Is My Drywall Chinese? - HB Litigation Conferences

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What Are The Defenses? Economic Loss Doctrine DEFENSES – Recognized in several states, including Florida and most other states states facing drywall litigation except Louisiana, which permits recovery for economic loss. – Generally prohibits tort recovery when a product damages itself, causing economic loss, but does not cause personal injury or damage to any any property other than itself. See East River Steamship Corp. v. Delaval, Inc., Inc. , 476 U.S. 858 (1986). – Applies "only in circumstances where the parties are either in contractual contractual privity or the defendant is a manufacturer or distributor of a product." product." See Indemnity Ins. Co. v. Am. Aviation, Aviation, 891 So. 2d 532 (Fla. 2004). – Homeowner may not sue under tort for purely economic losses when there are contractual remedies. Fraudulent inducement is an exception to this general rule, but the rule still applies when the fraud alleged is in the performance of a contract. – Most notably applies between homeowners and home builders, but may may also apply between other parties.
DEFENSES Florida - Economic Waste Doctrine Florida – Cost to correct the defect was not the proper measure of damages; rather, the measure of damages should be the difference between the value of the home as it was delivered compared with the value of the home as it should have been delivered. See Heine v. Parent Construction, Inc., Inc. , 4 So. 3d 790 (Fla. 4th DCA 2009) Causation DEFENSES Causation – Particularly relevant with respect to personal injury claims Attempt to establish that the drywall was not the proximate cause of the damages Establish through medical experts Daubert challenges
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HB Litigation Conferences Presents
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FACULTY Jeremy Alters is the foundi
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works include FasTrain: Florida Civ
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a Superfund case that resulted in a
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clerk in the United States District
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The “Writing On The Wall”: Impo
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STATES WHERE IMPORTED DRYWALL HAS B
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Florida Reports of Drywall “Cases
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STATE RESPOND ● Florida ● Louis
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Glenn Cambre, Esq. Director Directo
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PHONE SURVEY INFORMATION: Identifie
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LOUISIANA DRYWALL IMPACT MAPS 6/17/
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FLORIDA VS LOUISIANA DRYWALL • Fl
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Remediation Standard? ● Presently
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Chairman Pryor, Ranking Member Wick
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the German manufacturer, Knauf, onl
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companies, the homeowners, and the
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Chinese drywall spins off 'silent h
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The EPA said these results are not
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Get out of house with Chinese drywa
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The Consumer Product Safety Commiss
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“We’re trying to get the federa
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claims, but it's still a significan
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Imported Drywall and Health - A Gui
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Who is at risk? • insomnia • he
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"The Writing Is on the Wall": Defec
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significant indemnification or cont
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The Walls Are Closing In: Chinese D
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An Introduction to Our Firm Duane M
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• Utilizing the Construction Grou
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Occupational Safety and Health Act
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The Walls Are Closing In: Chinese D
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"The Writing Is on the Wall": Defec
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significant indemnification or cont
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Sheila Raftery Wiggins, Partner Dua
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Real Estate Litigation • Represen
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Selected Publications • "The Wall
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TRIGGER OF COVERAGE cont. 2. “Rel
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TRIGGER OF COVERAGE cont. 6. Triple
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OTHER CONSIDERATIONS • Deductible
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*Overused and Overwrought Metaphor?
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Reduced Sulfur Compounds are Diffic
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Analysis Methods— Electrochemical
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Conc. (ppmv) 1.0 0.9 0.8 0.7 0.6 0.
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Key Reactions* • H2S + H2O + M =
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Chemistry of Emissions from Drywall
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What is Damaged? Problems we’re s
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Copper Wires Blacken Paul G. Philli
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Pitted Bath Tub Stoppers Paul G. Ph
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What MAY BE Damaged Problems we’r
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What’s Reportedly Damaged Other p
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Black Copper Sulfide TYPICAL BLACKE
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Reaction Progresses Paul G. Phillip
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COATED COIL IS ALL BLACK Open Quest
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PUSH-IN WIRING CONNECTION Open Ques
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Open Questions • How and where ar
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Outline Chinese Drywall A Practical
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Is My Drywall Chinese? b) Visual Ap
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Is My Drywall Chinese? Is My Drywal
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Is My Drywall Chinese? • To Test
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Costs Risk Management 101 • Lesso
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Can This Get Any Worse? • Emergin
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The Expected Primary Defense: “Po
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Revisions to the “APE APE” Demo
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Cases Interpreting the Pollution Ex
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Other Issues Additional coverage pa
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contradicts the plain language and
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partial off-site exclusion for some
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With respect to the new, absolute p
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Even when courts find that an APE s
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Setting aside expectations of cover
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The LDI’s Advisory Letter warned
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Decisions by the High Courts in Cal
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interpretation comports with the AP
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exclusion should not reflexively be
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The court in Koloms criticized the
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ingestion of lead paint debris foun
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that reject coverage for non-enviro
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Survey of Appellate Court Decisions
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State Limiting Exclusion to “Indu
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State Limiting Exclusion to “Indu
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L:\MASTERLS\Seminar\HB Chinese Dryw
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OCCURRENCE “Property Damage”
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OCCURRENCE Majority View: Liabili
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CHOICE OF LAW Starting point for c
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CHOICE OF LAW “Significant Conta
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Which Contractors Will Be Covered b
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Which Contractors Will Be Covered b
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that has not been physically injure
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In sum, in most states the damage c
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the several Chinese drywall claims
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V. The “Absolute Pollution Exclus
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to test for, monitor, clean up, rem
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spraying of pesticide in apartment
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exclusion are not met because the
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VI. Choice of Law As discussed abov
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homes containing Chinese drywall ar
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“legally obligated to pay as dama
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By: Veronica M. Bates TRIGGER OF CO
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TRIGGER OF COVERAGE cont. 4. “Inj
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ALLOCATION 1. Pro Rata • Time on
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Chinese Drywall Litigation NELSON
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NELSON • LEVINE • de LUCA & HOR
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Additional Insured Issues • The m
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Additional Insured Issues • 2004
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Subrogation Opportunities Targets a
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Subrogation Opportunities • Contr
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Subrogation Opportunities • Hurdl
Page 348 and 349: Liability Issues Hugh J. Turner Jr.
Page 350 and 351: Manufacturers • Knauf Gips, KG (e
Page 352 and 353: Suppliers 84 Lumber Co. All Flori
Page 354 and 355: Drywall Lawsuit Models • Type 1:
Page 357: Express Warranty • Elements - Exp
Page 360 and 361: Medical Monitoring • Elements: -
Page 362 and 363: Vicarious Liability A corporation
Page 366 and 367: DEFENSES Florida - Strict Liabilit
Page 368 and 369: DEFENSES Lack of Privity of Contra
Page 370 and 371: What Are The Current Issues In The
Page 372 and 373: Current Issues • Case Assignments
Page 374 and 375: Current Issues Insurance Coverage
Page 376 and 377: Issues In Florida • Chapter 558 R
Page 379 and 380: Chinese Drywall Conference Sander L
Page 381 and 382: Are Chinese Drywall Issues Similar
Page 383 and 384: Search for New Defendants • Contr
Page 385 and 386: How does Chinese drywall impact hom
Page 387 and 388: How does Chinese drywall impact hom
Page 389 and 390: Home H Value Over 10 Yeaars How doe
Page 391 and 392: Home H Value Over 10 Yeaars Home H
Page 393 and 394: Use of Mass Appraisal Models Event
Page 395 and 396: Use of Mass Appraisal Models Cross-
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Page 399 and 400: concern at the moment remain 2004
Page 401 and 402: able, in which case rather than a
Page 403 and 404: subject properties and the data use
Page 405 and 406: CHINESE DRYWALL LITIGATION UPDATE A
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Page 409 and 410: WHERE WAS THE CHINESE DRYWALL USED
Page 411 and 412: WHAT KIND OF EXPERTS YOU’LL NEED
Page 413 and 414: Hydrogen Sulfide Exposure • Belie
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BACKGROUND PROCEDURE MULTIDISTRICT
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that there is a much smaller chance
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applicable standard of liability. D
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RULES OF PROCEDURE OF THE JUDICIAL
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- 3 - transferred under Section 140
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- 5 - (c) Copies of motions for tra
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- 7 - (c) Once a corporate disclosu
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- 9 - designating such a pleading a
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RULE 7.6: TERMINATION AND REMAND In
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- 13 - (b) Each party filing a moti
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- 15 - (C) the circuit court of app
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UNITED STATES JUDICIAL PANEL ON MUL
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Drywall Common building material ty
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Chinese Drywall Analysis ( incomple
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Coal combustion residues Derived f
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Coal Mine Waste Coal may be sold a
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Coal Fly Ash Resident complaints E
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Skin Acne Skin rashes Hives Per
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Sensitive populations Infants Chi
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Carbon Disulfide Gas—evaporates
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Sulfur Dioxide Sulfur Dioxide An E
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SO 2 Symptoms of Chronic Exposure t
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Exposure to lower concentrations of
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GI Symptoms of H 2S Nausea Vomiti
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Particulate Matter Particulate Matt
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Airways of Lungs Lungs
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Clearance from the lungs is not cle
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Particles containing Heavy metals a
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Natural Decay Series: Uranium-238 U
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PAHs Benzo[a]pyrene Group 1 Human c
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Is My Drywall Chinese? - HB Litigation Conferences

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