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RE: Engineering from Home - Protecting Perso

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You must be related to Keith Richards:o)

I think that Aas vs. Wm. Lyons is a perfect example. The court pounded the
spike in the wrong coffin (a phrase borrowed from Arnold Bookbinder,SE who
called me ten minutes after reading the courts decision while on vacation in
Palm Springs). While the builder is now free disregard building codes and
construction documents, the homeowner must disclose deficiencies and take
the loss in the end. Like a car, the home depreciates the moment the
certificate of occupancy is issued.

Most complaints are not brought on by individual homeowners - there is much
more money to be made dealing with Home Owners Associations (HOA). While I
don't work primarily as an expert witness I have been hired by HOA's to
evaluate the claims of Attorneys and preliminary reports. There are more
twists and turns than the crookest street in San Francisco and few of them
are in the best interest of the homeowners.

Aas was an unusual case as before the case was tried in the Superior Court
it was agreed that the list of all structural and code defects would be
excluded from admission. It was reasoned that the list of defects provided
an unfair advantage for the Plaintiff. The court reasoned that a home is a
product and can not be considered defective unless there has either been
damage or injury attached to the claims. However, unlike product claims,
homes are constructed to codes which are intended to anticipate the damage
and injury and mitigate or reduce the potential by compliance to a minimum
building standard. The court argued that as a product, claims of defects are
contractual arguments and must be tried on compliance to the builders
written warranty. Inasmuch as many of the structural deficiencies are
intended to protect against lateral failure in earthquakes, or high winds,
the builder has an opportunity to chance luck and hope that his shoddy work
does not produce damage before an earthquake can. If he outlasts the
warranty period, he walks away free from legal responsibility unless it can
be proven that he purposely intended to defraud the building owner.

One of the problems in construction litigation cases is the challenging of
expert witnesses representing each side. How can both witnesses be providing
truthful testimony unless the rhetoric of the law is ambiguous from the
start and invites interpretation in the courts. It's also likely that one or
both witnesses will bias their testimony in favor of those paying the bills.
I don't work as an expert witness, but have been hired to review
depositions. It is disturbing to read opinions that "twist" the
interpretation of the code by someone you have respected for years who is
walking a thin line.

I understand the SEAOC is supporting the proposition of creating an
independent panel of experts who will establish a "tribunal" hired by the
court to review the merits of the case and establish an unbiased opinion of
the facts presented. While not a perfect solution it certainly beats
conflicting witnesses.

The other issue is the defendants insurance company. As long as it remains
cheaper to settle out of court than to litigate, the preverbal "pot of gold"
remains open and unprotected. However, if the case is required to be
reviewed by the tribunal first to determine an unbiased merit to the case,
it may remove some of the incentive to pursue a case.

Legal reform is needed in California as the problem is not, in my opinion,
the homeowner or HOA's but rather the ease in which claims can be filed
against anyone regardless of motivation. If the "tribunal" decides the case
has no merit, the plaintiff should be required to pay a penalty such as the
courts cost for the tribunal and then some.

Take away the incentive for abuse and all that can remain is the desire to
satisfy a legitimate case where both parties have strong arguments to
support their claims or defend their position.

Dennis S. Wish, PE
Structural Engineering Consultant
structures(--nospam--at) <mailto:structures(--nospam--at)>
(208) 361-5447 E-Fax

> -----Original Message-----
> From: George Richards, P.E. [mailto:george(--nospam--at)]
> Sent: Monday, April 02, 2001 5:13 PM
> To: 'seaint(--nospam--at)'
> Subject: RE: Engineering from Home - Protecting Perso
> Dennis et al:
> Respectfully - please reread your post then think back to Aas v. William
> Lyon that you discussed earlier this year.  My understanding is that the
> courts in California are tired of all the BS cases relative to
> home building
> and their ruling in Aas is how the are trying to put a stop to it.
> I have insurance because our clients demand it and are willing to pay for
> it.  The cost of the lawsuits that comes with the insurance are
> then just a
> part of the overhead.  To quote "The Godfather" 'It is simply business.'
> It is nice to see people posting about business and personal
> issues and not
> just how many kips can dance on the head of an anchor bolt.  See recent
> threads about "Disappointed Engineer." This is a great profession for the
> mental stimulus, but not so great on the money end relative to other
> professions.  Bill's questions show that we can think money in
> this business
> and have our fun too.
> Again no disrespect intended here to anyone, George Richards, P.E.
> -----Original Message-----
> From: Structuralist [mailto:dennis.wish(--nospam--at)]
> Sent: Monday, April 02, 2001 4:12 PM
> To: seaint(--nospam--at)
> Subject: RE: Engineering from Home - Protecting Perso
> Bill,
> According to "an attorney friend" in California, a Chapter S
> corp. will not
> protect you from having personal assets taken during a law suit. The
> rational is that the courts recognize that many have incorporated with the
> sole purpose of protecting personal assets and you are a sole proprietor
> firm, your home and possessions are not protected by a Chapter S
> Corporation. I don't know if this is true of other Corporations. I ended a
> Chapter S Corporation (which was a nightmare to close out an
> dragged on for
> about four years with a minimum payment of $800.00 each year for nothing)
> because it would not protect me.
> I agree with Fountain about going "bare". There is too much corruption in
> the legal industry where it is too easy to profit from frivolous suits.
> Lawyers are not willing to go after your personal assets as they are much
> harder to obtain and requires much greater expense on the lawyers side.
> You might look into legal "trusts" to protect personal assets. I am not an
> expert here and am just learning about establishing trusts for family
> members. There may be a way to protect assets by establishing
> some kind of a
> family trust.
> Dennis
> > -----Original Message-----
> > From: Bill Polhemus [mailto:bill(--nospam--at)]
> > Sent: Monday, April 02, 2001 11:44 AM
> > To: seaint(--nospam--at)
> > Subject: RE: Engineering from Home - Protecting Perso
> >
> >
> > I am going to incorporate based on information gained from a
> > small business
> > development course I have been taking through the University of Houston.
> >
> > The fact is, a corporation WILL protect you from lawsuits,
> particularly of
> > the frivolous kind, because the corporation will be the entity
> > that is sued,
> > not you personally.
> >
> > Also, while you're right that you can't "contract away
> > negligence", the fact
> > is that MOST lawsuits, and MOST jury awards, are for "frivolous
> > reasons". If
> > you are at fault, you're at fault. But such a setup will prevent someone
> > with a brief for just "getting" you for whatever reason, from
> coming away
> > with anything of value.
> >
> > A Subchapter "S" seems to be fairly easy to set up, and does
> not penalize
> > you unduly from taxes.
> >
> > William L. Polhemus, Jr., P.E.
> > Polhemus Engineering Company
> > Katy, Texas
> > Phone 281-492-2251
> > Fax 281-492-8203
> >
> >
> > -----Original Message-----
> > From: Roger Turk [mailto:73527.1356(--nospam--at)]
> > Sent: Monday, April 02, 2001 3:19 PM
> > To: seaint(--nospam--at)
> > Subject: Engineering from Home - Protecting Perso
> >
> >
> > Michelle,
> >
> > Unless your "corporation" is the registered structural engineer, the
> > corporation does not protect anything.
> >
> >
> >