Pulver v. Kane, 3:20-cv-00673

Background

Pulver Construction (Pulver) was the contractor for a new residence for Lakeshore LLC (Barry and Anna Kane); Lakeshore counterclaimed alleging construction defects.
Pulver filed third-party claims against design professionals A&E Architects, P.C. (A&E) and Reno Tahoe Geo Associates, Inc. (RTGA) for negligence, breach of implied warranties, contribution, implied indemnity, breach of contract (RTGA only), and a claim invoking NRS Chapter 40 procedures.
A&E moved to dismiss all claims against it; RTGA moved to dismiss all but its breach-of-contract claim.
The court held NRS Chapter 40 governs the claims but concluded the Chapter 40 pre-litigation notice requirements did not bar Pulver’s third-party suit because the contractor-filed lawsuit exception applied.
The court dismissed Pulver’s negligence, implied indemnity, contribution, and breach-of-implied-warranties claims (all claims against A&E and five of six claims against RTGA) with prejudice, finding the claims fail as a matter of law.

Issues

Issue	Pulver's Argument	Design Defs' Argument	Held
Applicability & notice under NRS Ch. 40	NRS Ch. 40 governs but notice to design pros not required because contractor-filed suit triggers exception	A&E: Pulver failed to provide the §40.646 notice to design professionals and claims are barred	NRS Ch. 40 applies; notice not required here because §40.645(4)(a) exception applies when contractor files first
Economic-loss doctrine and negligence	Contractor may assert tort claims in residential Chapter 40 context; Olson exception applies	Design Defs: Calloway/Terracon bar tort recovery for pure economic loss; Olson homeowner exception doesn’t extend to contractors	Court predicts Nevada Supreme Court would apply economic-loss doctrine to design pros in residential cases and Olson does not protect a contractor; negligence dismissed
Implied indemnity & contribution	Claims arise from contractual relations and negligence allocation	Design Defs: These are tort-based and fail if negligence barred	Because underlying negligence is barred, contribution and implied indemnity (equitable indemnity) fail and are dismissed
Breach of implied warranties against design pros	Implied warranty of workmanship should extend to design pros under Nevada law	Design Defs: Majority rule rejects implied warranty for services of design professionals	Court predicts Nevada would follow majority/California view and dismiss implied-warranty claims against design professionals
Separate NRS Ch. 40 cause of action	Pulver included a Chapter 40-labeled claim and submitted expert affidavits to satisfy §40.6884	Design Defs: Chapter 40 does not create a standalone cause of action	Court treated the allegations and filings as satisfying §40.6884 but dismissed the Chapter 40-labeled claim as not a separate cause of action

Key Cases Cited

Lamie v. U.S. Trustee, 540 U.S. 526 (2004) (courts enforce plain statutory language).
Calloway v. City of Reno, 993 P.2d 1259 (Nev. 2000) (economic-loss doctrine bars tort recovery for purely economic losses in construction defect cases).
Olson v. Richard, 89 P.3d 31 (Nev. 2004) (carved out homeowner exception to Calloway for Chapter 40 homeowner claimants).
Terracon Consultants W., Inc. v. Mandalay Resort Grp., 206 P.3d 81 (Nev. 2009) (extended economic-loss doctrine to design professionals in commercial construction; left residential/Chapter 40 question open).
The Doctors Co. v. Vincent, 98 P.3d 681 (Nev. 2004) (describing contribution and implied indemnity as equitable tort remedies).
Halcrow, Inc. v. Eighth Jud. Dist. Ct., 302 P.3d 1148 (Nev. 2013) (equitable indemnity/contribution fail where economic-loss doctrine bars negligence).
KB Home Nevada Inc. v. Dunrite Constr., Inc., 402 P.3d 1253 (Nev. 2017) (discussing implied warranty of workmanship in Nevada jurisprudence).
Barrett v. Eighth Jud. Dist. Ct., 331 P.3d 892 (Nev. 2014) (NRS §40.690 governs pre‑litigation Chapter 40 proceedings like mediation, not district court proceedings).