Architectural, Engineering & Construction Defect Litigation

We succeeded in striking a $4.1 million default judgment entered in the Philadelphia Court of Common Pleas by a plaintiff who alleged defective residential construction. We convinced the court that Pennsylvania Prothonotaries and Clerks of Court lack authority to accept a praecipe to enter a default judgment in a specified amount unless the amount is approved by a judge or is a sum certain, meaning that the amount is ascertainable from a confessed judgment or a contract that specifies the amount due. The default judgment had spawned significant coverage litigation by and against the defendant’s insurer.

We won summary judgment on behalf of a company that provided software for the overall design of roof trusses in a design defect case. The plaintiff owned the apartment complex being built and hired Turnbull Wahlert to construct the building. 84 Lumber was subcontracted by Turnbull to build and install the roof trusses. 84 Lumber contracted with our client to use its software for the design of the roof trusses and to provide truss connect plate hangers. The building experienced severe water damage allegedly because the roof trusses were not sloped properly and the HVAC units were misplaced on the roof. Damages were estimated at over $1.2 million. 84 Lumber demanded that our client defend and indemnify it against Turnbull’s allegations. The court granted our motion for summary judgment.

We successfully defended an architect against a $7 million claim brought by a general contractor in connection with the renovation of a historic, city-block-sized building in Philadelphia. The contractor alleged design errors and sought additional damages under the Contractor and Subcontractor Payment Act, inflating its claim to $16 million. During contentious discovery, we exposed contradictions and falsehoods in the contractor’s testimony, leading to a partial summary judgment that dismissed the bulk of claims against our client. Facing a looming trial and a remaining $4 million claim, we worked with the building owner’s counsel to convince the settlement judge of the claims’ lack of merit. The plaintiff filed for bankruptcy, and the final settlement had to be approved in the Bankruptcy Court. The case settled for just $362,500, with our client paying only $181,250—an outstanding result in a high-stakes dispute.

We successfully upheld an arbitrator’s ruling in a $13 million construction defect case, defeating claims that our client negligently recommended windows and doors for a coastal Florida home. The owners’ direct claims against the general contractor and our client, the window and door supplier and installer, were arbitrated. The owners claimed the window company misrepresented the fitness of the windows and doors for use in Florida’s coastal environment. We argued that the windows and doors were specified by the owner and architect and that our client performed proper due diligence by visiting the manufacturing facility and consulting with the manufacturer’s engineers with regard to the application. The arbitrator found no liability as to our client because there was no evidence it was negligent in its recommendation of the product.

We achieved dismissal of a breach of contract and professional malpractice claim against a professional engineering firm that provided construction monitoring services for a lender. When the project went south (for a multitude of reasons unrelated to the engineer's services), the project developer, who had obtained an assignment of rights from the lender, sought to hold the engineer responsible for project cost overruns. After a seven-day bench trial and testimony from nine witnesses, the court dismissed the complaint in its entirety. In dismissing the breach of contract claim, the court held that the plaintiff failed to establish any breach of contract by the engineer, finding that the reports prepared by the engineer during the course of the project complied with its contractual obligations, with the terms of the contract being clear and unambiguous. This included a contract provision which stated that the engineer was not responsible for the malfeasance of others, including the general contractor, or the errors and/or omissions of the project architect. The court further found that, even had the plaintiff proven that there was a breach of contract by the engineer, the plaintiff still failed to prove that the lender sustained any actual damages. In dismissing the professional malpractice cause of action, the court found that the expert testimony by the plaintiff was insufficient to establish a prima facie case. Specifically, the trial testimony on the plaintiff's direct case failed to establish any deviation from the accepted standards of practice in the services the engineer provided as the lender's representative.

We prevailed in a unanimous, precedential decision in the Superior Court of Pennsylvania, which reconciled conflicting case law in the state. The plaintiffs were joined by 55 amici, and our client was joined by numerous construction organizations as amici. The court eventually applied Pennsylvania’s statute of repose to bar construction defect claims brought by homeowners.

We obtained a summary judgment on behalf of our architectural client against one of the top construction/design defect law firms in New Jersey. After three separate argument appearances, the court granted summary judgment, holding that the plaintiff’s expert’s report failed to substantively establish a deviation from the architectural standard of care.

We were granted summary judgment in a $1.3 million construction defect subrogation case involving allegedly improperly sealed roof openings. The subcontractor contested its liability on the theory that our client chose the sealing method, and that the contract itself was deficient. Our motion, that was eventually granted, successfully argued that the contract language met the standard set in Pennsylvania’s Perry-Ruzzi rule.

We obtained summary judgment on a construction defect claim in Susquehanna County, Pennsylvania. The court dismissed the plaintiffs’ claims against the defendant, a homebuilder, in their entirety for the plaintiffs’ failure to adequately prove breach of contract, breach of express and implied warranties, fraud in the inducement, wrongful conversion and various alleged violations of the Pennsylvania Unfair Trade Practices Act.

We obtained summary judgment in the Philadelphia, PA Court of Common Pleas in a case involving the alleged defective design and installation of a synthetic turf field. Our client was the alleged installer of a turf field located at a popular venue for recreational athletics. The plaintiff sustained a full tear of his right ACL, a complex tear of the medial meniscus and partial tear of the IT band when he tripped on an exposed seam in the turf. Discovery revealed that a flood occurred during turf installation, arguably impacting the outcome. Nevertheless, the court granted our motion for summary judgment premised on an argument that the plaintiff could not establish a deviation from the standard of care for turf installation in the absence of qualified expert testimony.

The appeal was brought before the Appellate Division, Second Department. The plaintiff was a pedestrian who was struck by a car in the mall parking lot and sued our client, the mall owner. The plaintiff claimed that the parking lot was negligently designed, which led to the accident. The trial court granted summary judgment to the mall, saying that there was no evidence that the parking lot was negligently designed, or that the design led to the accident. A unanimous appellate court affirmed.

Marshall Dennehey and its shareholder, Jonathan E. Kanov, Esq., were successful in a South Florida arbitration representing a prominent Florida real estate developer against construction damage claims brought by a neighboring property’s condominium association. In a final, binding ruling, the arbitrator issued a complete defense verdict, plus an award of attorney’s fees and costs to the developer. The plaintiff condominium association had contended that construction of the developer’s luxury condominium tower caused many areas of their property to be damaged, largely from vibrations/seismic activity during demolition and construction. The plaintiff demanded $1.2 million in damages pursuant to a contract that was entered into by the parties covering the construction activity.   The arbitrator agreed with the defense’s arguments that the “conditions the claimant contends were caused by vibration damage from construction activities are actually age-related deterioration and the result of deferred maintenance. Additionally, there is no evidentiary basis to allocate uncompensated damage associated with the pool and pool deck to the developer, as opposed to preexisting conditions requiring repair and upgrades required for code compliance.” Marshall Dennehey presented highly credible experts and fact witnesses in support of its defense.    Another key to the defense verdict was Marshall Dennehey’s effective cross examination of the claimant’s structural engineering expert on construction vibration/seismic activity data, which formed the crux of their damage claims.

The decision was later affirmed by the Superior Court of New Jersey, Appellate Division, and we successfully argued both the summary judgment motion and the appeal. The plaintiff, a condominium association, filed suit against the sponsor of a newly constructed mixed-use residential and commercial building in Hoboken, New Jersey. The plaintiff also sued the property management company, the general contractor and various subcontractors involved in the construction. A temporary certificate of occupancy was issued in March 2004 and the plaintiff did not commence litigation until June 2014—more than ten years after substantial completion. Therefore, the claims were barred by the ten-year Statute of Repose, N.J.S.A. § 2A14-1.1. The former property manager for the building and the sponsor entity had common ownership. The plaintiff argued the sponsor maintained control of the property by virtue of its continued involvement through the property management entity, and that the Statute of Repose did not apply to a party in actual possession and control of the property at the time that the defective and unsafe condition caused the injury or damage at issue. The Appellate Division held that the plain language of the Statute of Repose precludes any “action, whether in contract, in tort, or otherwise, to recover damages for any deficiency in the design, planning, surveying, supervision or construction of an improvement to real property, [and] any action for contribution or indemnity for damages sustained on account of such injury . . . more than [ten] years after the performance or furnishing of such services and construction.” N.J.S.A. 2A14-1.1(a). The court found that the claims were also barred by the six-year statute of limitations as the plaintiff alleged that the first repairs at the building were undertaken in 2004, and the complaint was not filed until 2014.