Lawyer / Attorney - Las Vegas Region

June 2009 -- Verdict Obtained in Class Action Lawsuit against Plumber ($12,000 per Home -- $475,000 Total Plus $7,000 Already Recovered from Builder and IPEX)

To read article of favorable jury verdict in class action involving Kitec, click here. This action involved a suit by 40 homeowners against a plumber. The jury awarded roughly $12,000 per house for repairs, and $1,250 more per house than the homeowners sought. This recovery is in addition to $7,000 already recovered from the builder and IPEX. That makes the total recovery $19,000+ per house. That does not include attorney's fees, costs and contractual rights assigned to the homeowners by the builder, which will be sought through a motion filed with the Court. That could make the total recovery much more than $19,000 per house. This victory supports the amount sought for repairs in the Kitec action being prosecuted by this firm on behalf of 18 homeowners, where their repair costs range from $15,000 to $24,000. Despite those supported repair costs, Del Webb/Pulte refuse to offer a reasonable amount for repairs. Insead they offer less than $5,700 per home for repairs and nothing for attorney's fees and costs to which these homeowners are entitled under Chapter 40.

May 2009 -- Article about Del Webb/Pulte Suing M.C. Mojave Construction in Federal Court for Allegedly Interferring with Warranties and Promoting Litigation in Response to Class Action Lawsuit Against it for Defects at Sun City Anthem in Henderson, Nevada

In a case unrelated to the lawsuit filed by this firm on behalf of Sun City Anthem homeowners with Kitec defects, and to read an article about Del Webb/Pulte suing M.C. Mojave Construction in federal court for allegedly interferring with with warranties and promoting litigation in response to a class action lawsuit against it for defects at Sun City Anthem in Henderson, Nevada (click here)

April 23, 2009 -- Ruling by Department 22 on Homeowners' Motion for Leave to Amend Complaint

On April 23, 2009, Sun City Ahthem homeowners argued to the Clark County District Court, Department 22, that leave to amend their complaint should be granted so fraud and other tort claims can be asserted against Del Webb/Pulte for misrepresenting that their homes would have a PEX plumbing system instead of a Kitec one, which was defective and the subject of a nationwide recall in 2005. The Court denied the motion without prejudice, permitting the homeowners to conduct discovery to obtain more facts to support those claims. The homeowners argued that punitive damages are permitted in this construction defect case as personal injury claims are not subject to the construction defect statutes (they are expressly excluded by statute) and Del Webb/Pulte's non-compliance with Chapter 40 by making unreasonable and unsupported offers of $7,800 and not participating in mediation in good faith lifted the limitation on damages under the construction defect statutes. The Court said it would hear that issue later as more discovery is conducted. Del Webb/Pulte's motion to dismiss the homeowners' warranty claims was denied. In opposition to the motion which sought dismissal, the homeowners cited unconscionable and inconspicuous boilerplate contract provisions, buried in the middle of a thick sales agreement which Del Webb/Pulte contend waived all of these homeowners' warranty rights, even though Del Webb/Pulte was honoring warranty requests long past the 1-2 year written warranty period. Nevada law does not permit enfocement of such inconspicuous and unconsionable contract provisions, especially in an adhesion contract written by a builder and seller of a new home, as it violates due process.

April 2009 -- Sun City Anthem Homeowners Move to Amend Complaint to Sue Del Webb/Pulte for Fraud and Failure to Disclose Defects; and Del Webb/Pulte Seeks Dismissal of Homeowners' Warranty Claims, Claims for Punitive Damages and Naming of PN II, Inc. (Pulte/Pulte Homes of Nevada)

In April 2009, Sun City Anthem homeowners represented by this firm, who are suing Del Webb/Pulte for construction defects related to Kitec pipe fittings in their homes, moved to amend their complaint to add claims for fraud, misrepresentation and failure to disclose defects (click here to see motion). Del Webb Pulte opposed the motion and filed a counter-motion for summary judgment seeking dismissal of the homeowners' warranty claims, claims for punitive damages and their naming of PN II, Inc. (Pulte and Pulte Homes of Nevada), even though PN II, Inc./Pulte Homes is responsible for warranty work and assumed the liabilities of Del Webb (click here to see opposition/counter-motion Part 1 / Part 2). This firm filed a reply and opposition to the motion for summary judgment (click here to see reply/opposition). Del Webb/Pulte filed a reply in support of its counter-motion for summary judgment (click here to see reply). A hearing is set to proceed on April 21, 2009, at 8:30 a.m., in Department 22 (before Hon. Susan Johnson), in the Clark County District Court. Click here for map to courthouse.

The claims stem from Pulte failing to follow its approved plans which specified a hot/cold water system other than Kitec, and not disclosing to these senior homeowners that Kitec was installed, rather than the approved system, and that the water in Clark County would cause the inferior Kitec fittings installed to fail. During inspections and tests, these homeowners confirmed that their Kitec pipe fittings are failing and have evidence of corrosion. In response, Pulte is asserting that its warranties provided to these homeowners were waived in their purchase agreements. It claims that a provision buried in the purchase agreement acted to waive all of these homeowners' implied warranties. This is so even though the Nevada Contractors Board routinely enforces implied warranties up to four years and longer, even if a builder tries to limit its warranty to 1-2 years. Also, Pulte has been performing warranty work at these homes for 7-8 years and now tries to contend that its warranties were only good for 1-2 years. Since this is a common-interest community under NRS Chapter 116, these homeowners have heightened statutory warranties of quality, which cannot be easily waived. In fact, to be waived, they must be conspicuous and waived in a separate document signed by the homeowners. Also, each defect to be waived must be separately identified and Pulte/Del Webb, as the statutory Declarant for the community, had to explain the waiver and the limitations in a Public Offering Statement. This was not done and is a violation of NRS Chapter 116. This firm's plumbing/mechanical expert has testified through affidavit that the approved plans were violated by installing Kitec instead of PEX, a superior piping system not subject to the same failures as Kitec, and that Pulte knew, or should have known through the use of reasonable diligence, that the yellow brass Kitec connectors were prone to fail. That is fraud, misrepresentation, a failure to disclose defects and a breach of the covenant of good faith and fair dealing.

December 2008 -- Recent Newspaper Articles on Kitec Class Action

Read article in the Las Vegas Sun South Valley Home News dated December 4, 2008, where Neal Hyman and his clients are interviewed concerning their ongoing lawsuit against Pulte for defective Kitec pipe fittings (click here); to see video clip (click here); to see photos of defective Kitec pipe fittings (click here)

It has recently been reported by the Las Vegas Review Journal in an article dated November 28, 2008 (click here), based on interviews with class action counsel, that the settlements with IPEX and certain builders are "partial" settlements, meaning that litigation continues to recover more repair costs. They concede that enough money, even with the $90 million dollar settlement with IPEX (to read article on IPEX settlement by Las Vegas Review Journal dated October 25, 2008, click here), and settlement with Pulte (to read article by Las Vegas Sun dated November 9, 2008, click here), does not exist for proper and complete repairs. In fact, when dividing out the monies to be recovered for 35,000+ homes, after subtracting attorney's fees, expert fees and litigation costs, that leaves homeowners with roughly $4,000-$5,000 per house for repairs. In the class action, the homeowners do not receive the repair cost money. Rather, they are assigned a re-piping company (not a general contractor) to re-pipe the house at the administrator's convenience, which could be years away. Also, the homeowner is required to provide access, supervise and inspect. This is much different than hiring a general contractor to hire subcontractors and speciality trades, and to supervise, coordinate, schedule and inspect. Also, if homeowners have custom paint or wallcoverings, or granite in bathrooms or other unique features in their house, it is their responsibility (at their cost) to address those issues. No relocation costs are included in the class action settlements. Homeowners of one house represented by this firm had an emergency water leak, and a re-piping of his house was necessary. They retained a reputable and solid general contractor which hired speciality subcontractors to perform the repairs. The repairs took over two weeks and the homeowners were relocated. There were numerous inspections by the City. The costs amounted to roughly $22,000.00, with another $2,500 for relocation costs. The homeowners paid those costs out of pocket and they will be recovered from Pulte in this litigation. The newspaper article by the Las Vegas Review Journal dated November 28, 2008, on the class action states that parties in the class action are appealing the settlements. That could tie up payment of settlement funds on appeal for months or years. In the group homeowner Kitec defect case handled by this firm, a general contracting expert went into each house and estimated the repair costs ranging from $15,000 to $22,000. The repairs are based on repair recommendations from a mechanical engineer.

November 2008 -- Status on Kitec Construction Defect Lawsuit against Pulte

As many have heard and as was reported in newspapers, Pulte and IPEX have reached settlements in the Class Action involving 35,000+ homes in Clark County. While the settlement amounts seem like a lot of money, e.g., IPEX ($90 million dollars for 35,000+ homes) and Pulte ($23.6 million dollars for 4,200 homes), when you do the math, that only yields around $4,000-$5,000 per home, after attorney's fees and costs are deducted. Nevada Revised Statutes 40.600 et seq. require builders to pay attorney's fees and costs as damages "in addition to" repair costs. NRS 40.655. The Class Action is not governed by NRS 40.600 et seq.; rather, it is a products liability lawsuit where attorney's fees and costs must come out of the recovery. Pulte has never offered the homeowners in the lawsuit prosecuted by this firm anything above an arbitrary statutory offer that was made before the lawsuit was filed in the amount of $7,800, of which only $5,700 was for repair costs. Allegedly $2,100 was offered for attorney's fees and costs, but that was offered before homeowners had attorneys and before Pulte knew the amount of their attorney's fees and costs (an impossibility). That minimal amount was only offered even though Kitec was confirmed to exist in all homes and the homeowners have cost of repair estimates ranging from $18,000 to $22,000 per house. They are entitled to have a competent and licensed general contractor of their choice (with a clean NCB record, adequate insurance/warranty and a bond) perform the repairs. This is unlike the Class Action where the homeowners never see the settlement money, and have to take whatever repiping subcontractor (not a general contractor) the Class Action has available, or which has offered a "low bidder" group rate based on the mass volume of homes. Many of these repiping subcontractors are too busy to perform timely and complete repairs and have crawled out of the woodwork from other states just to get repiping jobs. Many do not have a proven track record (over a period of years) with repair or warranty work in Clark County. One house in the lawsuit prosecuted by this firm had a slab water leak due to defects and an emergency repiping of the house occurred. The homeowners had to pay for the repairs out-of-pocket and selected a competent and reputable general contractor in Clark County to perform the repairs. The repairs took two weeks, multiple inspections by the City occurred and the homeowners relocated during the repairs. The actual cost to repipe the house was $22,000.00, and the homeowners are seeking reimbursement from Pulte in this lawsuit. The homeowners have tried several times to mediate and settle with Pulte, but 'no' offers were made and everything has been done to drive up the expert and testing costs. When homeowners were forced to cut open drywall to confirm that Kitec existed in all homes (Pulte refused to stipulate), Kitec was confirmed and evidence of corrosion existed. Now IPEX wants to take apart water heaters and water softeners to test "non-Kitec" parts so it can say that all plumbing parts are subject to corrosion -- not just Kitec. While that 'might' be some sort of defense between Pulte and IPEX, in the construction defect case prosecuted by this firm against Pulte (IPEX was not sued by the homeowners in this lawsuit), it cannot be a defense as Pulte violated its own approved plans by specificing and installing Kitec (or a pipe fitting with similar material composition as Kitec) when it was not approved by the City. That is a design construction defect under NRS 40.600 et seq. (NRS 40.615) and Pulte is liable for breach of warranty, negligence and failure to disclosure. Those claims could subject it to punitive damages for failing to disclose known defects when selling homes.

Individual Representation for Defective Kitec Pipe Fittings by Pulte at Sun City Anthem

Neal Hyman is representing numerous homeowners (19 Homes) in Sun City Anthem, which is located in Henderson, Nevada. They are being represented individually rather than a large class action which is pending in the Clark County District Court. He has served individual Chapter 40 Notices for each homeowner and each individual house. That is a great advantage for the homeowners as they each get individual legal representation and an individual say of how their claim proceeds and how it is resolved. However, they have the strength and unity of a group. Most homeowners want to give the builder/developer ("Pulte") an opportunity to repair the houses properly. The main defect allegation is that Kitec water pipe fittings are defective. Based on expert opinions, including those of a plumbing/mechanical engineer, a general contracting expert a metallurgical engineer and re-piping companies, there is a reasonable probability that the pipe fittings are defective or will fail in the future, if they have not already, and that repairs will be required if that happens. As such, experts on behalf of the homeowners have determined that the houses should be repaired using a proper and approved pipe fitting. The most feasible and economical way to achieve such a repair is a complete re-piping. The scope of repair can differ from house to house based on fixtures, square footage, configuratation and upgrades. Costs could be increased due to hard to reach areas. The repairs could require relocating homeowners for several days (or weeks), protecting funishings and personal property and compensating them for living and lodging expenses. Also, drywall must be removed and replaced, re-textured and re-painted. Some homeowners have upgraded or custom fixtures and furnishings which must be protected or replaced. Pulte has proposed a partial and incomplete repair which does not include all the factors previously mentioned. Although those partial and incomplete repairs might be cheaper and easier to perform, it will not make the homeowners whole. Some re-piping companies have proposed using all copper pipes, which increases the costs.

Pulte has made a monetary offer of $7,800 to some homeowners who are part of the class action, and also the homeowners represented by this firm. Those offers, after a mediation, were rejected as being too low and unreasonable. In the opinion of homeowners and expert cost estimators on behalf of homeowners, that amount is insufficient to have the complete and proper repair performed. Based on our experts, repair costs through a licensed and reputable general contractor will cost $20,000 or more. Also, they did not include all of the homeowners' Chapter 40 entitlements, e.g., attorney's fees, expert fees and costs. Further, Pulte has put homeowners in contact with two contractors (or subcontractors) who claim they can do the repairs for that amount. While that 'might' be true, we have heard these two companies do not have the employees or resources to repair so many houses in a reasonable period of time. Also, for the amount of money offered, homeowners might be precluded from hiring a licensed general contractor (reconstruction contractor) who is qualified and experienced in performing retroactive repairs to existing houses. There are many in town who have proven track records for these kind of repairs and this firm has contacts with all of them. Hiring one of them to perform repair work will take the burden off of homeowners to supervise, oversee, inspect, schedule and coordinate construction and will relieve the stress of not knowing whether two small contractors (or subcontractors) can do the job properly, efficiently and without damaging the house. The reconstruction general contractors mentioned are licensed with the Nevada Contractor's Board and have sufficient insurance, bonds, employees, subcontractors and resources to perform the work quickly, efficiently and competently. They have also been licensed in Nevada for many years as opposed to some companies which just moved here to perform Kitec repairs. Hiring a general contractor usually costs more than hiring individual contractors (or subcontractors) to perform piece-meal work over a long period of time, but the beneifits gained are substantial. The reconstruction contractors mentioned offer complete warranties and have service departments which respond quickly and without resistence or excuses. In the opinion of experts for homeowners, the money offered does not factor in different plan sizes and types, custom paint, wallcovering or moving mirrors/granite/marble.

The homeowners represented by this firm gave Pulte 90 days to inspect their houses and make a Chapter 40 offer, which could have included: completely repairing the house, paying a third-party general contractor (reconstruction contractor agreed to by the homeowners) to perform the work or monetary compensation, or a combination of all three. Only an insufficient monetary offer was made, one which did not include all of the statutory entitlements. The homeowners represented by this firm all wanted repairs, but they were not offered by Pulte. A required mediation occurred. Without any other option, the homeowners recently filed a lawsuit against Pulte. In turn, Pulte sued IPEX and Cox Plumbing.

Now that a lawsuit has been filed against Pulte on behalf of 19 homes and their homeowners, it is separate and apart from the class action. By proceeding as individuals with this firm, the homeowners control their own claim and decide how it should settle or proceed.

The class action involves various other communities totaling 35,000 - 50,000 houses, not just Sun City Anthem. Being individually represented by this firm helps protect individual rights, control of how the claim is handled and any settlement will be based on the individual situation and house and its unique characteristics.

We have heard that some builders in the class action have settled, but the homeowners do not receive any money. Rather, they are provided an allotment of around $5,000 to repair their homes, and must use one of the approved repiping subcontractors. Also, the time when repairs will begin is uncertain and could take a year or long. Warranties on labor and workmanship are limited and the homeowner is responsible for providing access and supervising the repairs -- rather than having a licensed and competent general contractor do so.