A Journey Through Masonry Reclad Litigation

A masonry cavity wall cladding system was installed at an office facility in 2012. Several years later, the owner reported stone dislodging. This article examines the background, issues, evidence, decision points, and legal analysis resulting in a reclad of the facility. This article highlights the importance of documentation, correspondence between parties, and supporting the claims for a Plaintiff-party, while facilitating continuous use of the facility, without interruption. 

In late 2016, there were initial owner reports of water infiltration and façade distress at a five-story mixed retail-office facility at a highly visible public plaza area, referred to herein as “the building.” The owner initially hired a contractor to perform waterproofing repairs at the manufactured stone façade of the building. While performing these repairs, the contractor raised concerns to the owner regarding several stone units that appeared to be in a loose or unsound condition. Furthermore, the contractor reported one stone that had fully dislodged and landed on a canopy surface prior to the contractor starting repairs. 

In January 2017, the owner engaged Walter P Moore to perform an immediate initial visual assessment of the building’s stone façade. Given the relatively recent construction timeline of the building, the owner also engaged Munsch Hardt law firm for its construction-law expertise, particularly in relation to potential construction and design defect matters. After completion of the initial site review work, Walter P Moore identified 15 stone units that appeared to be laterally displaced, thereby presenting potential falling-debris life-safety hazards. Following further evaluation and tactile push tests, it was confirmed that all 15 stone units were partially to fully dislodged, with four of them posing an immediate fall hazard risk. Emergency stabilization measures were implemented, and it was recommended to the owner to proceed with a comprehensive assessment of the stone façade to determine the extent of distress and causative factors. 

In October 2017, Walter P Moore performed a phase 2 assessment focusing on the northwest and southwest corners of the building due to the extent of visible masonry distress observable from the ground at these areas. This comprehensive evaluation included the removal and documentation of dislodged stone units, examination of mortar joint conditions, and assessment of masonry veneer anchor assemblies. The findings emphasized the need for further evaluation of the remaining stone façade areas of the building to identify other potential areas of concern and associated causative factors contributing to these masonry distress conditions.

Following phase 2, phase 3 investigations were conducted, covering additional areas of the façade not previously reviewed. An emergency assessment was initially performed to mitigate potential life-safety risks due to loose stones based on the preliminary ground-level survey. The scope then expanded to include loose-stone removal and exploratory opening assessments of the existing conditions of the masonry cavity and backup conditions at select locations. The phase 3 assessment revealed extensive mortar cracking as well as multiple as-built construction deficiencies, such as improperly and excessive spaced masonry anchors; discontinuities in the air-water barrier, including at window transitions; inadequate support of fenestration assemblies; and, most critically, numerous additional dislodged stone elements. 

These investigations progressively identified significant distress in the stone façade of the building, leading to safety concerns and a recommendation for comprehensive remediation measures, which required immediate measures to mitigate overhead hazards and led to the recommendation of a full reskin of the stone façade as the appropriate remediation measure. 

Across most jurisdictions in the United States, time is an issue from a legal perspective. This is because there are limits on how long a party must file suit or arbitration to recover damages; these limitation periods can include periods for claims agreed by contract, statutes of limitations, statutes of repose, and other statutory and contractual limitations on when or if the plaintiff party’s construction or design defect claims can be asserted. 

This timing comes into play with investigation, inspection, and claim notices, and for getting claims on file—both in court and in arbitration. Accordingly, once defects sufficient to warrant significant repair and expense were encountered, it was important to get notices of defect claims out to the general contractor and architect to satisfy notice requirements. It was also essential to file suit within the statute of limitations—usually two years from time of owner knowledge for tort claims and two years from breach for contract claims—and/or the applicable time for a statute of repose—which varies from state to state. For this case, since there was some time left before those periods of time would elapse, it was decided to commence with repairs before filing suit. This was to mitigate damages and life-safety hazards, and strategically establish the reasonable cost of repair. Accordingly, it was decided to assemble a team to perform investigation for defects during demolition and repair, document defects and resulting damage, design the recladding/repair work, perform demolition/reconstruction, and perform project management for the owner. 

Because of Walter P Moore’s familiarity with the building and the initially discovered defects, and its overall qualifications for forensic evaluation, design, and construction, they were chosen as the engineer and building enclosure consultant as well as lead design professional. In turn, they retained a qualified subconsultant architect to handle architectural issues. Once a repair design was prepared based on the findings of the initial investigations, the project was let to bid with qualified contractors and one general contractor was carefully chosen based on experience, subcontractor team members, detail orientation evident in the bid, construction schedule, and price. Lastly, the owner enlisted the services of an adept and experienced construction management company to assume responsibility for the seamless orchestration of the project’s execution. This step served as the final layer of assurance that the project would be executed with the precision, efficiency, and professionalism it demanded.