by James R. Keller
This article appeared in St. Louis Construction News & Review, p. 41, May-June, 1999.
Office buildings often stand for decades. The liability of those who design and supervise the construction of these buildings may last just as long.
In February, 1999, the Missouri Supreme Court decided that architects and engineers can still be responsible for defects from 39 years ago. The case is Business Men's Assurance Company of America v. Graham. The decision cost the architects/engineers $5,287,99 in jury-awarded damages.
This story begins in 1960 when BMA contracted with Skidmore, Owings & Merrill, as architects and engineers, to design the BMA office tower in Kansas City, Missouri. Construction began in 1961 and was completed in 1963. The building's exterior contains more than 4,000 panels of marble 1 1/4" thick. The panels covered all four sides of the building's vertical columns, as well as horizontal cross pieces which connected the columns at each floor. Metal anchors attached the marble to the building.
The contract provided that Skidmore would use its "best efforts" to supervise and protect the owner against defects and deficiencies, including architectural and structural. The contract stated that Skidmore did not guarantee, however, the contractor's performance.
In 1985, one marble column panel fell from the penthouse to the tower. A month later, two horizontal panels fell seven stories to the ground.
BMA hired Black & Veatch to investigate. Black & Veatch discovered significant design problems, including that at least 25% of the anchors specified were either missing or were of an incorrect type and that all of them were 1/16" thick rather than the specified 1/8". Black & Veatch found that the marble failed to meet industry standards for the early 1960's. As the years passed, the marble warped, cracked, and lost strength.
In 1986, the owners sued Skidmore and others for negligence and breach of contract. Everyone settled except Skidmore.
Skidmore argued that the owner waited too long to sue, and thus, Missouri's statute of limitations had expired. In Missouri, a lawsuit for negligence and breach of contract must be filed within five years of when the damage "is sustained and capable of ascertainment."
At trial, Skidmore presented evidence of early problems with the marble. Throughout the 1960's the marble pieces chipped off and had to be reattached. One panel was replaced. In 1975, the entire exterior of the building was recaulked.
The Missouri Supreme Court decided that these early problems were not enough to alert BMA that the system as a whole was defective. This did not occur until 1985 when the panels began to fall.
The Supreme Court recognized that the phrase "capable of ascertainment" has never been given a precise definition, even though hundreds of cases have applied the phrase. The Court seemed to agree that "capable of ascertainment" means when the damages are "substantially complete."
In complex projects, this definition may stretch considerably the time to sue. It certainly did in this case.
Jim Keller is a partner at Herzog, Crebs & McGhee, LLP, St. Louis, Missouri, where he concentrates on construction law and business litigation.