Last year on this day, I wrote about Earth Day with at least some degree of optimism.

As I sit down this morning, though, the environmental picture looks less than robust.

Because a Flagstaff newspaper reflects my own outlook this week, I share an editorial from them.

“Earth Day 2011 … takes place amid a cloud of disappointment over a year that, by most benchmarks, seemed to take more steps backward than forward. The three biggest threats to global survival—non-renewable fuel use in transportation, power production and agriculture—seem more ominous than ever.

“If Earth Day is to be more than a once-a-year pep rally for a greener planet, it has to engage head-on the debate over jobs and a sustainable environment. Public education, at some point, must be tied to realistic political strategies that appeal to more than just the converted.”

Read the Daily Sun’s complete piece here.

Arizona Attorney Magazine, March 2011

Sometimes you plan. And sometimes you’re lucky.

This week, the latter strategy benefited us here at the State Bar of Arizona. And I think it benefits Arizona lawyers too. It is the wonderful coincidence of Arizona Attorney Magazine articles and a pending CLE on the identical topic.

My confession of fortune’s guiding hand has to do with what looks like a terrific CLE tomorrow (yes, tomorrow!). It is on the topic of the economic loss rule.

Wait, WAIT! Don’t hit the Back button. Bear with me. The ELR is seriously cool stuff, especially here in Arizona. And especially when it is illustrated by experts.

The CLE comes on the heels of our March issue coverage of the ELR case that arose in Flagstaff and went all the way to the Arizona Supreme Court: Flagstaff Affordable Housing LP v. Design Alliance Inc. The CLE panelists will be:

  • Arizona Vice Chief Justice Andrew Hurwitz
  • Hon. John Gemmill, Arizona Court of Appeals
  • Hon. Eddward Ballinger, Superior Court for Maricopa County
  • Hon. Sam Thumma, Superior Court for Maricopa County
  • Professor Ellen Bublick, Univ. of Arizona James E. Rogers College of Law

Here is the link to the seminar. Click it now, while the ELR rapture has you in its talons. To hesitate and perhaps surf away would be to condemn yourself to forever misunderstanding the odd admixture of tort and contract that the Supreme Court had to address. Don’t do that to yourself. Click. Click. Click.

Our magazine stories were not written by any honorables, just by practicing lawyers: Tom Lordan and Craig LaChance. But I still urge you to read their take on the ELR. I think their articles are the kind that you rip out of the magazine and save for a rainy, ELR day, when your client is faced with a similar situation. They are just that good.

(I can hear you asking now: Which came first—the magazine articles or the CLE? Tsk tsk; that is not the point. This is not a competition. We are not engaged in a ragtag dash to an educational finish line. Sure, I could note that our articles’ genesis was long ago, back to last summer or fall. And that our authors drafted and redrafted until their work achieved a certain gem-like quality. And only then were we agreed that publication would serve Arizona’s legal profession. I’m sure the CLE Department could say the same about Friday’s blockbuster program. So please, do not sow rancor between a record-breaking CLE Department and an award-winning magazine. It’s unseemly.)

To help you understand the ELR, here is our introduction to our March issue special feature. And don’t forget to CLICK.

Contract 1, Tort 0

Flagstaff Affordable Housing and Certain Design Defects

An Arizona city was the location for last year’s noteworthy development in how courts will construe the economic loss rule. 

When a unanimous Arizona Supreme Court decided Flagstaff Affordable Housing Limited Partnership v. Design Alliance, Inc.  last February, it applied the economic loss rule to bar a construction-related claim for the first time. 

In the case, an owner set out to construct affordable residential housing that would comply with accessibility guidelines established in the Fair Housing Act. The owner hired an architect to develop plans that met the guidelines. Upon review, the U.S. Department of Housing and Urban Development determined that it failed to comply, and sued the owner. 

HUD and the owner eventually settled—which is when the owner sued the architect for negligent design, seeking recovery of its costs in complying with HUD’s requirements.

Ultimately, the Supreme Court remanded the case to the Superior Court to determine whether the contract preserved tort remedies. The Court reasoned that in construction defect cases involving only repair and replacement of the construction work itself—not personal injury, death or other property damage—there are no strong policy reasons to impose common law tort liability in addition to contractual remedies.

The following articles describe the case in more detail, and they point to business consequences that may flow from it.