Sunday, June 11, 2017

Your contractor cannot delegate his building code responsibilities.

Maryland's Court of Special Appeals has made clear what construction law practitioners have been arguing in the trial courts for a long time -- A general contractor or developer may not delegate its responsibility to comply with building codes to sub-contractors.

On May 31, 2017 the COSA decided Marrick Homes v. Rutkowski, an appeal from a very large money judgment by a trial court in favor of a severely injured homeowner against a general contractor. Mr. Rutkowski fell thirteen feet when a protective railing across a patio door opening failed. He broke bones and sustained a head injury. Expert witnesses explained that the wrong nails were used to secure the protective railing to the house, and that the connections failed when Mr. Rutkowski placed his weight against the railing. The railing did not comply with local building codes.

The work was done by a subcontractor of the defendant at least seven years before, when the house was owned by someone else. Mr. Rutkowski had even been living in the house for several months before he fell.

The contractor defended by saying that the injury was too far removed in time to be related to any action by the contractor.  It also argued that adherence to local building codes had been delegated to the subcontractor paid to install the railing.

The appellate court upheld the trial court judgment. The obligation to comply with all applicable building codes, including those that apply to the work of sub-contractors, cannot be delegated away by the general contractor. The property owner can look only to the general contractor/developer for compliance.

The court also reminds us that claims for personal injury arising from a contractor's or developer's negligence must be brought withing ten years under Maryland's "Statute of Repose." Once an injury is discovered, a lawsuit must be filed within three years of discovery, but in no event later than ten years from the date of the work performed by the defendant.  In this case, the passage of seven years did not bar recovery by the plaintiff.

For homeowners and buyers of real property, one lesson of the case is to look beyond a contractor's defense of "I gave responsibility for that work to a sub-contractor." This will not fly, and our office has obtained several judgments against bad contractors who asserted this exact defense- The sloppy or negligent contractor/developer cannot shed its responsibility to adhere to local building codes.

For the contractors and developers, the case is also a reminder that sub-contractors selected by the should be viable and fully insured. This preserves the contractor's rights of indemnity (to recover from the sub that actually performed the bad work). In this case, the sub-contractor that installed the defective railing had gone out of business shortly after the work was performed, leaving the contractor to bear the full weight of financial responsibility for the plaintiff's injuries.

Thomas C ValkenetClients’ ChoiceAward 2017

Thursday, April 27, 2017

Attacking a void judgment has no time limits.

Statutes of limitations prevent successful lawsuits that are too old. For example, a lawsuit for money damages filed more than three years after a car accident is too late because the statute of limitations.

But lawsuits don't always demand money damages. Claims can be made for injunctive relief (asking the court to stop something from happening) or for declaratory relief (asking the court to determine a legal obligation). These non-money damage claims are not restricted by statutes of limitations.

The distinction is very important where you are attacking the validity of an old judgment entered against you. It may be that you were not properly served, that your identity was hacked, or that the process of taking a judgment against you was somehow improper or unfair. It may be years before you discover the existence of the judgment on your credit report, or perhaps when you move to a new job.

The recent case of Murray v. Midland Funding makes clear that your demand for a declaration that an old judgment is void or unenforceable is not subject to a three year limitation- it can be brought at any time. In language cited by the Maryland Court of Special Appeals,
although it is not necessary to take any steps to have a void judgment reversed or vacated, it is open to attack or impeachment in any proceeding, direct or collateral, and at any time or place, at least where the invalidity appears upon the face of the record.
But if you want money damages for the judgment creditor's wrongful conduct in taking the judgment in the first place, you will have to deal with the statute of limitations. It is entirely possible that your claim for money damages will be too late, but you may still prevail on a declaration that the judgment is void and not enforceable.

It is always worth the time and effort to attack an old judgment wrongly taken.