Architecture firm, subcontractors dispute cause of ductwork problems

By GUY LORANGER, Staff Writer

A professional negligence dispute between architects who designed the Charlotte Bobcats Arena and the subcontractors who installed its HVAC ductwork system boiled down to a simple question: Was the mistake in the game plan or the execution?

The subcontractors, Nash and Applegate, claimed that designs supplied to them by the Ellerbe Becket architecture firm were flawed and forced them to reroute their work at a hefty cost.

The architect, however, insisted its job was to merely provide "diagrammatical drawings" of the arena's ductwork system, and that the subcontractors' duty was to coordinate with others to make sure the ductwork was routed to fit properly.

After hearing eight days of testimony, a Mecklenburg County jury pinned the blame on the game plan for the "fast-track" project, which was launched in May 2003 and completed in October 2005. But the architecture firm has since filed motions for post-trial relief.

At stake is a $2,381,150 verdict, rendered late last month, which marked the entire amount that the subcontractors had asked for at the start of the trial.

"I understand there is a good deal of tension between architects and contractors concerning with these fast-track projects where the line is drawn between the architect's design responsibility on one hand, and the contractor's coordination responsibility on the other," said Charlotte attorney James C. Smith, who represented the subcontractors along with Roger C. Jones and Nicole L. Campbell of Columbia, Md.

"You tend to think the architect is the designer, and the contractor is the builder," Smith said, "and that is a distinction that I believe we were able to successfully create in arguing the case to the jury."

Charlotte attorney Roy H. Michaux Jr., counsel for the architecture firm, said he could not comment on the case. In its post-trial motions, the firm has sought judgment notwithstanding the verdict and a new trial, or at least a new trial on damages.

The motion objects to testimony by one of the subcontractors' officials in which he claimed that his company spent $8.5 million on the project despite being paid only $6.1 million, meaning it would need $2.4 million more just to break even.

"These figures had nothing to do with issues of negligence or contributory negligence and were highly prejudicial to the defendant," the motion states. "The verdict was excessive and, for the most part, appears to have been based on sympathy."

As of deadline for this edition, Judge Albert Diaz had not yet entered judgment in the case, William R. Nash, Inc. and Applegate Heating & Air Conditioning, Inc. v. Ellerbe Becket, Inc. A proposed judgment was submitted to the court Feb. 2.

Fast-track project

According to Smith, in conventional "design-bid-build" projects, the entire design is completed before construction begins. In this "fast-track" project, however, the work was broken into packages, with each one designed, bid and constructed separately.

"Our point was that doesn't change the standard of care with respect to the design of each individual package, which still has to be complete and accurate when it's issued for bids, notwithstanding that the overall project might be a fast-track project," Smith said.

According to the complaint, which the subcontractors filed in May 2008, the city of Charlotte the arena's owner entered into a contract with Hunt Construction Group in May 2003 to manage the arena project.

Then, in May 2004, Hunt entered into a subcontract with Nash to perform mechanical, HVAC and plumbing work on the project. A few months later, Nash entered into a subcontract with Applegate.

According to the lawsuit, there were problems with the designs that Ellerbe Becket had provided to the subcontractors at the time they bid on the project, which were revealed in the ensuing months. The suit also claimed the firm had been negligent in its administration of the project's plans.

In particular, the subcontractors said that they had to reconfigure kitchen exhaust grease duct systems to make them building-code-compliant and able to fit in the spaces designed to house them.

For instance, the ducts were supposed to be designed to slope toward hoods that hang above the kitchen area so that grease slides back to the hoods' grease receptacles.

The subcontractors claimed that, in this case, the design had a slope away from the hoods, which required the addition of grease-collection troughs that weren't included in their original bid.

They also contended that they had to re-route all of the HVAC ductwork in the arena's upper bowl because the design had the ductwork running into steel trusses that supported the roof.

The subcontractors settled a breach-of-contract claim against the city in January 2009 for $75,000, which left only the professional negligence claims against the architecture firm.

At trial, Ellerbe Becket denied negligence and argued that the subcontractors were contributorily negligent for failing to properly coordinate with other contractors in dovetailing the ductwork systems with all of the other systems.

In its post-trial motions, the firm claimed that "shop drawings" that the subcontractors had submitted for its review during the course of construction showed how they intended to install the ductwork. Those shop drawings gave no indication that there would be an extra cost, the firm claimed.

The subcontractors, however, maintained throughout the trial that they should not be held responsible for any alleged flaws with the design.

"If I had to say there was a theme, it was that the architect was trying to foist off its design responsibilities on the contractors whose job was to build and install," Smith said. "So, our theme was, 'Look, you design, and we'll build it, but don't put on us the design responsibilities that your own contract with the city says are yours.'

"One of our arguments was that contractor coordination involves minor modifications that typically don't have any significant cost implications, but in this case, the cost implications were major. And I think we were able to persuade the jury that this was not a problem with contractor coordination."

Verdict Report

Type of action: Architect's professional negligence

Injuries alleged: Subcontractors' costs incurred to perform extra work required to remedy deficiencies in project architect's design of kitchen exhaust and HVAC ductwork systems in the Charlotte Bobcats Arena

Case name: William R. Nash, Inc. and Applegate Heating & Air Conditioning, Inc. v. Ellerbe Becket, Inc.

Case number: 08 CVS 11915

Court: Mecklenburg County Superior Court, Special Superior Court for Complex Business Cases

Judge: Hon. Albert Diaz

Verdict or settlement: Verdict (jury)

Date: Jan. 21, 2010

Amount: $2,381,150

Plaintiffs' expert: Todd W. Fogelberg, P.E., chief mechanical engineer, MP&E Engineering (Brentwood, Tenn.)

Plaintiffs' attorneys: James C. Smith of Bradley Arant Boult Cummings (Charlotte); Roger C. Jones and Nicole L. Campbell of Huddles Jones Sorteberg & Dachille (Columbia, Md.)