- In the recent decision of Liberty Mutual v. Brookfield, the California Court of Appeal held that California's Right To Repair Act, Civil Code section 895 et seq.  ("Act"), does not provide the exclusive remedy for construction defect matters, and that the Act does nothing to limit common law rights and remedies in cases where actual property damage has occurred.   

The construction defect at the center of this case was a broken plumbing pipe in a home constructed by Brookfield Crystal Cove, LLC ("Brookfield").  Although Brookfield repaired the pipe and resulting damage, the homeowner's insurance carrier incurred expenses for temporary relocation of the homeowner while repairs were performed.  The insurance carrier then sued Brookfield in subrogation to recover those expenses.

Since the adoption of the Act in 2003, the provisions of the Act have been considered the sole remedy for construction defect cases and included various timelines for bringing claims that are shorter than the traditional ten-year period for latent defects.  The Act also created standards for recovery that no longer required a showing of property damage.  The Court reviewed the Act and its legislative history and found there was nothing to support the contention that the Act barred common law claims for actual property damage.  The Court found that the legislative history showed that the Act was intended to grant statutory rights in cases where construction defects caused only economic damages.  The Court further stated that a homeowner who suffers actual damage as a result of a construction defect has a choice of remedies and nothing in the Act takes that away.

Under this ruling, it is now clear that homeowners who suffer actual property damage may choose to follow the provisions of the Act or may choose to proceed with other applicable remedies available in common law, statutory law and case law.

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