and consumers who are more litigious than ever. The built-environment has been altered in the last 20 years, including increased complexity, less fault-tolerant materials, and tighter, slower drying buildings, and consumers are more conscious of building-related health issues than ever.

As President of Pete Fowler Construction Services, Pete Fowler is active as a General Contractor, Certified Professional Cost Estimator, Certified Inspector, Construction Consultant, author and speaker regarding construction topics. Focusing on construction projects and buildings suffering distress, Mr. Fowler has analyzed damage, performed testing, specified and overseen repairs, performed repairs as a contractor and testified on a wide variety of construction issues. Mr. Kushner is a California licensed architect with 20 years experience in the design and development of residential construction projects. He has an extensive background in coordinating and leading multi-disciplined complex construction litigation for both plaintiffs and defendants including planning and directing of invasive testing programs, analysis of collected interdisciplinary inspection data, preparation of scopes of work, coordinating cost estimates.

Thank You Washington: The Repeal of the Estate Tax

I came across this one on this morning over my morning cup of coffee at Starbucks:

A 77-year-old Texas billionaire’s death two months ago comes at a fortuitous time for his heirs because of a quirk in the U.S. estate tax.

Oil pipeline tycoon Dan Duncan may be the first U.S. billionaire to die within a one-year window of exemption from the estate tax, the New York Times reports.

His reported $9 billion in wealth would have been taxed at a tax rate of at least 45 percent if he had died three months earlier, the story says. If he lived until next year, the tax rate would be 55 percent.

The window was part of an estate tax bill signed into law in 2001. Democrats had sought to eliminate the 2010 window, but failed to reach an agreement in December. Even if a bill passes this year, it’s unclear whether it will be applied retroactively, the story says.

Yes, one of the most disturbing things to take place in the law this year is the repeal of the estate tax – or the “death” tax – as George W liked to call it. I know it’s not quite scary as the new Nightmare on Elm Street movie, but for legal practitioners that deal with wills, trusts, and probate matters there could be no bigger nightmare than the story of Dan Duncan. What is most troubling about the current situation is the partisan bickering and gamesmanship that has brought us to this point – complete uncertainty. It’s the beginning of June and nothing is even on the horizon, and nobody seems to think that Washington is going to get anything done until after the November elections have concluded.

If you don’t normally deal with estate matters, the disappearance of the estate tax on January 1, 2010 brings unintended consequences for many wills and trusts this year, and the threat of client dissatisfaction and lawsuits for legal practitioners. At this point everyone is asking what exactly can you do in these uncertain times? And the only answer anyone seems to have – who knows? I think if you talked to five different attorneys you would get five different answers because nobody knows exactly what’s going on.

If you need some enlightenment in this area please join S. Andrew Pharies in The Estate Tax: Tips for Practitioners as he details the issues surrounding the repeal of the “Death Tax,” presents four possible scenarios for resolution, talks about the effect of the repeal, discusses interpretive issues, and closes his presentation with a discussion of Professional Responsibility and malpractice liability. Mr. Pharies’ practice encompasses estate planning, charitable planning, post-mortem trust and probate administration and litigation, exempt organizations, transfer tax (estate, gift, and generation-skipping) planning, income tax planning, business planning, and tax litigation. He is a Certified Specialist in Estate Planning, Trust and Probate Law by the State Bar of California Board of Legal Specialization.