Last week, a federal appeals court brought back from the dead, a more than $6 Million lawsuit filed over materials supplied in 2000 for the first ever LEED certified Platinum building. Despite that the unpublished opinion is not binding precedent, it will have a chilling effect on green building and in particular on the selection of new or untried materials and products that are the keystone of many sustainable projects.

The Chesapeake Bay Foundation v. Weyerhaeuser Company arose from the construction in 1999 of the Chesapeake Bay Foundation’s headquarters in Annapolis, Maryland. SmithGroup designed the building and Clark Construction oversaw its construction. SmithGroup’s “green” design called for exposed structural wood members outside the building envelope, including some that penetrated the facade. Under a March 3, 2000 purchase order that it entered into with Clark, Weyerhaeuser agreed to provide Parallam PSL columns and beams for use as the exposed wood members.

Parallams, which have a rough-hewn appearance, are manufactured by bonding together strips of wood. Its contract with Clark required Weyerhaeuser to treat the Parallams with the preservative PolyClear 2000, something then new and untried.

Water damage to the Parallams was observed during construction. Following final completion of construction in late December 2000, water began leaking through the Parallams into the building. In 2001 and 2002, the leakage was investigated by two outside consultants hired by Clark. A 2001 report by one of those consultants addressed to the Bay Foundation described that such water could cause deterioration or rot in the Parallams themselves if they were not properly treated with a wood preservative.

In a damning fact that may have had more to do with this court decision than the law, the Bay Foundation “… subsequently learned that the Parallams had not been treated with PolyClear 2000 as certified, that PolyClear 2000 was not in any event well suited to the job of preserving the Parallams, and that Weyerhaeuser had knowingly given false assurances to the contrary.”

The Bay Foundation initiated this case in state court on December 3, 2010 (i.e., 9 years, 11 months and some odd days after final completion) and the case was ultimately removed to the US District of Maryland. The complaint focused on the deterioration of the Parallams. According to the complaint, Weyerhaeuser breached its contract with Clark, owed common law indemnity and contribution to SmithGroup and Clark, and was liable to the Bay Foundation and SmithGroup for negligent misrepresentation and negligence.

The federal trial court, in awarding summary judgment to Weyerhaeuser, concluded that the plaintiffs’ state law claims were time-barred. Maryland’s statute of limitations provides that “[a]civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.” Maryland follows the discovery rule, which provides that “the cause of action accrues when the claimant in fact knew or reasonably should have known of the wrong.” And the trial court reasoned the 2001 report did just that.

But, the three judge panel of the Fourth Circuit Court of Appeals vacated the more than 2 year old order (that had dismissed the case) and remanded the case for further proceedings.

The federal appellate court said, “viewing the evidence in the light most favorable to the plaintiffs, a genuine dispute exists as to whether knowledge of the water infiltration problem would have put a reasonable person on notice that the Parallams were susceptible to premature deterioration and that their PolyClear 2000 treatment would not preserve them.”

This blog will continue to watch the saga that are these disputes and differences arising out of the first LEED Platinum certified building. And while only time will tell if this case will have a chilling effect on green building, it certainly will cause architects to give pause before specifying new or untried materials and products that are the keystone of many sustainable projects.



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Stuart Kaplow is an environmental attorney and the principal at the law firm that bears his name, Stuart D. Kaplow, P.A.

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