The lesson learned: Hire 1 design-builder

Last updated on May 13th, 2019 at 02:23 pm

Lawyers say Lomira legal liabilities may be proportional

According to documents in the Wisconsin Department of Commerce’s investigation into the collapse of Quad/Graphics Inc.’s Lomira plant, the building owners were aware of problems that eventually contributed to the collapse of the structure.

That, and the fact that different portions of the building were designed by different firms that reported directly to Quad/Graphics personnel, could make it difficult to determine who is liable for the July 12, 2002 disaster, according to construction law experts.

Peter Halls of the Minneapolis office of Faegre & Benson, a firm involved in litigation surrounding the construction of Miller Park in Milwaukee, stressed that contract language can be important in determining the parties’ liabilities for problems when they are aware of them.

"Construction contracts can address obligations to give notice of defects of which the owner becomes aware," Halls said. "There are a variety of fact patterns that could change things."

Guy DuBeau, an attorney with the Madison law firm Axley Brynelson, echoed Halls’ concerns. According to DuBeau, the impact prior knowledge of problems can have depends on context.

"If I am having someone build a house, and I see them use a material apart from what the architect specified, there is still the question of whether I necessarily know that was an improper material to use," DuBeau said. "But if the contractor tells me, ‘Hey, I really want to save you some money and use this material, which is cheaper and is not what the architect specified,’ then it is hard to make a case."

In the case of Quad/Graphics, which took occupancy of the Lomira plant despite knowledge of problems with construction and design, DuBeau said it could still be possible for Quad/Graphics to claim contractors were solely liable.

"I can see situations where they felt they had no choice but to take up occupancy," DuBeau said. "It could be they had to take up occupancy to mitigate their losses."

Halls said the fact that Quad/Graphics was listed as construction manager on the plans for the Lomira plant doesn’t necessarily have legal implications.

Separate entities reporting directly to Quad/Graphics designed the rack system, the roof and the foundation, and another engineer was involved in on-site for inspection purposes.

The terms of the contracts and the activities performed on the job are likely to be used in determining responsibility for the project, according to Halls.

DuBeau mentioned the potential for finger-pointing that results when multiple designers are responsible for different portions of the same building.

"Where there are multiple people involved, sometimes the lines between their responsibilities are not that bright or that clear," Dubeau said.

Halls said the simplest situation for an owner is often a single contract with a design-build firm.

"When you have one contract with a designer and one with the contractor, the contractor and designer can still point fingers at each other," Halls said.

March 21, 2003 Small Business Times, Milwaukee

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