Construction Law
| Publication year | 2022 |
Construction Law
Peter M. Crofton
David R. Cook
C. Jackson Parker
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In addition to common issues of construction law, cases from this year's Survey period address novel issues such as the interplay of construction law and constitutional law and mandatory COVID-19 vaccines.1 As predicted in last year's survey article,2 cases covered this year address the continuing effects of the COVID-19 pandemic. Moreover, while construction projects resumed, the industry faced normal problems as well as unprecedented supply-chain difficulties.
First Amendment law is one of the more complex aspects of constitutional law. Fortunately, when freedom of expression and architectural design issues are intermingled, the resulting opinion can be downright entertaining. If that were not enough, add in a heaping helping of sarcasm and infighting between appellate panel members, and the case becomes a "must read" in legal circles; both majority opinions and dissents often liberally use renderings and other visual media to advance their arguments.
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Such is the case, for example, with the United States Court of Appeals for the Eleventh Circuit's decision in Burns v. Town of Palm Beach.3 The facts are relatively straightforward: Donald Burns sought to replace his home with one that was "a reflection of his evolved philosophy of simplicity in lifestyle and living with an emphasis on fewer personal possessions."4 In an effort to live in a house intended "'to be a means of communication and expression of the person inside,'" Burns submitted plans to the Town of Palm Beach, proposing
demolishing his existing 10,063 square foot mansion and building in its place a 25,198 square foot mansion in the midcentury modern design. [Burns's] emphasis on fewer personal possessions included two stories and a basement containing a five-car garage, wine storage area, and steam room. The first floor would have an open-air entry . . . . [that] would lead to the pool, spa, and cabana.5
The town rejected Burns's plans as being inconsistent with the other homes in the immediate vicinity, even after Burns scaled down his plans to a 19,594 square-foot design that included a wall and landscaping that would obscure the view of the home from most vantages.6 Not to be deterred, Burns sued the town in federal court alleging the town violated his Fourteenth Amendment rights to due process and equal protection.7 The United States District Court for the Southern District of Florida, applying the three-part predominate purpose test laid out in Mastrovincenzo v. City of New York,8 upheld the town's rejection of Burns's plans after determining that the predominate purpose of the proposed house was "'to serve as a residence, not as a piece of visual art.'"9
Burns appealed the district court's decision to the Eleventh Circuit.10 On appeal, Burns found a majority that did not countenance his views and a sympathetic judge who wrote a dissent that was sharply critical of the majority's reasoning and conclusions.11 The resulting majority opinion is, in turn, chock-full of side comments about the dissenting opinion. For example, the dissent repeatedly referenced other
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architectural structures that had not been raised in the proceeding below, including the Roman Forum, the U.S. Capitol, and Versailles.12 The majority lambasted the dissent for "escap[ing] the confines of the record to look for evidence that the parties never put forward and the district court never considered."13
The majority and the dissent also vehemently disagreed on the importance of the majority's affirmance of the lower court's decision.14 The majority expressly stated that given the facts concerning Burns's application, the court need not and was not deciding "the harder issues of whether residential architecture can ever be expressive conduct."15 Nevertheless, the dissent argued that the majority's decision "virtually ensures that no piece of residential architecture will ever garner First Amendment protection."16 This prompted the majority to directly rebuke the dissent: "The dissenting opinion is wrong about what we have—and haven't—decided today. To dispel any lingering confusion, we emphasize again that we are not deciding whether residential architecture can ever be expressive conduct protected by the First Amendment."17
The takeaways from this opinion are both narrow and broad. On the specific legal issue of whether residential architecture can be speech protected by the First Amendment, the determination is kicked down the road for decision on different facts. While on the broader issue of how judges decide cases, the lesson appears to be that architecture is like pornography—judges react to the underlying content as much, if not more, than they do to the applicable law.
The United States District Court for the Northern District of Georgia determined that actionable professional negligence is not limited to violations of a professional standard of care.18 In Fireman's Fund Insurance Co. v. Carpet Capital Fire Protection, Inc.,19 an insurance company paid a claim for fire damage and brought a subrogation action
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against the party allegedly responsible for the $11 million in damage.20 That party was the fire protection inspection firm that performed periodic tests and inspections of a fire sprinkler system. The damage was caused by a fire that started in a space with no sprinkler that the inspector neither designed nor alerted the building owner as to its condition.21
The insurance company filed suit alleging professional negligence, breach of contract, and negligence per se; the defendant moved to dismiss the complaint.22 The parties both alleged, and the trial court agreed, that the inspection of fire sprinklers was governed by National Fire Protection Association Publication 25 (NFPA 25).23 The court granted the motion to dismiss the claims of negligence per se and breach of contract;24 however, it denied the motion as to the negligence claim.25
In allowing the negligence claim to proceed, the court explained that a professional's duty is not limited by a professional standard set by an industry group, such as NFPA 25.26 A professional is required to satisfy common law duties such as the duty to perform work in a skilled and diligent manner.27 The case teaches that a professional cannot simply use a professional standard of care as a checklist. Common law duties supplement any applicable standards of care recognized by industry groups.
In another subrogation case brought by Fireman's Fund Insurance Company, the Georgia Court of Appeals addressed the admissibility of expert opinion concerning why two air-handling units froze and caused flooding in a hotel.28 In Fireman's Fund Ins. Co. v. Holder Construction Group,29 the hotel owner hired Holder to renovate the hotel and install
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two rooftop air-handling units.30 After installation, outside temperatures dropped and the units failed to enter freeze-protection mode. As a result, water froze inside the units' coils and began to leak inside the hotel. When the hotel's insurer, Fireman's Fund, paid $1,306,470.86 for the resultant loss, it brought a subrogation action against Holder and its subcontractor.31
The parties' experts presented differing views of the cause of the units' failures.32 The defendants filed motions for summary judgment and to exclude testimony of Fireman's Fund's expert. The Cobb State Court agreed and excluded the expert testimony because it found the testimony to be unsupported and contradictory, and because it was an inadmissible legal conclusion. Finally, after excluding the expert's testimony, it granted summary judgment to the defendants. Fireman's Fund appealed the rulings.33
The court of appeals rendered a mixed ruling.34 It agreed that the trial court erred in excluding much of the testimony of Fireman's Fund's expert.35 Unlike the trial court, the appellate court found some evidence to support the expert's opinion.36 Additionally, even if the trial court found the testimony of the defendants' experts to be more persuasive, it should not have excluded testimony of Fireman's Fund's expert.37 It is the jury's role to weigh the strength of each experts' testimony.38
However, the court of appeals agreed with the trial court in excluding opinions as to "ultimate legal conclusions."39 The expert had opined that the subcontractor committed negligence by locking open the air damper, which was the core question for the jury.40 Distinguishing between testimony informing the "ultimate issue of fact" and an "ultimate legal conclusion," the trial court and appellate court agreed that the expert's opinion constituted a legal conclusion.41 Nevertheless, the trial court erred in excluding all testimony of the expert, and Fireman's Fund put
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forth admissible evidence of the defendants' fault.42 Therefore, summary judgment was improper.43
Termination of a construction contract can be fraught with perils. But the contractor in High Tech Rail & Fence, LLC v. Cambridge Swinerton Builder, Inc.44 managed to terminate its subcontractor's work and avoided adverse consequences.45 The contractor hired its subcontractor to furnish and install aluminum railings for the Centennial Park Project in Atlanta.46 The subcontractor failed to provide materials and complete the work on schedule, and the contractor sent multiple notices to cure. When the subcontractor sent no laborers to the job for three consecutive days, the contractor sent a notice of termination. Additionally, the contractor contacted the subcontractor's aluminum supplier to buy, on its own account, the materials needed to complete the project.47
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