The Critical Path - June 2006

Friday, June 9, 2006 The Critcial Path, June 2006   VOLUME 1 ISSUE 1  
Topic List
From the Editor
From the Chair
State Case Notes
Federal Case Notes
Feature Articles
From the Editor

by Chris E. Ryman

Thanks to our team of assistant editors who helped create this issue by soliciting articles, writing articles and writing case notes.  In this issue we are focusing on our case notes and we are featuring  Part 1 of a 2-Part Series on “Green” Building and the impact of construction on people and the environment. We have case notes from Alabama, Arkansas, Illinois, Kansas, Louisiana, Missouri, Oregon, Texas and Virginia.  We also have many outstanding articles that will be published in For the Defense in its September 2006 issue.  Contribute an article or case note to the Critical Path, or, if you enjoy writing, volunteer to serve as an Assistant Editor.  Remember that our membership is national. 

From the Chair
Introduction From the Chair
by C. William Daniels, Jr.

This collection of case notes and articles is another step in the evolution of our Critical Path Newsletter. We thank our contributors, and are pleased to present this latest newsletter. Our Publications Chair, Chris Ryman, and Co-Chair, Ian Faria, are always looking for cases of interest, new ideas, news from around the country, and quality articles. If you would like to forward an article, please do so to Chris Ryman at or

DRI Panel Counsel Meeting Opportunity for Carriers Attending Construction Law Seminar
DRI Panel Counsel Meeting Opportunity for Carriers Attending Construction Law Seminar San Francisco, California September 7-8, 2006

All carriers and large companies employing outside counsel are invited to participate in DRI’s panel counsel program.  In exchange for inviting their outside counsel to attend a panel counsel meeting concurrent with this year’s Construction Law Seminar, carriers and companies can receive up to 10 free registrations for their in-house personnel and up to 2 complimentary room nights at the seminar hotel.  In Las Vegas last year, seven carriers and companies participated in this win/win scenario. 

State Case Notes
The Texas Supreme Court sends a tort claimant to arbitration against a home builder with no signed contract.
by David V. Wilson

In re Weekley Homes, L.P., 49 Tex. Sup. Ct. J. 55 (Oct. 28, 2005) (org. proceeding).

The Supreme Court of Texas recently looked to equity to break the bounds of traditional contract law and held that a nonsignatory was forced to arbitrate her personal injury claim pursuant to a contractual arbitration clause in its recent opinion in In re Weekley Homes, L.P.

Illinois State Case Note
by Thomas W. Mulcahy

Walsh Construction Co. v. Mutual of Enumclaw, 388 Or. 1, 104 P.2d 1146 (Or. 2005)

 Is a provision in a construction contract that requires a contractor to name another party as an additional insured under the contractor’s commercial general liability policy void in states that have anti-indemnification statutes?  The answer to that question obviously depends on what state law applies and the facts of the case.  In Oregon, however, the Supreme Court recently held that, under certain circumstances, the answer to that question is yes.

Texas Court Construes Presuit Notice Provision of Residential Construction Liability Act (RCLA)
by Julie S. Elmer

Hernandez v. Lautensack, --S.W.3d--, 2006 WL 949989 (Tex. App. April 13, 2006)

In 1999, homeowner Philip Lautensack hired contractor Roy Hernandez d/b/a Hernandez Roofing to replace the slate tile roof on Lautensack’s residence for a cost of $20,000.  After the new roof was installed, it leaked continuously, and Hernandez was unable to repair it after several attempts.  In 2002, Hernandez told Lautensack that the leaks were the result of a hailstorm, and he offered to replace the roof for $9,100 labor if lautensack purchased the new slate tiles at a cost of $25,000.

Federal Case Notes
Illinois Federal Case Note
by Thomas W. Mulcahy

Options Center for Independent Living v. G&V Development Co., 229 F.R.D. 149 (C.D. Ill. July 15, 2005)

Design professionals in Illinois, unlike in some other states, are able to utilize the economic loss doctrine to limit their liability in tort for lawsuits that seek the recovery of purely economic losses.  While Illinois courts continue to apply the economic loss doctrine to design professionals under common law theories of negligence, a recent federal district court applying Illinois law refused to apply the economic loss doctrine to an action against a design professional for alleged violations of the Federal Fair Housing Amendments Act. 

Summer Federal Case Notes
by Catherine L. Schnaubelt

French v. Assurance Company of America, ____ F.3d ____ (United States Court of Appeals for the Fourth Circuit April 27, 2006) (final publication pending).

The United States Court of Appeals for the 4th Circuit affirmed in part, vacated in part, and remanded a decision granting summary judgment in favor of insurers by the District Court of the Eastern District of Virginia. The dispute originated from damage to a home caused by defective application of synthetic stucco to its exterior by a subcontractor. In the lower court, the homeowners, as assignees of the general contractor’s claims, brought suit against the contractor’s insurers for breach of contractual duty to indemnify and breach of implied covenant of good faith and fair dealing.

Feature Article
Sustainable Design: Why “Green” Building is here to Stay (Part 1 of 2-Part Series)
by Larry J. Liu and Heather F. Shore

So, what is sustainable design and why should I care?  Green or sustainable design takes into account the impact of construction on people and the environment.  Sustainable design does not just mean constructing attractive buildings.  Rather, its primary purpose is to focus on environmentally responsible construction that creates buildings and interiors which are (1) healthier for people and enhance worker productivity; (2) can be constructed at market rate costs and cost less to operate; (3) use less fossil fuels thereby conserving energy, generating less global pollution and costing less to maintain; (4) use less water; (5) manage waste at a high productive level; (6) reduce the impact on both developed and undeveloped land; and, (7) minimize the use of materials and use materials with the lowest environmental impacts.

Upcoming Seminar

Construction Law Seminar September 7-8 2006. For more information click the brochure.


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Issue 1
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