Morrison Mahoney Of Counsel Steve Bolotin and Partner Tory Weigand recently obtained a courtroom success on behalf of an architectural firm in Massachusetts Appeals Court. At issue was the application of the statute of limitations to claims of water infiltration at a luxury condominium building in Brookline.
The building in question was new construction. The design and specifications were prepared by another architect which then quit the project when construction started. Our client, who had been retained to do interior fit-out, was then asked to also assume contract administration for the exterior construction.
Shortly after the exterior of building was completed, unit owners began complaining of water intrusion through windows, sliding doors, and in some instances through the synthetic stucco finish. Our client determined that the materials the prior architect specified were not appropriate for the building elevation as they would not withstand wind-driven rain. However, the developer refused to change the specified materials. After over four years of partial fixes, the developer declared bankruptcy, and the condominium association sued the architects, engineers, and contractors for the project.
Because the unit owners had reported the problems to the developer more than three years before suit was filed, summary judgment was granted for all defendants on the water infiltration claims based on the state of limitations. The condominium association appealed, arguing that the unit owners only took control of the condominium association two years before suit was filed, and the statute of limitations should be tolled during the time that the developer was in control of the condominium association. The defendants argued that the developer was independent of all of the defendants, and therefore had the same incentive to pursue any valid claims as the unit owners. As such, there was no reason to toll the limitations period. The Appeals Court agreed, noting that it the unit owners were aggrieved by the developer’s failure to pursue a claim they could have done so themselves by means of a derivative action.
