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Construction Cases: Arthur Caltrider 

CONDOMINIUM / DIRECTOR LIABILITY

Normally principals of a developer will serve on the initial board of a   recently built condominium, until enough units are sold and those board positions can be filled by owners. In this case, involving a beach resort condominium, my clients were sued personally as board members in a seven count complaint, alleging damages of 1.3M for construction defects. After 2 Motions for Summary Judgment, 2 Motions to Reconsider and 3 Motion Hearings, all 7 counts were dismissed.

MARYLAND CONSTRUCTION TRUST ACT

The Act imposes personal liability on an officer, director or “managing agent” if funds paid by an owner to a general contractor to be held in trust are then paid to a subcontractor not entitled to these funds. A Maryland subcontractor sued the controller (managing agent), alleging he diverted funds contrary to the act. Our motion was granted at the end of the Plaintiff’s case as the plaintiff had insufficient evidence of (1) direction and control of the funds and (2) lack of intent to defraud when funds are spent on legitimate business concerns…see FERGUSON TRUCKING V KIEHNE 618 Md. 735 (1993).

CONDOMINIUM

A large historic building formerly used as a printing business was completely   renovated and modified into high end luxury condominium units along Baltimore’s waterfront. The building developed a variety of construction defects including water intrusion. My client was the steel fabricator that designed, manufactured, and installed interior and exterior stairwells on each of the seven floors.

The Condominium Association brought suit against the Developer and General Contractor and they filed third party complaints against many of the subcontractors. The case settled for $1,100,000 with my client contributing only $5,000 with no one paying less. The release includes an indemnity obligation owed by the Developer and General Contractor for individual claims by the unit owners.

LUXURY HOME CONSTRUCTION DEFECT

 The homeowners retained Ober Kaler alleging… against the builder… (1) water intrusion in the basement due to improper selection of the drainage   system (2) structural issues in the foundation wall and floor joist system (3) code violations throughout the above ground construction further alleging (4) negligent and intentional misrepresentation (5) violation of the Md. Consumer Protection Act (which allows a successful plaintiff to recover attorney fees) (6) lost value and lost opportunity to sell the house and (7) homeowner had a previously diagnosed “sensitivity to mold” and alleged bodily injury from mold in the finished basement suing for $6,000,000.

 Our strategy was as follows:
(1) Of the 42 subcontractors, we third partied 13 of them that had potential responsibility.
(2) We had two “day long” mediations attempting a global resolution. The lowest demand was $1,250,000.
(3) We reached agreement with the third party defendants not to request written discovery including expert reports.
(4) We reached an agreement with the third party defendants not to ask questions of the builder at his deposition in exchange for an informal meeting on 30      minute intervals between builder and each counsel for each third party.
(5) We reached an agreement with the third party defendants that our expert not be required to offer opinions against them in abeyance of the scheduling        order, but we were free to amend at a later date.
(6) After the conclusion of the 2nd mediation we reached an agreement that we could dismiss without prejudice all third parties so that the jury would not            see any infighting among the contractors. Accordingly, we were able to focus on the plaintiff’s short comings.
(7) We filed a Motion for Summary Judgment obtaining dismissal of        
      (a) personal liability of the builder
      (b) negligent misrepresentation
      (c) intentional misrepresentation
      (d) violation of the Consumer Protection Act (thus the claim for attorney fees was lost).

(8) An In Banc review was requested by the plaintiff and the MSJ rulings were affirmed after oral argument.
(9) We filed a motion requesting a Frye – Reed mini trial challenging plaintiff’s medical expert on mold. The motion was granted and the mini trial was                     scheduled for 2 days before the underlying trial itself.

Two weeks before trial, plaintiff suggested mediation. We said no. Two days   later, plaintiff asked for a postponement. We said no. One week before trial, there was a last minute court ordered mediation. Plaintiff’s demand came down to $695,000. We stayed at 200K.

Two days before trial, the case settled for 210K. We then pursued an indemnity claim against the third party subcontractors for the settlement amount as well as legal fees and other expenses including costs of experts.

At a later date, we invited third parties to a mediation and were able to recover 55% of the settlement amount.

CONDOMINIUM

I represented a roofing subcontractor in this construction defect action involving multiple buildings and multiple units (condominiums numbering in the hundreds) where the primary allegation was water intrusion. The general contractor who sued my client filed a motion for summary judgment arguing the statute of limitations and the statute of repose as construction was completed more than 10 years before the complaint was filed. The general contractor’s motion was denied. At that point in the litigation, third party defendants (subcontractors) were brought into the case. Despite the courts view of the general argument, we went ahead and filed our own motion for summary judgment making a similar argument, but this time the court granted our motion based upon limitations and repose.

PAVING / GRADING / UTILITIES

I represented a paving grading utilities contractor as a plaintiff and counter defendant in the Circuit Court for Carroll County. I am told the verdict at that time was the largest verdict in Carroll County. The owner was building a shopping mall in Carroll County and contracted with my client to install utilities, grade and pave. Due to the cold weather conditions, work stopped for several months. Kidde Consultants hired by the owner was out there daily taking temperature, readings, etc. Eventually, the owner said we breached our contract and kicked us off the site. We filed for breach of contract and the owner counter sued seeking relief from my clients bond.        

The bonding company retained me to defend their interests as well. The case was won during closing argument as I was able to portray the owner as a “big money downtown guy” and my client was a “local boy” trying to make a living pouring asphalt. The truth is, even though my client wore a cowboy hat, string tie, and jeans, he drove a high end Mercedes Benz.

HOME CONSTRUCTION

I represented the General Contractor (GC) in a case (Anne Arundel County) brought by the homeowners (HO) who had paid the GC approximately 80% of the contract price for work done but upon learning that the GC did not possess a home improvement license not only did they not pay the balance but sued the GC for a return of all monies paid. HO filed a complaint attaching a motion for summary judgment claiming constructive trust. Had the HO prevailed at the motions hearing on the theory of constructive trust there would have been no coverage.

We won the hearing and the motion for summary judgment was denied. Months later after bringing in third party subcontractors we were able to effectively negotiate a global settlement where the case was settled at 30% of the monies paid and the third parties contributed 45% of the settlement

HIGHWAY

A subcontractor was hired to install guardrail and asphalt on a New York state highway project. Mother was driving with her 5 year old son when she fell asleep at the wheel and the vehicle went off the road down an embankment, flipped over rendering her son a ventilator dependent quadriplegic. Plaintiff sued the State of New York, the general contractor, the road engineer and the subcontractor. The plans and specifications called for an additional 100’ of guardrail that was not installed. Our motion for summary judgment was denied.

The verdict was 57M yet we won on appeal as the trial judge was reversed as to the ruling on our motion for summary judgment. The other defendants had all settled out on the eve of trial for a total of 13M. This was a reported decision Church v San Juan Construction, 99 NY2d 104. There is a very interesting story about the dynamics of plaintiff counsel, AIG, and how we ultimately paid zero dollars

ELECTROCUTION

I represented the general contractor in a case that went to trial in Montgomery County, Md. where a crane operator (the employee of a sub) struck a high voltage line with his crane and was badly injured as a result. There were multiple parties and unfortunately it was one of those cases where fingers were being pointed by everyone at everyone. There were issues of plaintiff’s negligence, the employer’s negligence and the argument against the GC was failure to coordinate the trades and properly warn. The trial was half over and settled at that time.

OCEAN FRONT CONDOMINIUM

My client was the general contractor in the construction of a 20 story in Ocean City Maryland. Each condominium had a concrete slab balcony with metal railings as opposed to a concrete wall on the balcony allowing owners to sit in their condo and not have their view blocked. The railings were secured with metal stanchions and over time water would penetrate thru the stanchion into the concrete slab eventually finding its way to the rebar.

At that time in the construction industry rebar had not been covered with epoxy. The water caused rust which caused the rebar to expand which caused the face of the slabs to crack and concrete began to fall causing a safety issue.  There were multiple parties and the focus of our defense was a design issue as opposed to workmanship.

BRIDGE

Landfill was selected by City of Baltimore and State of Maryland to be a repository for thousands of truckloads of dirt coming from the construction of Camden Yards Baseball Park. The playing field was being lowered 17’. Opening day was approaching and time was of the essence. The permit allowed dirt to be piled up to 40’ but the amount coming in quickly surpassed that elevation but the Department of Public Works told the Landfill to keep accepting the dirt. The landfill was immediately adjacent to the Patapsco River Bridge and when the Federal Bridge Inspectors were conducting their inspection (every 2 years) they observed significant cracking in the pilings. Their report to the City indicated an “active landfill” was causing downward pressure on the subterranean soil causing lateral movement of the subterranean soil thereby causing cracking of the pilings.           

Two months went by before the City engineer read the report and when he did he immediately went to the bridge saw worsening conditions, shut down the bridge as well as the landfill. The elevation of dirt at that point was 79’ and the new permit had not been signed by all department heads. A lawsuit was filed by Baltimore City arguing that we were strictly liable based upon English law. They were right. However I begged Judge Heller for time to conduct discovery. She was close to granting the motion but did give me time.

The City demanded title to the landfill and 2M in policy limits as the repair cost was 3M. I started deposing the field inspectors who said “downtown” told us to accept the dirt regardless of the elevation. I worked my way up to noting the Mayor’s deposition and indicated the Governor was next. We settled the case quietly for 1.7M and my client kept his Landfill. It operates still today.

EXTERIOR INSULATION FINISH SYSTEMS (EIFS)

I represented the general contractor in a well know construction case here in   Baltimore know as Harper House a high rise condominium in the Village of Cross Keys. As you head north on I-83 you pass it on your right. Many, if not most, of the residents had damages from water intrusion and EIFS was the focus of the case. However there were also issues as to maintenance by the Condo Association and its members, design by the architect and engineer as well as workmanship issues involving the trades.

Most of the prominent downtown firms had a client in the case. I was involved in this case prior to my time at Travelers. Looking back there may have been opportunities to resolve the case before we did. I feel confident that defense costs easily surpassed the amounts paid in settlement which was in the millions.

PAVING / GRADING

I was able to resolve this case pending in the Circuit Court for Baltimore County with my client paying zero settlement dollars in addition to having the case settled before discovery began.

After meeting with my client and his crew and studying the plans and specs I had two conference calls with plaintiff counsel who gave me critical photographs and information and then I had a face to face meeting with my client’s subcontractor who had been blaming us. I completely opened my file sharing my view of the facts / strategy. After two hours counsel said she would speak to the carrier. A few weeks later the case settled with my client paying zero and defense costs were minimal as discovery had not begun. My client had asked its carrier Zurich if Caltrider could defend this case because they were one of my clients from my earlier life and Zurich agreed. Zurich was so pleased with the outcome they sent me a form to apply for consideration to be on their panel.

EXTERIOR INSULATION FINISH SYSTEMS (EIFS)

I represented a general contractor in a case in Howard County again involving EIFS.

UNDERWATER TUNNEL

The EPA found the harbor in Boston to be “the most polluted harbor in the country.” They instructed the MWRA (Massachusetts Water Rights Authority) to build a 9 mile effluent outflow tunnel to take its raw sewage out to sea.

Kiewit was the general contractor. There were 5 construction divers who had gone out to the end of the tunnel to work and the oxygen system was failing so they turned the jeep around and attempted to get out. Two died and three had brain damage. There was prejudgment interest of 12% and the case was already a year old. We had already had a defense meeting and had to rent a hotel conference room near Logan to accommodate everyone as there were coverage towers with multiple coverage issues not to mention over a dozen parties.

I came up with the idea of (1) creating a pot of money to settle the case…this appealed to plaintiffs as a resolution appeared far off (2) I then obtained agreement that after the case was settled we would arbitrate whether the various contributions were appropriate given contract and liability issues (3) most importantly I was able to persuade the parties that if the arbitrator determined that someone underpaid their fair share they would be required to pay back to the others the amount they underpaid in addition to an 18% penalty. As a result, we did not need to arbitrate because those who contributed did not posture but put in a fair amount. Additionally, there were some parties who did not contribute so after the settlement we (paid and chased) and recovered most of what we paid out. Our net was close to zero.

ROOF COLLAPSE

My client was The University of Maryland. The roofing system above the student union center was a steel grid and each individual grid square was filled with a concrete panel (weight probably a ton). Work was being done on the system for repairs / maintenance when one of the panels fell from the roof to the floor below striking a worker. I do not recall if he was killed or   survived. The case involved multiple parties and was filed in Prince Georges County, MD.

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