Construction Defects - Defense Verdict

November 8, 2012

Earlier this month a Multnomah County (Portland) Oregon jury awarded Smith Freed & Eberhard's contractor client a defense verdict after a 3 week construction defect trial.

This was Oregon's first condominium conversion case to go to jury verdict.The project was a 10 story building originally constructed in 1965, but converted to condominiums within 10 years of the lawsuit. Claims involving defects in condominium conversions have been the latest trend of lawsuits in the Portland metropolitan area.

The plaintiff was the Washington Park Homeowners Association which had sued the developers, mechanical contractor, roofer, window manufacturer and Smith Freed & Eberhard's client, the contractor who painted the building exterior and installed replacement windows.

One defendant got out on summary judgment, but all the other defendants settled with plaintiff before trial. Smith Freed & Eberhard's clients defense at trial was lack of causation. According to trial attorneys Jack Levy and Kathrin Dragich who interviewed the jurors after the verdict, the jury agreed with the lack of causation argument. The building had damage, which trial attorneys Jack Levy and Kathrin Dragich argued could be repaired on a limited basis.

One of the newsworthy aspect of this verdict is that the jury did not buy the plaintiff's expert's opinion relating to plaintiffs scope of repairs, nor did they believe that the construction repair bids were reasonable. Plaintiff expert's scope included a couple of approaches, both involving the removal and replacement of all siding and windows. Estimates ranged from $3.4 to $4.6 million, all of which was targeted at the Smith Freed & Eberhard client.

The jurors appeared to clearly see this approach as overreaching and as a betterment to the project. Smith Freed & Eberhard's theme was that normal people, dealing with issues in their own lives, make targeted repairs to defined problems. Normal people don't tear down the house when a few windows leak.


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