Construction Litigation

Building owner, a small, rural school district, built a performing arts facility that was the envy of all districts and the proud symbol of the community.  The building owner noticed discoloration of its glazed tile exterior.  The architect had specified a red colored glazed tile which was manufactured by several companies. This was more than one year after the construction had been completed and all parties paid in full.  The law firm was engaged to look into the reason for the discoloration.

The law firm obtained all the construction documents and engaged the services of a forensic expert to determine the cause or causes of the discoloration and to recommend what action to take.  The plans and specifications for construction of the exterior wall of the building (a performing arts center which had received an award for the architectural design) called for an interior wythe and an exterior wythe.  The interior wythe required a standard covering to serve as a moisture barrier. The exterior wythe specifications mirrored the specifications of several manufacturers glazed exterior tile, including: (1) covering of the product during construction to avoid moisture, (2) special grout and (3).  The mason subcontractor admitted not reviewing the specifications.  The forensic expert testified at deposition that the cause of the discoloration was

In order to select the best option to prevent the further deterioration of the grout and the  glaze tile, the building owner obtained bids on three options: (1) re-grouting the glazed block and painting over the glaze, (2) removing the block and replacing and (3) overlaying a colored aluminum based product over the entire surface of the building.

There were other problems with the building including architectural design and HVAC systems design and installation.

The law firm played an essential role in mustering the expert resources to identify the problems in the design and construction.

Building Owner was advised by the well-intended that unless all operations ceased and all employees (close to 100) moved out, owner was probably subjecting itself to very serious money damage claims.  Forensic experts had found that the Exterior Insulation Finishing System (EIFS) had been improperly installed and was permitting moisture to enter the building envelope.  This had resulted in various areas in the building reporting mold.

Because the EIFS construction had been completed some ten years prior, the owner faced all sorts of limitations. Nonetheless, its lawyers successfully recovered some money from a combination of the original subcontractors. A small recovery was also made from the owner’s fire and casualty insurer. Getting the case to mediation took some 2-3 years and during all the while, the owner had made no use of the building and was paid rent.

Frustrated with an abandoned building and paying substantial rent, the board of directors of the owner consulted the law firm.  Some directors, relying on the previous forensic studies recommended tearing the building and rebuilding or selling the property all together.  The law firm recommended a procedure for evaluation of the building and development of options.  Requests for proposals for forensic experts were made and from several respondents the owner engaged a firm with architectural and engineering capability. The new forensic firm addressed the options under consideration by the board of directors and advised that the structure of the building was sound and that much of the perimeter metal work could also be used.  The roof did require replacement.

Eventually a demolition contractor was hired, the mold was removed, the mold-damaged personal property was destroyed, but over 80 percent of the office furniture was recovered and is now in use in the new building.

Because the law firm is a public finance firm, we were also able to recommend a financing plan and assist the owner with issuing debt to pay for the construction of the improved property.  The savings on the rental that the property owner was paying was substantially more than the principal and interest payments on the construction loan.

We were happy we could be of service.