ABRAHAM v. T. HENRY CONST., INC.

(CC CV06060031; CA A136228; SC S058073 (Control), S058101).

249 P.3d 534 (2011)

350 Or. 29

Richard ABRAHAM and Janice Abraham, husband and wife, as trustees for the Richard D. Abraham and Janice M. Abraham Trust, Respondents on Review, v. T. HENRY CONSTRUCTION, INC., an Oregon corporation; Stelmen Plastering, Inc., an Oregon Corporation; Northwest Gutter Service, Inc., an Oregon corporation; Milgard Manufacturing, Inc., a Washington corporation; Steve Pfenning Construction, Inc., an Oregon corporation; David Farwell, an individual, dba David Farwell Masonry and David Oregon Farwell; One Cut Carpentry, LLC, fka One Cut Carpentry, Inc., aka Herold's Carpentry; and Maddox Enterprise, Inc., an Oregon corporation, Defendants, and Keith A. Lucas, an individual, dba Keith Lucas Development Properties, Petitioner on Review, and Kevin G. Mayo, an individual, dba KGM Construction, Petitioner on Review. Keith A. Lucas, dba Keith Lucas Development Properties, Third-Party Plaintiff, v. Energy Products, Inc., an Oregon corporation, dba NW Builders Wholesale; Ronald L. Hardy, dba Hardy Plumbing & Heating; JB Insulation, Inc., an Oregon corporation; Kirk's Construction Unlimited, an Oregon corporation; Milwaukie Plumbing Co., an Oregon corporation, dba MP Plumbing Co.; Tom Pacheco, fka Tom D. Pacheco Masonry; and Mel Wielrich, Third-Party Defendants.

Supreme Court of Oregon.

Decided March 10, 2011.


Attorney(s) appearing for the Case

Matthew J. Kalmanson , Hoffman, Hart & Wagner, LLP, Portland, argued the cause for petitioners on review and filed the briefs for petitioner on review Keith A. Lucas. With him on the briefs was Janet M. Schroer . Kenneth L. Walhood , Blunck & Walhood, LLC, West Linn, filed the briefs for petitioner on review Kevin G. Mayo.

Maureen Leonard , Portland, argued the cause and filed the brief for respondents on review. With her on the brief were Robert K. Udziela , Portland, and Lisa T. Hunt , Portland.

Cody Hoesly , Larkins Vacura LLP, Portland, and Travis Eiva , Corson & Johnson Law Firm, Eugene, filed the brief for amicus curiae Oregon Trial Lawyers Association.

Jon Chandler , Salem, filed the brief for amici curiae Oregon Home Builders Association and The National Association of Home Builders.

Before DE MUNIZ, Chief Justice, and DURHAM, BALMER, KISTLER, WALTERS, and LINDER, Justices.


BALMER, J.

This case requires us to address an issue left open in Harris v. Suniga, 344 Or. 301, 313, 180 P.3d 12 (2008): Whether a claim for property damage arising from construction defects may lie in tort, in addition to contract, when the homeowner and builder are in a contractual relationship. Plaintiffs hired defendants1 to build their house. Plaintiffs...

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