Firm-Wide blog

‘Groundbreaking’ Green Building a Potential Source of Enduring Defect Litigation

By Burg Simpson
February 25, 2016
3 min read

While the green building trend continues to gain momentum, construction defects associated with the materials and processes used in this construction type have led to major litigation. For many contractors, green construction is a new endeavor, with inexperience increasing the likelihood of defect claims. To illustrate this phenomenon, consider a pioneering structure of the green building movement, the Philip Merrill Environmental Center, a new headquarters building for the Chesapeake Bay Foundation (CBF) in Annapolis, Maryland. Completed in late 2000, the CBF headquarters included structural wood beams and columns installed on the exterior of the building. Less than a year later the CBF noticed water leaking through the beams and columns and into the building. Along with the project’s architect and general contractor, CBF made repairs in 2004 that appeared to stop the leaking. However, deterioration of the beams and columns was noticed in 2009, leading to the filing of a building product defect lawsuit against the beams’ and columns’ manufacturer and water repellent treatment contractor. That lawsuit, entitled The Chesapeake Bay Foundation, Inc., et al. v. Weyerhaeuser Co., et al., is still ongoing.

Was green building a rotten deal?

The beams and columns installed at the CBF building are called Parallams. Consisting of bonded wood strips deemed “rapidly renewable,” the Parallams required treatment with a preservative called PolyClear 2000. According to documents filed in the lawsuit, the Parallams had not been treated with PolyClear 2000 as certified, and the PolyClear 2000 itself was not well-suited to the job of preserving the Parallams.

Pointing fingers abound

After repairs that included removal and replacement of all of the Parallams used on the exterior of the building were performed in 2009 or 2010, the CBF, architect and contractor filed suit, alleging breach of contract, common-law indemnity, contribution, negligent misrepresentation, and negligence, and seeking damages for the cost of investigation and remedial measures, in addition to lost revenues for lack of use during building repairs. CBF, the architect and the contractor blame the Parallam manufacturer for inadequately treating the beams and columns, for choosing an inappropriate preservative, and for misrepresenting the PolyClear 2000 as appropriate for the job. The Parallam manufacturer turned around and sued the company hired to treat the Parallams with PolyClear 2000, and blamed CBF, the contractor and architect for negligently constructing and maintaining the building, for selecting and approving an inappropriate preservative, and for failing to consider the effect of the building’s seaside location and weather conditions.

Case gives reason for pause regarding green building

While many of the claims in the case have been settled or dismissed, the Chesapeake Bay Foundation lawsuit provides a stark lesson regarding potential liability arising from green building. Specifically, the case demonstrates that using novel, untried materials that green building projects often require brings its own set of construction defect and product liability risks. As the plaintiffs in this case discovered, green building may not always be all it is cracked up to be.

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