Construction Litigation Law Blog

On March 11, 2008, in the matter of Camelot Condominium Association, Inc v. Dryvit Systems, Inc., pending before the Superior Court of New jersey, Docket No. BER-L-012457-04, a jury entered a verdict in favor of the Plaintiff and against Dryvit Systems, Inc ("Dryvit") for violations of the New Jersey Consumer Fraud Act. Dryvit Systems is the largest manufacturer of Exterior Insulation and Finish Systems for residential and commercial construction in the United States.

With settlements the Plaintiff obtained before and during trial from other defendants, the total irecovery for the Plaintiff following the jury verdict was $5,046,000.

The case involved a joint repair project done in 1998 on what was then a 16 year old high rise building clad with roughly 300 panels coated with Dryvit's EIFS. The jury returned a verdict that charged Dryvit with knowledge that the Dryvit EIFS finish coating on the buildng's exterior panels softened when exposed to substantial water penetration. That softening caused cohesive failures at critical caulk joints, which resulted in openings for water to penetrate inside the building and cause catastrophic damage to the framing and sheathing on the building.

The jury found that Dryvit made knowing omissions and affirmative misrepresentations of material fact in connection with the repair of the Exterior Insulation and Finish System (EIFS) on the building located in Hackensack, New Jersey. This is the first time in New Jersey that an EIFS manufacturer has been subjected to a jury verdict for violations of the New Jersey Consumer Fraud Act. There will be no appeal.

John Randy Sawyer and Donald B. Brenner Shareholders of Stark & Stark’s Construction Litigation group represented the Plaintiff in the case.

As the real estate market contracts, contractors, subcontractors and suppliers with unpaid balances will need to protect their interests by, among other things, taking advantage of applicable lien laws. In construing New Jersey’s lien laws, definitions of “residential” and “commercial” construction have long been considered by many to be a gray area.

The Bankruptcy Court for the District of New Jersey recently addressed the distinction. It held that agreements with general contractors or developers in which contractors, subcontractors, and suppliers agree to provide work, services, material or equipment to large-scale residential developments are residential construction contracts. In re: Kara Homes, ____ F.Supp. _____ (D.N.J. August 29, 2007).This means that such contractors, subcontractors and suppliers must follow the more complex provisions applicable to residential construction contracts when they wish to secure an unpaid balance with a construction lien.

In New Jersey, the Construction Lien Law (“CLL”) (N.J.S.A. 2A:44A-1 et seq.) distinguishes residential construction contracts from construction contracts that are commercial in nature. The CLL defines a residential construction contract as

any written contract for the construction or improvement to a one- or two-family dwelling, or any portion of a dwelling, which shall include any residential unit in a condominium subject to the provisions of P.L.1969, c. 257 (C.46:8B-1 et seq.), any residential unit in a housing cooperative , any residential unit included in a fee simple townhouse development, any residential unit contained in a horizontal property regime as defined in section 2 of P.L.1963, c. 168 (C. 46:8A-2), and any residential unit contained in a planned unit development as defined in section 3.3 of P.L.1975, c.291 (C. 40:55D-6).

N.J.S.A. 2A:44A-2.

No lien shall attach for work, services, material or equipment provided as part of a residential construction contract unless the provider strictly complies with the requirements of N.J.S.A. 2A:44A-20 and 21, which impose additional requirements for liens filed on residential construction. N.J.S.A. 2A:44A-5c. The Legislature premised the additional requirements for perfecting liens on residential construction on the need to preserve and enhance the State’s economy, promote a stable marketplace in which families can purchase homes with expedience and certainty, allow lending institutions to conduct their business in a stable environment. N.J.S.A. 2A:44A-21a.

The defendants in Kara Homes, which were various contractors and subcontractors of Kara Homes and/or one or more of its affiliated entities, contended that contracts relating to construction of numerous homes within Kara’s developments were not residential construction contracts in that Kara’s construction of homes for resale was commercial in nature and in that the scope of Kara’s developments exceeded the “one- or two-family dwelling” that was the target of the additional lien-filing requirements. Kara Homes and its affiliates argued that, because the developments were residential, their contractors and subcontractors needed to have strictly followed the provisions of N.J.S.A. 2A:44A-20 and 21 for a valid lien claim to have been filed and perfected.

After observing of the few available unpublished cases considering the question “that the issue of whether a large scale construction project is residential or commercial in nature is unsettled and the analysis arbitrary,” the Bankruptcy Court concluded that the literal language of the statute was not dispositive of its intended scope. In light of the legislative purpose articulated in N.J.S.A. 2A:44A-21a, said the court, large scale residential projects must be included among residential construction contracts. Accordingly, contractors, subcontractors and supplier should be careful to observe the additional requirements applicable to residential construction contracts when working on large scale developments.

A component product’s failure to perform as represented by its manufacturer is a frequent claim in a construction defect cases. Often, defendants of such claims attempt to hide behind general disclaimers and limitations of warranty. Addressing the failure of a component product of yachts, the Federal Court for the New Jersey District recently denied a manufacturer’s summary judgment motion, having concluded that a general disclaimer of warranty will not automatically defeat an express warranty created by representations, descriptions and affirmations set forth in a product bulletin. Viking Yacht Co. v. Composites One LLC, ___ F. Supp.2d ___, 2007 WL 2153243 (D.N.J. July 26, 2007).

Defendant’s distributor sold the plaintiffs, two New Jersey yacht manufacturers, the gel coat used as the outermost surface of the yachts. Gel coat provides an attractive finish while protecting the yacht from water and other materials. Prior to their purchase of gel coat, defendant provided the plaintiffs with its literature for the product, touting its improved flexibility and weather resistance, as compared to a prior gel coat that plaintiffs had purchased from defendant. The literature included a descriptions of the gel coat’s characteristics, a product bulletin, and test data supporting defendant’s claims that the new product was an improvement over the old. Defendant also provided a limited warranty that the gel coat met specifications when shipped as well as a general disclaimer and limitation of warranty, stating that a buyer’s exclusive remedy was replacement of the product or refund of the purchase price.

Plaintiffs conceded that they had not purchased the gel coat based on its improved flexibility. Instead, each tried the new product, hoping that it would demonstrate better “buffback qualities” than the earlier product. Unfortunately, both plaintiffs discovered that the new gel coat cracked extensively on boats that were stored or used in cold weather. Plaintiffs sued defendant, alleging that it new of the gel coat’s inherent problems and failed to disclose them. Defendant replied that it had been unaware that the product was subject to cracking, that the cracking could have been attributable to the plaintiff’s errors in using the gel coat, and that, under the limited warranty, it was not liable for plaintiffs’ damages.

The court disagreed with defendant. Governed by the Uniform Commercial Code, express warranties arise whenever a seller states a fact or makes a promise about the goods becomes part of the basis of the bargain or whenever the seller’s description of the product, specification list, expression of a standard, representation of quality, or provision of a sample or exemplar is a basis of the bargain. A disclaimer of such an express warranty may only be effective if it is “clear and conspicuous,” and written so that “a reasonable person against whom it is to operate ought to have noticed it.” And even if the disclaimer is clear and conspicuous, it will not be found effective to the extent that it is inconsistent with express warranties extended by the seller. Here, the properties of the gel coat were trumpeted on the first page of a flyer while the limitation of warranty was buried within it. Accordingly, the court declined to grant summary judgment to defendant based on its disclaimer and limited warranty.

On June 26, 2007, the Supreme Court of New Jersey held that the statute of repose begins to run on the date upon which the contractor or design professional has completed his or her portion of the work, In Daidone v. Nuterick Bulkheading, et al., Docket No. A-60, 2007 N.J Lexis 706, the plaintiffs had hired an architect to design their new home. The plans were completed in June 1993 and the architect had no further involvement in the project.

Beginning in 1999, settlement of the home caused problems with several pipes and an electrical panel. The plaintiffs nevertheless waited until mid-July 2002 to complete repairs and until June 2004 before suing the architect. Thus, although they were within 10 years from completion of the home and the date of issuance of a c/o, they were more than 10 years past the date when the architect had completed its work. The Supreme Court of New Jersey held that "this led to but one conclusion: as a matter of law, plaintiffs causes of action against [the architects] relating to design and construction defects are deemed never to have arisen. " the court rejected the plaintiffs' argument that it was against public policy to require plaintiffs to make individualized determinations as to when a designer or contractor has completed performance because such a requirement is unduly burdensome.

In an unpublished case addressing a peculiar repair, the Appellate Division recently reiterated one of the basics of common interest ownership: When in doubt, read your documents. Waldstein v. Highview at Hawthorne Ass’n, Inc., A-2281-05T1 (June 12, 2007).

Shortly after purchasing their town home as a resale in 2003, Plaintiffs Jay and Kathleen Waldstein discovered a broken sewer pipe was leaking water and sewage below the concrete slab that formed the lowest floor of their town home. Further investigation revealed that the pipe had ruptured when the slab failed as a result of a construction defect: the interior foundation of the home had never been built. Plaintiffs repaired the sewer pipe and rebuilt the floor slab, then requested reimbursement from the Homeowners’ Association.

After the Association declined payment, the plaintiffs brought a declaratory judgment action, asking the court to determine that the Association was responsible for the cost of the repairs and to award them fees and costs. The trial judge declined to do so, finding that, the Declaration of Covenants and Restrictions applicable to the development included no provision making the Association responsible for such a repair. On appeal, the Appellate Division agreed.

Plaintiffs relied on a provision of the Declaration that reads as follow:

Each townhouse Owner, by acceptance of ownership, agrees and covenants that if his townhouse, including any party walls, shall be fully or partially destroyed by fire or otherwise, the Association shall reconstruct said townhouse expeditiously, pursuant to plans approved by the Board of Trustees. Any such reconstruction shall be subject to all other applicable provisions of this Declaration and applicable governmental regulations.

Plaintiffs also pointed out Declaration provisions requiring the Association and the Owners to carry fire and casualty insurance as well as extended coverage.

The appellate judges rejected Plaintiff’s argument, limiting the Association’s responsibility to reconstruct under the cited provision to situations in which a townhouse is fully or partially destroyed by fire or similar casualty. Because Plaintiff’s repairs were necessitated by defective construction, the Association was not required to repair or reconstruct.

The court also rejected Plaintiff’s alternative argument that the Association was required to reimburse them since it maintained a reserve account for repair, replacement and improvement. Analyzing the Declaration as a whole, the judges concluded that the reserves were explicitly intended to fund repair, replacement and improvement of common property and the exteriors of the townhouses. No provision required the Association to fund the repair and reconstruction of an interior structural flaw in a town home, caused by a construction defect.

Finally, the court rejected Plaintiff’s argument that an easement provision granting the Association the right to enter a town home to repair breaks of leakage in the water, sewer or sprinkler systems that threaten damage to common property obligated the Association to reimburse them, finding that no evidence suggested that the leak below Plaintiff’s town home threatened the common property in any way.

The Waldsteins’ futile attempt to pass their repair bills on the Association is another reminder that no one formula sets forth responsibility for repairs and maintenance in common-interest communities. New Jersey law permits sponsors and developers great flexibility in designing the maintenance provisions of their communities, and the many variations in governing documents reflect factors such as marketing decisions, architectural requirements, and site anomalies, among others. Careful reading and analysis of the governing documents, that is, the Declaration or Master Deed, is always the first step in determining responsibilities for performing and paying for repairs.

There are two classes of experts: consulting experts who will not be testifying at trial and trial experts whose testimony you do intend to rely upon. All documents and oral communications exchanged between counsel and the consulting expert are generally privileged --except in rare instances where the opposing party can show a hardship that justifies allowing the consulting expert's files to be discovered or that allows the consulting expert to be deposed. That would only happen in a situation where the opposing party could show that there was no other way that he/she could get anyone else to offer an opinion on the same issue--for example, because the evidence was destroyed. In New Jersey, discovery is allowed into the documents and oral communications between the testifying expert and counsel to the extent, in formulating his or her opinion, that the expert relied upon any information exchanged or communicated between them. This distinction is important because counsel's communications with consulting experts--even those that lead to the development of opinions harmful to the case--are not discoverable. This gives counsel the freedom to be aggressive in speaking with prospective experts so that counsel can find the expert best suited to the case.

There are many factors to consider in hiring an expert. The nature and value of the claim, the factual background of the matter from which the claim arises, and the scope and timing of the work must be considered. The credentials and experience of the expert must also be considered since the fees charged by the expert usually are a direct reflection of those factors. You must also decide whether the expert is going to be a consulting expert or an expert who will be testifying at trial. This is a particularly important consideration given the privilege that attaches to communications between the attorney and the consulting expert.

Some or all construction and design claims may involve extremely complex factual or technical issues. The entire case may rise or fall on the quality of the experts selected to handle the claims in issue. Extraordinary care must therefore be given to the entire process of finding and hiring consulting and testifying experts. The initial expert retained by the client may be an architect or engineer with broad experience in areas of design or construction. As counsel's investigation continues with the assistance of the consulting expert, it may be necessary to bring in additional experts who have specific expertise in particular areas. The amount in controversy will often have a major impact on this process. If the case is a construction and design defect case involving water infiltration from roofs, windows and siding, and claims relating to improper design of a sea wall, and deficient construction of the fire suppression systems in a large condominium, and the amount in controversy is $5 million, it may make sense to engage an expert with particular expertise in handling just the roofs, windows and siding, a different expert with particular expertise in sea wall design /construction issues and yet another expert with particular expertise in design/construction of the type of fire suppression system involved in the case. Counsel may also wish to hire yet another expert with substantial expertise in cost-estimating to compile the damages report.

As a general matter, it is advisable to make sure that your experts have experience testifying in depositions and at trial. That is a very different experience for most experts. No matter how well educated and experienced an expert may be, it is not unusual for an expert who has never testified before to look tentative, become defensive or combative or otherwise have difficulty under cross -examination by skilled counsel. If the claim is worth bringing, and it is substantial enough for the client to incur the expense of hiring an expert, then it is worth the time and trouble to make sure that, in the interview process, due consideration is given to making sure that the prospective expert has testimonial experience. These considerations all need to be thoroughly reviewed with the client before these decisions are made.

Construction litigation requires the use of experts in many contexts. For example, a typical project starts with the "design phase" in which civil engineers, geotechnical engineers, hydrologists, environmental engineers, surveyors and architects are involved in shaping the contours and features of the project design. The design phase is followed by the "construction phase" in which numerous design professionals are involved. These include, among others, architects, structural, mechanical and electrical engineers, among others. All of these design professionals must coordinate their activities with those of the general contractor and subcontractors.

Design professionals also have to be careful to make sure that materials specified for the project are fit for their intended purposes and will not cause or exacerbate construction deficiencies. Many construction materials become code compliant as alternate materials under the building code and their manufacturer's installation specifications become the standard for Code compliance. Communication with the manufacturer or distributor becomes very important in determining whether materials can be used on a particular project.

Assuming litigation ensues after design or construction defects are found, experts will almost certainly be required to render reports and testify at depositions and at trial. Counsel will also need to consult with experts during various stages of the case. Typical issues that may require use of expert testimony or require counsel to consult with experts include, among many others:

1. whether work was performed deficiently;

2. Whether materials were defective;

3. whether certain work was within the scope of work of a particular contract;

4. whether the work of a contractor conformed to the scope of work in the contract;

5. whether the design or workmanship was deficient or the materials were defective, or some combination of the three;

6. the applicable standard of care governing that work;

7. Whether there were delays that are actionable;

8. the cause of the deficiency or defect;

9. the damages flowing from delays or deficient workmanship or materials;

10. what needs to be done to repair the defective materials or deficient workmanship.

Depositions are a critically important part of the plaintiff's strategy. They enable the plaintiff to bring out facts that trigger insurance coverage. They also enable the plaintiff to obtain testimony that, among other things: (a) authenticates important documents; (b) lays foundations for other testimony; (c) provides fodder for impeachment of witnesses at trial; (d) gives plaintiff the opportunity to create a record that can be used to defeat summary judgment motions at the close of discovery and to support the opinions of its expert; and, (e) most importantly, enables the plaintiff to sustain its burden of proof at trial. We often spend months preparing for depositions of important witnesses such as project managers, design professionals and product manufacturers, since those depositions can be of seminal importance. A great deal of thought, preparation, experience and skill is required in planning and executing your deposition strategy because those depositions—properly done—set up the entire case.

The Stark & Stark Construction Litigation Group spends substantial amounts of time and money doing intensive investigations of non-parties and their documents. Disgruntled former employees, competitors and municipal officials can be a fountain of useful information. In addition, representatives of manufacturers of materials that were used on the project often do site inspections that result in interesting meetings, letters, e-mail and other documents that can be extremely useful at trial. Counsel should do plenty of thinking about discovery strategy, because it can turn a valuable case into a gold mine if properly conceived and executed.

We are amazed at the lack of knowledge of many project managers and superintendents we depose. These project managers and their subordinates are entrusted with supervising the work of hundreds of people costing tens of millions of dollars. We typically prepare by learning every nuance of the details and specifications governing the issues in the case. We spend quite a bit of time mastering those details and specifications because we have learned over time that the project managers and their subordinate superintendents typically do not have much understanding of those details and specifications. Devastating testimony can be developed by going through those details and specifications with the project manager and his subordinates. The obvious goal is to elicit testimony from then that enables counsel to put on testimony at trial raising the question: how can you possibly evaluate the acceptability of the work of the subcontractors in a competent way if you do not understand what they were supposed to do?

One final example is worth describing. You never know where your next bombshell is going to come from. That is why we try to talk to as many people who worked the project as possible. We spend a great deal of time and money tracking down missing subcontractors –especially those who are out of business and may have a good story to tell. Disgruntled former employees and subcontractors are a veritable fountain of valuable information about what transpired on a job. We have taken depositions where disaffected subcontractors who were not paid a few thousand dollars and were thrown off the job come back years later at depositions and do enormous harm to the developer-general contractor. For example, in one particular instance, the now- defunct subcontractor responsible for applying the roofs to a series of condominium buildings was upset because he did not get paid his last $20,000 of a contract worth over $1 million. When asked why he did not follow the manufacturer’s installation specifications for installation of ice and water shield and why he failed to use ventilated, pressure treated stirrups to attach the concrete roof tiles, he threw the project manager under the proverbial bus with great enthusiasm. He testified that he pointed out the details and specifications of the roof tile manufacturer to the project manager but the project manager told him to ignore them because the builder did not want to spend the money for these details. He even went so far as to get his ex-wife, who held the defunct company’s records–to give us documents he had that we used to help support his story. The carriers for the roofer and the general contractor eventually threw in their full policies to settle the claims.

It takes years of experience to be able to effectively handle a complex construction litigation case involving claims arising from design defects and /or construction deficiencies. These cases are an interesting challenge and a great deal of fun to handle. There is nothing quite like being the plaintiff representing completely innocent, totally victimized clients in a complex case involving tens of millions of dollars in claims and appearing at depositions, court hearings and trial with 50 or more lawyers arrayed against you. The fact that your clients had nothing to do with creating any of the construction n deficiencies and design defects in question gives you a powerful moral and legal advantage over the defendants. Careful thought, planning, preparation, use of the right experts, and lots of hard work and hopefully some good luck can get you a result that is emotionally fulfilling and financially rewarding for both your client and your firm

Joining parties in a complex construction litigation case involving millions of dollars of damages is not to be done lightly. If counsel is not careful, it is easy to wind up with 50 or more parties, each of whom has to be served with every pleading, motion, letter, discovery request, expert report and everything else that is sent out in the litigation. This can cost tens–sometimes hundreds-- of thousands of dollars each year that the case continues.

If a party is going to be joined, careful thought must be given to what it will cost to add that party, and what recovery is likely to be obtained. We have seen complex cases where a party is joined because of a relatively small claim. That party then files a third party complaint, and brings in two other parties seeking contribution or indemnification. The three of them get involved in a series of disputes about who did what on the project. Each party serves extensive discovery requests on the plaintiff and on each other. Experts have to be hired for each party and site inspections have to be arranged. By the time everyone gets done with all of that work, the amount to be recovered has been dwarfed by the amount of attorney's and expert fees and costs expended. This causes aggravation and delay for all involved and in the end, no one is happy with the outcome. Thus, even if the plaintiff has a perfectly valid claim, careful consideration has to be given to whether it is economically sensible to assert that claim.

Generally, experienced counsel knows that you follow the money in a construction litigation case. Common sense dictates that you assert and spend most of your time on the most valuable claims. You must make sure that you have a good understanding of insurance coverage issues, as well as the best experts you can find. Care has to be taken to plead your claims in such a way as to make it as likely as possible that the insurance carriers will refrain from disclaiming insurance coverage. For example, you will want to try to frame your pleadings to describe negligent rather than intentional conduct. Typically, CGL policies exclude claims for intentional conduct but cover negligent conduct. In a similar vein, counsel will want to carefully consider whether he/she wants to plead fraud claims because they involve proof of intentional conduct that is beyond the scope of CGL policies.

Once the initial investigation and preparation of pleadings is complete, counsel has to assimilate the documents and interrogatory answers, and then get ready for depositions. This is the most important part of discovery because you are getting answers directly from the witness without counsel coloring the answer as typically occurs when interrogatories are answered by counsel and then affirmed by the client.

Generally, in determining who to sue and what claims to make, Stark & Stark's Construction Litigation Group is guided by our client’s knowledge of the history of the project, our experts and by our experience. We also review whatever documents are available and make reasoned judgments as to who to join in the original complaint. It is especially helpful to have the original as built plans, the records of the construction office of the local municipality, and any other local, state and federal agencies who may have played any role in approving the design of the development or project in question. We understand that we are going to have to amend the complaint—probably several times—until we have all parties joined who belong in the case.

We start with the developer and general contractor, and then add any subcontractors whose identities are known to us and who we have a good faith reason to believe have liability for the defects in question. If there are any defective products, we try to determine who the manufacturer and distributor are so we can join them to the suit. We frequently ask the developer-general contractor for a list of responsible subcontractors. They are usually willing to provide this information, since the developer-general contractor is typically looking to be indemnified by these subcontractors and design professionals anyway under the terms of the contracts between them or under state law.

Once the complaint is filed, we serve extensive requests for documents relating to, among other things, the approvals, design, construction and inspection of the project, insurance coverage and any deficiencies discovered or complaints by any unitowners, homeowners or other buyers or residents. We also serve written interrogatories on all parties to elicit important information such as: (a) who did what in connection with the project; (b) who supplied the materials in question; (c) who inspected the work; (d) what changes were made in the work; (e) what problems arose during the project; (f) what payments were made for the work or materials in question; and (g) what disputes arose during or after the project. After several months of discovery, we can usually identify most of the important players. We do additional amendments of the complaint as go forward and identify other responsible parties, such as subcontractors of subcontractors and repair contractors who may have come in after the job was well under way to fix someone else’s deficient work and thereby exacerbated already deficient work.

When engineering work is being done, careful consideration must be given to the doctrine of spoliation of evidence. This is a doctrine that says that before any repair work or invasive testing is done that substantially affects the original condition of the property in question, fair notice must be given to any person who may have an interest in that work. Failure to give fair notice in advance of the work can mean that the plaintiff doing the work can have its proofs barred at trial.

The point of the spoliation of evidence doctrine is to make sure that contractors, material suppliers, design professionals and anyone else who may eventually be sued for design or construction-related claims has adequate notice and a fair opportunity to view the existing "as- built" condition of the property before any repairs or major invasive testing are done. The theory is that if such a person is deprived of the opportunity to inspect the as- built condition of the property, the person is essentially deprived of the ability to mount an effective defense, or to make claims against third parties it believes is responsible for the loss. Notice should be given if the property is about to be repaired; it may also be necessary if extensive invasive testing is going to be done.

For example, if you have a client who is going to demolish extensive portions of one side of a building to see what the condition of the sheathing or framing is, or to observe and document mold conditions, then notice should be given. If your expert is just going to do some small test cuts of the exterior cladding, then notice probably does not have to be given, since you are not affecting the ability of the defense experts to either re-open the test cuts done by your expert or do test cuts of their own.

Giving notice is a judgment call for counsel. The Stark & Stark Construction Litigation Group recommends that counsel err on the side of caution and give as much notice to as many people as possible. For example, we do a lot of cases involving deficient installation of building envelopes. We often have no idea who the manufacturer of the defective exterior cladding is. Before we allow our clients to tear off the cladding and fix their buildings, we give notice to every product manufacturer and distributor we can think of. We also ask the developer or general contractor to give written notice to all contractors and design professionals who worked on the project. By being as expansive as possible, you limit your exposure to the spoliation of evidence defense.

Another important consideration is whether the association is going to be willing to hire and pay for the qualified experts necessary to win the case. You can have a great case, but if you have the wrong expert, it can quickly turn into a disaster. The best way to avoid this problem is for counsel to give the client a thorough and honest estimate of what the case will cost and what the timing of the case will likely be. What does counsel base this assessment on?

Many lawyers file suit based upon transition engineering reports. These reports are often perfunctory, and were done just to give the association a general idea of what issues might be of concern. Many explicitly state that no invasive testing was done and that additional investigations are needed.

We like to get as much engineering work done as possible before the complaint is filed, so that we have a good understanding of the strengths of the case. For that reason, we prefer to hire experts who we will rely upon at trial to do a thorough investigation of whatever defects have been identified or are suspected. These investigations involve extensive test cuts and as many photos as are needed to properly document conditions. They can take weeks to complete and can result in extensive reports that cost tens of thousands of dollars or more. Counsel has to use good judgment on a case-by-case basis to guide the client as to what level of engineering work is needed or appropriate before the complaint is filed.. Generally, the more complex the issues, the more detailed the investigation will have to be. For example, if the case involves roof claims on 45 buildings, a decision has to be made as to whether you are going to have your experts test all 45 buildings or try to test just a representative sample. If you have issues relating to deficient installation of fire suppression systems because the wrong anti-freeze was put into the CPVC pipes, causing damage from environmental stress cracks, a careful analysis will need to be mdeas to what type of experts you need. Depensding upon your proofs, if you do not havw busrt pipes yet, you may needd to hire an expert who is a chemist and hwo can tetsify about environmental stress cracks and how they can or will cause consequential damage in the near future. The list of possible examples is limitless. The pijnt is that close consultation between the clients, counsel and the experts is obviously needed in making this judgment.

When evaluating a new case, it is important to look at many factors. One of the first considerations is applicable statutes of limitation or repose. The statute of limitations is a statutory limit on when a claim can be brought. It is an equitable statute. The case law allows the statute to be extended if a reasonable person could not, through the exercise of reasonable diligence, have known about the defect. This is known as the "discovery rule."

A statute of repose is different in that, rather than allowing a claim to be brought within a specified number of years that can be extended by the "discovery rule," this statute simply says that within "x" number of years after substantial completion of work, no claims exist—ever. For example, in New Jersey, the statute of limitations on negligence claims resulting in property loss is six years, which is then extended by the discovery rule. The statute of repose in New Jersey, and in many other states, is absolute, even if the builder, subcontractor or design professional intentionally and fraudulently concealed known defects. There is no extension of this statute under any circumstances, and the discovery rule is inapplicable. Thus, at the case intake stage, it is absolutely imperative that counsel be familiar with these statutes and understand how they are going to deal with arguments based upon those statutes.

Another important factor in evaluating a new case is available insurance policies for the general contractor, subcontractors and design professionals. We recommend that clients who have reason to believe that there is no insurance hold off on spending substantial money on expert and legal fees until the availability of insurance is determined in discovery. Many states have court rules allowing quick discovery of insurance information, a simple process that can provide critically needed information early in a case. If the case is being taken on a contingency, it is a good idea to have an agreement in advance of filing suit that counsel will hold off aggressively litigating until counsel gets the insurance policies in discovery, and can make certain that there are no obvious exclusions that destroy coverage. (For example, if you are litigating over damages caused by EIFS , you will want to know as quickly as possible if the developer and the EIFS applicator have insurance policies that contain EIFS exclusions. If it turns out that there is no insurance, the case can be dismissed before the association spends substantial money on litigation that is going to be fruitless in generating a recovery.

Handling a major construction litigation case takes three to five years in most state courts–sometimes longer. A complex case with 50 or more defendants can cost upwards of $1 million in legal fees, plus hundreds of thousands more in expert fees and costs. Most clients cannot afford to finance such litigation. As a result, in appropriate cases, Stark & Stark's Construction Litigation Group will handle large, complex, multi-million dollar cases on a full or partial contingency. This decision is made on a case-by-case basis depending upon many considerations such as: (a) the facts; (b) the projected legal issues; (c) the insurance coverage issues that we can anticipate based upon our experience; (d) what experts will we need and approximately how much they will cost; (e) how long it will take and how much we think the case will cost to get to trial; and (e) what we think the range of anticipated recovery may be. This enables the association to minimize the need to upset the members of the association with enormous special assessments during the pendency of the litigation. It also enables counsel to assign all of the attorneys that it needs to the case without worrying about whether the client can afford it.

We are often able to assign two or more partners and multiple associates to complex construction litigation cases; therefore, we can move the cases ahead much more quickly than would ordinarily be the case if the client had to pay hourly for counsel's time. The client does not care how many attorneys work the case because the client is not paying hourly fees. In fact, the client is most often quite impressed with the effort that counsel is making. This tends to make for a very close working relationship between counsel and client, because the client sees that counsel is investing an enormous amount of resources into the case. In effect, the lawyer has become a true partner of the clients in the case.

Counsel gets the added benefit of putting the most talented attorneys on those aspects of the case that they are best suited to handle, without regard to what that will cost the client. This enables counsel to work a very complex case with great efficiency, skill and speed. In the end, both the client and the plaintiff's lawyers benefit from a tightly handled case that realizes a great result—and in less time than would be the case if counsel was constrained by concerns about the ability of the client to pay the legal bills every month.

One other way that counsel can add value for the client is by helping the association’s board of directors inform the unitowners about the litigation. This takes a lot of pressure off the board and allows the community to see and hear from the attorneys who are handling the case a first-hand report on the progress of the litigation. Counsel must be mindful that these open public meetings may not be covered by the attorney-client privilege. Therefore, considerable care has to be given to making sure that nothing is disclosed in these meetings that could be construed as waiver of the privilege. Handled skillfully, a public meeting at which counsel and /or experts give a top-quality presentation about the case and answer questions can be an opportunity for the board to galvanize public support for the case. This can be particularly important where a special assessment is being contemplated to pay for the litigation.

A lot of careful thought has to be given to what claims are worth fighting about, because the association will likely have scarce resources available to it. Much of the value that counsel brings to this process is counsel's experience and judgment and counsel's relationships with experts who are particularly skilled in disciplines that are responsive to the needs of the association.

Counsel also adds value to the process by making sure that the association does not take unrealistic positions regarding the claims that it makes. This means keeping client expectations within line of what we think we can probably get through litigation or mediation of each claim. It helps to have considerable experience when you are trying to give advice to a client about what their reasonable expectations should be regarding the amount that the association can realistically expect to recover from the litigation. This is one of counsel’s most important responsibilities because the decision of the client regarding how much to spend on the case and what to settle the case for are dependent upon counsel’s advice. Myriad factors need to be considered in making this critically important evaluation. Are there statute of limitations or statute of repose issues? If so, how much of a concern are they? How good are plaintiff’s experts? How strong are plaintiff’s proofs on liability and damages–especially consequential damages as is discussed in detail below? Can the proofs be understood by the jury? Do the defendants have any chance of dismissing all or part of plaintiff’s case on pre-trial motions? How long will trial take and does the client have the money to fund the case through trial? If not, is counsel willing to advance the costs and expert fees and take a piece of the recovery? Do the defendants have any assets? How much insurance coverage is there? What coverage issues are there and how can the plaintiff overcome them?

Counsel has to see and anticipate issues well in advance to prevent a client from spending huge sums of money taking discovery and then having claims unexpectedly dismissed before trial. For example, suppose you have a construction defect case involving a defective exterior cladding that was negligently applied by the applicator. The building was substantially completed in 1993 and the product was applied in 1992. The developer did not immediately sell all of the units. Instead, the developer rented out the majority of the units in the building. Eventually, in 2005, 12 years after substantial completion of the building, the developer sold off the last units needed to trigger transition of control of the association’s board of directors. The unitowner-controlled board hired experts who discovered severe water penetration through the defective cladding caused mold and other massive damage to the structural framing of the building. You sue the developer, all subcontractors, design professionals involved in selecting the material and the manufacturer and distributor of the material.

This case is a mine-field of complex issues. Counsel will have to evaluate how the statutes of repose and limitations will impact the handling of this case. If the defendants can prove that the developer-controlled board of directors of the association knew about the water penetration and failed to file suit beyond the statute of limitations, then it is possible that the unitowner-controlled association could have all of its claims against all subcontractors, design professionals, the manufacturer and distributor dismissed. This would leave the association with a remedy only against the developer and general contractor on the theory that during the period when they were in control of the board of directors of the association, they had a fiduciary duty to bring these claims against all possible defendants. Having failed to do so, they should be stopped from asserting the statutes as a defense.

Counsel have to be sensitive to these kinds of issues because community associations and other kinds of clients are simply not going to be sophisticated enough to understand that they even exist–let alone how to evaluate and deal with how they impact the association’s reasonable expectations for the value of the case, how much the association should be willing to invest in attorney’s fees, expert fees and other costs in order to get a fair return on their money.