Lawsuit Over Green Building Gets Green Light

A federal appeals court has allowed the Chesapeake Bay Foundation to move forward in its litigation against Weyerhaeuser Company over construction flaws at the Foundation’s Annapolis headquarters.

Two years ago, a lower court granted a summary judgment to Weyer haeuser on the grounds that the suit, filed almost ten years after the construction was completed, was time-barred. But the Fourth Circuit Court of Appeals has now overturned that decision, setting the stage for a trial.

The case involves the use of unusual building materials in the 2001 construction of the Chesapeake Bay Foundation’s Philip Merrill Environmental Center, the first building to receive the U.S. Green Building Council’s Platinum LEED rating.

The green design called for exposed structural wood made of Weyerhaeuser “Parallam PSL” columns and beams, a product manufactured by bonding together strips of wood. To prevent rotting, Parallams are pressure-treated with a wood preservative. In its contract with the Foundation, Weyerhaeuser agreed to use the preservative PolyClear 2000.

Not long after construction ended, the Parallams began rotting. Weyerhaeuser assured the Foundationthat the beams were protected by Polyclear 2000. Through 2004, the Foundationtried to fix the problem and seemed to have succeeded, but in 2009, an investigation found further deterioration. In addition, the Foundationdiscovered that Weyerhaeuser had not treated the Parallams with PolyClear 2000 as claimed, and that the treatment might not have been effective had it been performed.

The Chesapeake Bay Foundationsued Weyerhaeuser for breach of contract and negligent misrepresentation, seeking damages for the expenses it had incurred. Weyerhaeuser, however, won a summary judgment on the grounds that the suit violated Maryland’s three-year statute of limitations. Weyerhaeuser claimed that the plaintiff had been made aware of problems as early as 2001.

The Fourth Circuit Court of Appeals overturned the summary judgment, ruling that there were questions of fact to be resolved at trial. Not all of the problems may have been disclosed in 2001, and Weyerhaeuser ‘s own behavior may have prevented some problems from being discovered until much later.

Though it concerns a state-of-the-art LEED building, the suit involves a problem that many building owners, developers and contractors fearthe belated discovery of a serious defect in design or construction. Such problems can be disruptive to both plaintiffs and defendants and extremely costly to the party ultimately found liable.

The real estate litigation attorneys at Longman & Van Grack have expertise representing real estate industry professionals in all types of business disputes. Contact us today at (301) 291-5027 to schedule a free consultation