Gray•Duffy secures dismissal of swimming pool designer/contractor in contentious construction defect litigation

December 2017

Overview

After the homeowner’s expert evidence demonstrates that there were little to no issues with the pool work done by the firm’s client, the general contractor reluctantly agreed to simply dismiss the client without any contribution toward the settlement with the homeowner.

Discussion

Graw vs. Brandanini This was a construction defect lawsuit brought in the Marin County Superior Court. The lawsuit arose out of landscaping and construction of a backyard and a swimming pool at the property owned by Kimberly Kraemer and Marc Watrous (the “Homeowners”) located in Larkspur, California. Our client, Marco Perrella/Marco Design Group designed and installed the swimming pool. The plaintiff, Gary Graw dba Marin Landscape Management (MLM) was the general contractor on the project and did all of the construction except for the swimming pool. James Brandanini and Brandanini & Associates were the landscape architects for the project. Procedurally, this case was somewhat unusual in that the Homeowners had made complaints against MLM and pursuant to the Contract between the parties demanded arbitration. As neither our client nor the Brandanini defendants were parties to that contract, neither was part of the Arbitration. Early on, we received an expert report from the Homeowner’s expert. At best, there were only minor claims relating to the construction of the swimming pool. The Homeowners’ counsel made it clear that the Homeowners were satisfied with the work performed by our client and did not intend to pursue them in litigation. Thus, we took a strong position against MLM in the Marin County Superior Court action. Ultimately, the Homeowners and MLM proceeded through the first day of the Arbitration (on a Friday). Over that weekend the Arbitration was settled. Both before the Arbitration and confirmed after the Arbitration, MLM agreed to dismiss the Complaint against Gray•Duffy’s clients, due to lack of evidence. After the Arbitration was completed, MLM filed a dismissal of the complaint without prejudice as to our clients. Thus, this matter was resolved without a payment on behalf of Marco Design Group by taking a strong position on the liability aspects of the case which was supported by the Homeowners’ expert and the Homeowners themselves.

Please Note: This article is necessarily general in nature and is not a substitute for legal advice with respect to any particular case. Readers should consult with an attorney before taking any action affecting their interests.