Court Dismisses Case Concerning Allegedly Defective Window System
August 5, 2010

"How should courts respond when an alleged defect has been remediated and evidence concerning that defect has been spoliated?" That was the question before the New Jersey Supreme Court during the recent case of Robertet Flavors Inc. v. Tri-Form Construction Inc. The case surrounds a commercial building constructed with an allegedly defective window system that was repaired by the building owner without an inspection from the contractor that originally installed the windows.

According to a syllabus of the case plaintiff Robertet Flavors Inc. acted as its own general contractor for the construction of its new headquarters. Defendant Tri-Form Construction and its president, Robert Karabinchak, were hired to serve as construction manager. Robertet Flavors also chose the defendant, Academy Glass, to install a strip-window system, which it completed in 1998. Court documents note that in early 1999, after Robertet moved in, the company noticed water leaking in through the window system and "Academy Glass made several visual inspections and undertook some repair efforts, mainly suggesting re-caulking."

The leaks reportedly continued and by 2001 water damage was visible. Robertet turned to Joseph Frezza, an environmental consultant, to address the problem. Frezza indicated that some windows had to be removed to determine the cause, the documents say.

In January 2002, Robertet filed a complaint against Academy Glass, Tri-Form and Karabinchak.

Meanwhile, Pioneer Glass was brought in to remove a section of the windows at which point mold was discovered. A consultant was brought in to evaluate the mold and reported a significant problem. Because of that, all of the strip windows-in addition to other contaminated materials-were replaced.

In March 2002, Tri-Form and Academy Glass served their answers to the complaint to the plaintiff's attorney, who, the court documents report, did not advise the plaintiff about Robertet's demands to inspect the building, the mold discovery or plans to replace the strip windows. However, in October 2002, Mark Epstein, plaintiff's president, learned that his attorney had been hospitalized, at which point he says he called the counsel for Academy Glass and told her about the plans to begin repairing the strip windows. The counsel for Academy Glass testified that when Epstein called, she told him she could not talk to him and ended the call.

Regardless, the strip-window system remediation began on December 13, 2002, and was photographed by the plaintiff as it progressed. One month later, Robertet informed its counsel that remediation was three weeks from completion. At a hearing in January 2003, the court documents say, the defendants' attorneys were alerted that remediation had begun, but reportedly was not told about the mold. Counsel for Academy Glass requested that the plaintiff refrain from further remediation until it evaluated the claims. The plaintiff refused, believing it would be impractical to halt repairs already underway. In mid-February, counsel for Academy Glass and a consultant visited the building and found that the strip-window system had been replaced and all allegedly defective conditions had been remediated.

At an evidentiary hearing, Academy Glass's expert, Herbert Cannon, explained that because the remediation was done, he could not independently evaluate the work of Academy Glass or the alleged window leaks or mold contamination. He testified that the plaintiff's photographs were insufficient for him to form an opinion about the cause of any leaks; that there were many possible sources other than the windows; that there was insufficient information to confirm or deny the number and extent of deficiencies in the windows installed by Academy Glass; and that he therefore could not give an opinion about repair alternatives that might have been less costly.

The trial court granted the defendants' motions to exclude evidence relating to the window installation, concluding that "spoliation of evidence resulted in prejudice to defendants," whose experts had no opportunity to fully investigate the cause of the leaks. The court later granted the defendants' motions for summary judgment on all window-related claims, because the plaintiff could not sustain its burden without expert proof on liability and damages.

However, the Appellate Division reversed and remanded the decision. It noted that Academy Glass had many opportunities to inspect the windows during the two years the plaintiff complained about leaks, and had "superior knowledge" about the installation of the strip-window system. The panel advised limiting the plaintiff's expert proofs to those based only on evidence obtained prior to removal of the windows. The court granted the defendants' petitions limited to the remedy available on the spoliation claim.

The courts advised that the plaintiff's strip-window claim may proceed, but be limited to the conditions observable prior to remediation, and that its experts be limited to a review of only those conditions. Documents state that as TriForm and Karabinchak had no opportunity to inspect the leaking windows before remediation, and with no independent source of evidence with which to mount a defense, the claims against those defendants could not proceed and "the only fair remedy is dismissal."

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