What do we really know about new building technology? What is green today can be gangreen tomorrow. This is what we learned from the Salem Courthouse Square project, one of the first LEED Certified buildings. Now, word out of Maryland is that the first ever LEED Platinum building has some major problems.
My good friend Stuart Kaplow (the most enthusiastic green attorney on the planet) recently released a new article in his periodic newsletter. Besides recommending that you all should subscribe to Stuart’s newsletter, I wanted to briefly point out the Phillip Merrill Environmental Center dispute. Since Stuart did such a good job laying down the facts, I lend you his words:
Just last month, the U.S. District of Maryland dismissed a more than $6 Million law suit filed over the first certified LEED Platinum building. The Chesapeake Bay Foundation had asserted breach of contract and negligence against Weyerhaeuser arising from construction of the LEED certified Phillip Merrill Environmental Center building on the shore of the Chesapeake Bay that had “contemplated the use of recycled and environmentally friendly materials,” including certain wood columns and beams fabricated using wood waste materials. Sometime after the building was completed in 2000, it rained and some of the “exposed wood members” got wet and swelled and shrinked resulting in “cracking at the joints” giving rise to litigation commenced some 10 years later in 2010. On March 23, 2012, the court dismissed the case in favor of Weyerhaeuser holding “that Plaintiffs’ cause of action accrued no later than May 2002 and expired more than half a decade before they filed suit.”
While the Chesapeake Bay Foundation uses its website to continue to applaud the “green” features of this building, I cannot help but wonder what that lawsuit might have looked like. Often we are stripped of valuable courtroom debate because of the expiration of claims. I support statutes of limitation and certainly rely on them in advising clients – but what a debate this could have been.
Green building defective construction cases have been slow to rise through the cracks of courts. This is great news for everyone in the industry. But there is certainly a sample out there – and many of the problems we are seeing result from the use of new, sustainable or untested materials and technologies.
The point: be cautious. There are a number of things that builders, suppliers and even manufacturers can do to reduce risk. Stuart was spot on when reminding us all that the contract is your best friend, and can save you from serious liability. Planning, testing, clear agreement and sound legal advice is key.