Target Corp. v. Greenberg Farrow Architecture, Inc., Civ. No. 10-4810 (RHK/JSM)
| Decision Date | 31 May 2012 |
| Docket Number | Civ. No. 10-4810 (RHK/JSM) |
| Parties | Target Corporation, Plaintiff, v. Greenberg Farrow Architecture, Incorporated, Defendant/ Third-Party Plaintiff, v. Jeffrey M. Brown & Associates, Inc., KNS Building Restoration, Inc., Interstate Industrial Corp., John Doe and Mary Roe, Third-Party Defendants. |
| Court | U.S. District Court — District of Minnesota |
James J. Hartnett, IV, Michelle E. Weinberg, Michael A. Ponto, Faegre Baker Daniels LLP, Minneapolis, Minnesota, for Plaintiff.
Stephen F. Buterin, Brian W. Varland, Mark J. Heley, Coleman Hull & van Vliet, PLLP, Minneapolis, Minnesota, for Defendant/Third-Party Plaintiff.
Leah K. Flygare, Bradley D. Fisher, Gerald H. Bren, Michael A. Vellon, Fisher, Bren & Sheridan, Minneapolis, Minnesota, for Third-Party Defendants Jeffrey M. Brown & Associates, Inc., and KNS Building Restoration, Inc.
Leah K. Flygare, Bradley D. Fisher, Gerald H. Bren, Fisher, Bren & Sheridan, Minneapolis, Minnesota, and Michael M. Skram, Timothy J. Leer, Johnson & Condon, PA, Minneapolis, Minnesota, for Third-Party Defendant Interstate Industrial Corp.
This case arises out of the design and construction of a Target store's rooftop-parking deck in Bronx, New York. Plaintiff Target Corporation ("Target") contracted with Defendant Greenberg Farrow Architecture, Inc. ("GFA") to design the deck's core and shell. The project was completed in 2004.
In 2006, Target brought claims against GFA for breach of contract, negligence, and indemnification, alleging purported errors and omissions in the design and construction of the parking deck. The parties resolved that action in a March 5, 2008 settlement agreement. As part of that agreement, Target and GFA released each other from all claims relating to the design or construction of the deck except "future claims for bodily injury or property damage . . . caused, in whole or in part, by latent defects in the work performed by GFA [or its subcontractors]."
On December 3, 2008, a car struck one of the deck's precast concrete panels, causing the panel to move away from the building. A subsequent investigation revealed that many of the structural connections attaching the panels to the parking deck's steel frame had failed. Target commenced the instant action on December 3, 2010, asserting claims for breach of contract, negligence, and indemnification. Two motions are presently before the Court: GFA's Motion for Summary Judgment, and Target's Motion to Exclude Expert Testimony. For the reasons that follow, the Court will deny GFA's Motion and grant Target's Motion.
Target retained GFA in 2002 to provide architectural and design services for the construction of a Target retail store in the Riverdale Plaza in New York City ("Riverdale store"). GFA also agreed to provide architectural and engineering design services for construction of adjacent retail space, including a roof-top parking deck. Target further contracted with Third-Party Defendant Jeffrey M. Brown & Associates, Inc. ("JMB") to be general contractor and construction manager for the project. (Varland Aff. Ex. T.) JMB subcontracted the project's waterproofing and concrete work to Third-Party Defendants KNS Building Restoration, Inc. ("KNS"), and Interstate Industrial Corporation ("IIC"). (Id. Exs. U & V.)
The parking deck is a composite lightweight concrete slab on a metal deck supported by a steel frame. (Id. Ex. B at 1.) The frame also supports precast concrete panels that extend above the roof, forming a parapet wall1 around the perimeter of the deck. (Id. at 2.) Each panel is connected to the deck via two slotted, threaded-rod connections cast into the back of the panel and welded to the frame. (Id.)
The parking deck has a concrete topping slab on top of waterproofing and insulation elements, all resting on a concrete structural slab. (Id. at 5.) GFA's designs for the interface between the parking deck and the precast panels called for a 10-inch curb with a "1 in. max" gap between the back of the curb and panel filled with variousstructural materials. (Id.) JMB submitted shop drawings for the design, fabrication, and installation of the precast panels, and after making several red-line changes, GFA approved the design. (Id. Ex. Z at 59, 98, 119.)
Construction began in January 2003, and GFA issued a statement of Substantial Completion in July 2004. (Id. Exs. B, AA.) Following the parking deck's completion, Target has undertaken various maintenance and repair activities, including repairing cracks in the concrete bases of light poles in October 2005 and straightening light poles in August 2007. (Id. Exs. BB, EE.)
In July 2006, Target brought claims for breach of contract, negligence, and indemnification against GFA to recover damages resulting from alleged errors and omissions it had made in designing and building the parking deck. (Id. Ex. J.) The parties settled the matter on March 5, 2008. (Id. Ex. K.) As a part of the settlement agreement, Target agreed to "release and forever discharge" GFA "from and against any and all claims . . . and causes of action of every type and character, relating to or in connection with" the design and construction of the Riverdale store. (Id. at 4.) This release, however, did not extend to "future claims . . . caused, in whole or in part, by latent defects in the work performed by GFA." (Id.) Target acknowledged in the settlement agreement that it was unaware of any latent defect claim at the time. (Id.)
In early 2008, Target hired Walker Restoration Consultants ("Walker"), a firm specializing in the evaluation and restoration of parking structures, to assess the condition of several parking structures, including the deck at the Riverdale store. (Neiderer Dep. at26, 145-46.) In reports issued in February, March, and November 2008, Walker concluded that "no immediate or safety-related repairs [were] required," (Doc. No. 55 Ex. 11 at 3), and "[p]recast walls [were] generally in good condition," (id. at 11). Walker did observe several cracks and leaks in the parking deck and recommended that Target address these concerns by either repairing trip hazards and leaks on an as-needed basis, routing and sealing all cracks and joints, or removing and replacing the topping slab altogether. (Id. Ex. 12 at 3.)
On December 3, 2008, a vehicle struck one of the precast concrete panels on the rooftop-parking deck. (Varland Aff. Ex. F at 1.) The next day, Gennady Saratovsky of Goldreich Engineering investigated the site at Target's request and detailed his observations and recommendations in a letter to Target. (Id. Ex. L.) He observed that the precast panels were separated from the curb by between two and four inches, and that a two-inch vertical gap existed between the corner panel and the adjacent panels. (Id. at 2.) He also noted that "this condition has existed for a number of years," but "was not addressed until the separation became critical," and recommended that Target immediately brace the panel to prevent it from falling off the building. (Id.) Because Lankford Construction was already on site repairing bent light poles and cracked light-pole bases, Target had Lankford brace the panels. (Koland Dep. at 24.) Saratovsky also recommended further investigation to determine whether other potential deficiencies existed. (Varland Aff. Ex. L. at 2.)
Target then hired American Engineering Testing, Inc. ("AET") to evaluate the condition of the precast panel connections throughout the building. (Id. Ex. N.) AET removed fixtures, ceiling tiles, and wall board inside the store, and it used a fiber-optic scope to directly observe seventy-five connections around the building. (Id. at 1, 3.) Sixty-five of those connections were broken and could no longer support the loads they were designed to bear, meaning the panels they connected to the parking deck were at risk of falling off the building. (Weinstein Dep. at 19-20.) Target then instituted a comprehensive inspection and repair program.
By letter dated March 26, 2009, Target formally notified GFA of the December 3 collision and the associated damage. (Varland Aff. Ex. O.) This letter also relayed Target's belief "that the entire concrete barrier wall must be replaced as a result of thermal expansion due to a latent structural design defect," and advised GFA that "[t]he repairs . . . are expected to be substantial, and Target intends to pursue any and all available remedies against GFA." (Id.)
Target then retained WJE Engineers & Architects, P.C. ("WJE") to investigate and determine the cause of the precast panel connection failures. After examining GFA's October 2002 bulletin drawings, reviewing other experts' reports and conclusions, and inspecting the parking deck first-hand, WJE concluded that the damages to the precast panel connections were the result of thermal expansion of the topping slab. (Id. Ex. B at 6.) WJE also observed that the parking deck as built deviated from GFA's designs and specifications:
A drainage mat and filter fabric were placed on the structural concrete deck in lieu of the protection board shown in the . . . drawings and two layers of . . . rigid insulation . . . each 2 in. thick, were used instead of one layer, 3 in. thick as shown in the GFA Bulletin 8 drawings.
(Id. at 5.) Despite these variances, it found the construction "in essential agreement" with the design and that "[t]he contractor faithfully followed the intent of the drawings." (Id.) According to WJE's analysis, the problem arose from GFA's failure to properly account for thermal expansion of the concrete topping slab in its design. (Id. at 6-7.)
After learning of Target's preliminary investigation, GFA commenced its own investigation and retained Thornton Tomasetti, Inc., ("TT") to investigate the cause or causes of the panel connection failures. (See id. Ex. E.) TT's report was prepared by ...
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