CONSTRUCTION CLAIMS & DISPUTES

Accumyn’s experts analyzed a hospital’s economic damages from the additional construction costs and rent paid on an unfinished diagnostic imaging facility. Shortly after the non-profit Texas hospital entered a long-term commercial lease, began construction and ordered the necessary equipment, expansion was halted when the hospital learned that an existing ground lease with the landowner had restrictive covenants in place that prohibited diagnostic imaging and signage rights. The hospital continued to pay rent on the unfinished space, incurred significant construction delay expenses and had to give up the revenue stream it counted on from the planned expansion. Along with lost profits, Accumyn stepped in to analyze construction cost estimates and economic damages associated with the lost use of exterior signage.

Not all experts can navigate the difficult and often uncharted waters of Construction Litigation. When faced with such a challenge, our Clients need a team that is responsive, objective and thorough; a team that can provide reliable and defensible results. In 2012, Accumyn created such a team to assist a law firm in a long standing lawsuit involving its Client, the Houston office of a national architecture firm.

After being briefed about a major water damage dispute on a 234 unit condominium project in Galveston Texas, Accumyn assigned professionals in both architecture and construction management to quickly research and analyze the facts of the case. Based on Accumyn’s examination of existing documents, we prepared two letter reports that detailed both the design and the as-built characteristics of the disputed defects

Accumyn’s Robert Burnham, a licensed and practicing Texas Architect, examined the defendant’s architectural documents, the plaintiff’s inspection reports, and the contractor’s repair proposals. Additionally, at the request of counsel, Accumyn’s Robert James, a licensed engineer, reviewed the plaintiff’s documents; the contractor’s cost estimates and Burnham’s report. Mr. James also field examined the water damage and staining conditions at the site, interviewed owner representatives, and   prepared a letter report with estimates of alternative repair costs. Despite the huge volume of information, Accumyn’s Team was able to issue a thoroughly researched and documented expert opinion in just a few days

Based on 30 years of experience, and then further substantiated by his recent research, Robert Burnham concluded that, for the time and location that the defendant’s services were performed, they complied with recognized industry standards, and they had prepared adequate and suitable details and specifications for the work in question. In fact, Robert Burnham helped to show that the damage was due to contractor’s errors, and not to the Architect’s negligence.

In summary, Accumyn was able to demonstrate that the conclusions reached by the plaintiff’s consultants were not supported by facts of the case. The opposing experts not only failed to properly consider alternative explanations, their opinions were undermined by numerous gaps between the data and their opinions.
Most importantly, Accumyn’s efforts helped our client obtain a Summary Judgment for the case; thus avoiding a long, painful and expensive civil trial.

Accumyn project management specialist Robert James and chemical engineer Carl Bradow were hired by counsel for a major surety to provide an expert opinion of its position in a matter involving contractor liens on materials and equipment.  After the bankruptcy of the owner of a High Purity Isobutylene (“HPIB”) unit constructed in Pasadena, Texas, several contractors had claimed removal of their installed improvements. .  Accumyn’s research, analysis, and testimony in deposition and at court, resulted in denial of more than 80% of the contractors’ claims.

As background, counsel made the Accumyn’s experts aware of unique statutes governing the issues in the case.   Specifically, under certain circumstances, Texas law on liens and removables allows contractors to remove materials and equipment from a facility as compensation for non-payment.  The law requires that removal operations will not result in material injury to (i) the land, (ii) the pre-existing improvements, or (iii) the improvements themselves.

Accumyn was charged with provision of expert opinions in reports and testimony on construction and process technology issues that may arise in the case.  James addressed aspects of physical removal; Bradow addressed impact to plant operations.  A third party expert was engaged to opine on the value of removed material.

The three parties claiming removal of materials and equipment were the boiler supplier, the piping supply and install contractor, and the instrumentation and electrical (“I&E”) contractor.  More than $3.08 million was at stake.

Two site visits were made the experts, counsel, and   representatives of past and present owners of the HPIB unit.  Interviews were conducted and photos were taken.   Expert reports opined on (i) the ability of materials and equipment to be removed without damage to itself or to pre-existing improvements, and (ii) the market value of materials at installation and once removed.

As the trial date approached the I&E contractor relinquished its $1.45 million claim, evidently realizing upon review of expert reports and deposition transcripts that removal of instrument tubing, conduit and wire could not be removed without material self-damage and damage to pre-existing improvements. The boiler and piping fabricator maintained their positions and the matter went to trial in the United States Bankruptcy Court, Southern District of Texas, Houston Division.   The piping fabricator’s $1.10 million claim was denied.  In addition to a negative finding on the validity of that contractors’ lien, the Court found Accumyn’s expert to be a credible witness and gave “substantial weight” to his testimony.

The Court discounted the testimony of the pipe contractor’s expert witness to a certain extent, giving only “some weight” to his testimony.  Credibility had been reduced by the expert’s failure to conduct more than a five-minute drive-by at the plant.

The Court found the boiler equipment in question was situated in a manner that allowed removal under the statute and ruled a claim of $533,000 unpaid billings be awarded to the boiler supplier.  In sum, the sureties liability in the bankruptcy matter was reduced by $2.55 million.