This, thankfully, isn’t an alarm case.
A homeowner sued an architect and a contractor for failing to cure a continuing water damage issue in her residence. What follows are the facts from the case. [Editor’s Note: Parties’ names redacted.]
The Facts
“[Plaintiff] has owned a residence in Put-in-Bay, Ottawa County, Ohio, since 1991. Put-in-Bay is located on an island, and it required all parties to take ferries to access the residence. During the time [Plaintiff] has owned the property, she has had multiple instances of water intrusion into the residence, resulting in damage to the residence and her personal property. The facts relevant to the water intrusion giving rise to the present case began in 2012, when [Plaintiff] entered into an agreement with [Roofer] for the replacement of her roof. That work was performed in 2012.”
“Three years later, [Plaintiff] again discovered water intrusion into her residence. Believing that the issue was related to a first-floor window, [Plaintiff] contacted [Contractor] to determine what work would be necessary to repair any damages and to replace the window. To determine the scope of work necessary, [Contractor] removed the exterior coverings from the residence and discovered that the water damage extended beyond the window it was inspecting.”
“[Contractor] instead found that the window directly above the one it had been asked to inspect had also suffered from water intrusion and that the wood underneath the protective exterior coverings around both windows was damaged and needed to be replaced. [Contractor] recommended to [Plaintiff] that all the rotting wood underneath the coverings be replaced, along with all windows, exterior doors and the siding. [Plaintiff] agreed, and the parties entered into a contract for the suggested repairs on Oct. 9, 2015.”
“Having had multiple issues with water intrusion into the residence in the past, [Plaintiff] sought an architect to perform four periodic inspections of [Contractor]’s work as it progressed to ensure that no further water intrusion would occur. [Plaintiff] ultimately entered into an agreement with [Architect] on Nov. 13, 2015, to perform this oversight function.”
“The agreement provided that [Architect] would provide [Plaintiff] with sealed drawings for the door and window installations, conduct the requested inspections of [Contractor]’s work and advise on any issues uncovered during the inspections.”
Limitation of Liability Provision
The contract had the following limitation of liability provision:
“Neither [Architect] nor its officers, directors, partners, employees, agents or consultants will be jointly, severally, individually or otherwise liable to the client or anyone claiming by, through or under the client, in excess of the compensation paid pursuant to this agreement, by reason of any act or omission (including breach of contract or negligence) not amounting to a willful or intentional wrong.”
The appellate court reversed the lower court, which did enforce the limitation of liability provision, and remanded back to the lower court for trial.
Why did the appellate court agree with the plaintiff that the limitation of liability clause was unenforceable? I’m going to go out on a limb and say the defense strategy doomed the Motion of Summary Judgment.
Why? Read the case if you have the time to sift through the myriad facts that the parties labored through during the discovery process. The only reason I can think of for engaging in that discovery is if Ohio law absolutely required it before a Motion for Summary Judgment can be made.
The other reason is that the defense attorneys wanted to churn the billing or simply don’t distinguish between one case and the next and go through a “defense handling process” on every case, which includes full discovery before a Motion for Summary Judgment is made, if ever. (May as well wait for trial at that point.)
The Position I Would Have Taken
I would have taken the position of “Sorry, but we are not responsible. The contract defense works as a matter of law, even if all the facts pleaded by plaintiff are true.” That approach was apparently not used; instead, the defense team tried to convince the court that defendants did nothing wrong.
Loads of issues came out during discovery that raised all kinds of issues of fact. Had the motion dealt strictly with issues of law, the court may not have gotten so weighed down in the facts.
The Kirschenbaum contracts are in use all over the country. I am not aware of a case blocking the enforcement of the limitation of liability provision (or other defensive provisions, for that matter).
If you’ve had a bad experience, let us know; same if you’ve had success.
