It’s still in its infancy, but Google Scholar’s beta version allows you to search scholarly articles, patents or legal opinions and journals. Here’s a sample search for “weather tite Illinois”
On November 11, 2009 Judge Virginia Kendall of the Northern District entered memorandum opinion and orders in the matter styled, ExxonMobil Oil Corp. v. Amex Construction Co., Case No.07 C 4278 applying a Daubert challenge from third party defendants to opinions held by Amex's retained expert Dr. Nicholas Biery of SEA, Ltd. One of the defendants, Ambitech Engineering, was charged with negligence in the design of the plastic piping, which was serving as a temporary by-pass for the return cooling water line of ExxonMobil's Joliet refinery. The plastic pipe uncoupled at a welded intersection during plant operation. The resulting shutdown resulted in a very large business interruption claim and a smaller physical loss/damage component. As to Ambitech, the underlying defendant, contractor Amex (who installed the plastic pipe and performed welding of the sections) alleged that Ambitech was negligent in the design of the specified piping. Specifically, the issue surrounded whether a thicker wall section ought to have been specified in conformance with ASME standard B 31.3 and whether the failure to specify a thicker wall section led to the de-coupling event. .
The attack on Dr. Biery and his opinions was not foundational, but rather focused on the lack of methodology/substantiation in expressing opinions which were challenged as being unsupported and subject to the Daubert prohibition on the expression of conjecture passing as expert opinion. Dr. Biery was of the opinion that Ambitech did not exercise the requisite degree of care/skill in detailing the HDPE pipe since the specified by-pass had a wall thickness "thinner" than what was required under ASME B31.3 requirements. Ambitech contended that the wall thickness was of no legal consequence since there was never any credible evidence upon which Dr. Biery could say that the pipe ever experienced heat/pressure conditions in situ exceeding the installed pipe's material capacities. Hence, you had a situation where a party's alleged breach of duty was not causative of the loss since the breach could not be proven as constituting a proximate cause of the loss. Judge Kendall ruled that Dr. Biery is not allowed to testify that the allegedly incorrectly specified plastic pipe failed in service because of plant operating conditions. Dr. Biery will only be allowed to opine that there was a deviation from B31.3 requirements but won't be able to testify that it was causative of the loss.
According to the 7th Circuit it does when someone seeks payment for those materials by submitting a claim to an insurance company.
One method of recovering for materials on a site or at a shop that have been damaged by a storm or rain is to submit a claim to the property insurer. Most property insurance policies have an “in the open” exclusion.The terms of the exclusion may vary, and that variance is important, but the exclusion is usually present.
Oddly, up until recently, the issue of interpreting the phrase “in the open” from a property policy’s exclusion hadn’t been litigated in front of the 7th Circuit… which is where the case of Twenhafel v. State Auto Property and Casualty Ins. Co. (Doc. No. 08-4275) comes in.
The facts of the case from the opinion are worth reiterating in full:
“Twenhafel manufactures kitchen and bathroom cabinets. On September 22, 2006, a violent storm blew through Murphysboro, Illinois, where Twenhafel’s business is located. Before the storm, Twenhafel had some of the wood inventory he uses to make cabinets stored outdoors under an industrial covering or tarp. The tarp was secured with six-by-six oak beams and large concrete blocks which weighed about ninety pounds each and had been placed on top of the tarp. The storm lifted the tarp, along with the beams and blocks, and dropped them on the roof of a building about 150 feet away. As a result of the violent storm, the wood inventory was damaged by rain. The storm did not cause any other damage to Twenhafel’s property, except for some minor damage to the building’s roof, which was repaired by Twenhafel’s employees. The insurance policy State Auto issued to Twenhafel was an “open peril” policy which covers all losses unless specifically excluded under the terms of the policy. Twenhafel made a claim under the policy for the loss of his wood inventory. State Auto denied Twenhafel’s claim, relying on the following specific policy exclusion:
CAUSES OF LOSS—SPECIAL FORM
B. Exclusions
2. We will not pay for loss or damage caused by or resulting from any of the following:
. . . .
j. Rain, snow, ice or sleet to personal property in the open.”
The plaintiff filed suit to recover the money for the damaged lumber from his insurance.The trial court found in favor of the plaintiff and the insurance company appealed the determination.
The appellate court agreed with the district court that the phrase “in the open” was commonly understood to mean something that was “exposed to the elements” and not simply “outside.”
In reaching this determination the court pointed other cases that also offer examples of stored materials at a construction site being damaged by the elements and other courts’ determinations.
In the Victory Peach case from the New Jersey Appellate Court, the plaintiff stored personal property in a building with a damaged roof that was being repaired.Tarps were nailed over portions of the roof because the repairs couldn’t be completed in one day.A rainstorm blew the tarps off the roof and water got into the building and damaged the plaintiff’s stored property.The policy exclusion was similar and the New Jersey court found for the plaintiff against the insurance company holding that nothing in the method of protecting the property left it open to the elements.
Another example in the court’s finding came from a case in Texas and can be found in the opinion, in that case, there was no reimbursement for the damage to steel at a construction site after a rain storm, but it involved slightly different “in the open” exclusion language that included rust.
One thing is for certain, don’t cover the materials at a site with newspapers… the opinion and the oral argument took pains to contradict an “absurd” position from the insurance company:
“State Auto contends that equating the phrase “in the open” with “exposed to the elements” would lead to an absurd result because such an interpretation does not take into account the adequacy of the protection in question. State Auto argues that, under such an interpretation, a pile of wood covered by newspapers would not be “in the open” because the wood was not “exposed to the elements.” We find State Auto’s contention without merit because a reasonable person would not think that newspapers would protect property from exposure to the elements. Therefore, the interpretation does not lend itself to absurdity.” Slip Op. at 9.
The oral argument in this case is filled with the questions from the judges posing “construction site” hypotheticals to the attorney and can be heard here.
The lessons are not only to remember to make sure that there’s some policy covering the materials that are stored at a site or at a shop, but also to make certain that the way they’re preserved at that location doesn’t keep someone from getting paid if they’re damaged.
We’ve been lax lately in getting our readers interesting district court opinions on topics that are facing the industry. Today we’re pleased to rectify a small portion of that delinquency with this written opinion from Judge Goldberg regarding an engineer’s motion to dismiss a negligent misrepresentation claim.
The facts of the case from the opinion detail the parties’ involvement in the City of Chicago’sFaçade and Circulation Enhancement Project (“FACE Project”). After it was apparently sued by the City for breach of contract in connection with the construction of the FACE Project, a general contractor on the project brought a suit against an engineer hired by the City. The general argued that the engineer was hired by the “City to provide testing and review of welds and steel related to the FACE Project.” The general contended that this created a duty on the part of the engineer to advise the general, among others, of any defects that it found. Although its not apparent from the order, you can guess that the general was trying to pass through some form of damage liability, likely based on defects or errors in the welds, to the engineer.
Why is this important? In short, it is important because the economic loss doctrine usually allows architects and engineers in the state of Illinois to avoid suits based in negligence where part or all of what they were contracted to do involved creating plans and specifications and providing information that was ancillary to the construction of a building – a final project. The doctrine forces those seeking recovery against a design professional to bring an action based on the breach of the contract, the breach of the commercial expectation in the end product, the building. One of the exceptions to this rule is carved from an enterprise where the design professional is hired, not to render some end product, but to provide information with no tangible result.
Perhaps the most-cited Illinois appellate authority for not allowing a suit against a design professional in negligence when their job has involved both the creation of plans and specifications and the provision of testing and information is a 1st District case from 1999, Tolan and Son, Inc. v. KLLM Architects, Inc, et al (Doc. No. 1-98-2581). Tolan recognized the distinction between the different activities of the design professional and chose not to split hairs when both inspections and plan design performed by a design professional took place during construction of the project. Tolan ultimately held that the dual tasks of both design and inspection could not be bifurcated where the design professional created an end product:
“Based on the foregoing, we find that KLLM and Walter's work cannot be bifurcated. They were not retained to provide an analytical end product. They were retained to design and construct the townhomes. The information supplied by them during the course of construction was incidental to the tangible object--the townhomes. Therefore, the circuit court properly granted their motions to dismiss.”
What is interesting about the Tolan decision is that it extended the economic loss rule to a situation involving the design professional both prepared plans and rendered an opinion outside the scope of the plans, but within the scope, temporally, of the construction project as a whole.
This temporal factor finds its way into the analysis in the instant opinion. The opinion does not state that the engineer in this case prepared plans and specifications – “[the engineer’s] work on the FACE Project was to provide testing and review of the work performed by [the welder], to ensure compliance of the work with the Contract Documents and the approved shop drawings.” The analysis finds that because this work was taking place during the construction process, it was ancillary to the construction and design of the project and therefore the economic loss doctrine barred a negligent misrepresentation suit against the engineer pursuant to Tolan.
This raises some unique issues.
What if the construction had concluded and the test was being performed after substantial completion? One year? Three years?
Does the portion of the Tolan opinion relative to the defendant “Reiss” imply that a design professional who supplies an opinion but not plans and specifications will not be exempt from negligent misrepresentation claims when the information is not supplied during construction?
Does this opinion create a distinction between an opinion for the guidance of others in their business transactions and “inspection information and review” for the purpose of insuring compliance of the end product to the Contract Documents?
It is likely that we will be seeing answers to some of these new questions now that we’ve broached the topic.
Major construction projects can lead to major construction disputes. These disputes typically involve numerous project participants. Because the disputes are usually typically fact-intensive and contentious, the outcomes are usually unpredictable. Because of this context for construction project disputes, the...More...
We’ve been reporting repeatedly on the recent decisions regarding the different Appellate Divisions’ interpretations of the Home Repair Remodeling Act and its use as both a sword and a shield.
It’s still in its infancy, but Google Scholar’s beta version allows you to search scholarly articles, patents or legal opinions and journals. Here’s a sample search for “
On November 11, 2009 Judge Virginia Kendall of the Northern District entered memorandum opinion and orders in the matter styled, 
According to the 
We’ve been lax lately in getting our readers interesting district court opinions on topics that are facing the industry. Today we’re pleased to rectify a small portion of that delinquency with 