Chesapeake Bay Foundation, Inc. v. Weyerhaeuser Co.

848 F. Supp. 2d 570, 2012 WL 987600, 2012 U.S. Dist. LEXIS 39886
CourtDistrict Court, D. Maryland
DecidedMarch 23, 2012
DocketCivil Action No. 8:11-CV-00047-AW
StatusPublished
Cited by6 cases

This text of 848 F. Supp. 2d 570 (Chesapeake Bay Foundation, Inc. v. Weyerhaeuser Co.) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chesapeake Bay Foundation, Inc. v. Weyerhaeuser Co., 848 F. Supp. 2d 570, 2012 WL 987600, 2012 U.S. Dist. LEXIS 39886 (D. Md. 2012).

Opinion

MEMORANDUM OPINION

ALEXANDER WILLIAMS, JR., District Judge.

The following Plaintiffs bring this action: The Chesapeake Bay Foundation, Inc. (CBF); SmithGroup, Inc. d/b/a KCF-SHG Incorporated (SmithGroup); and Clark Construction Group, LLC f/k/a The Clark Construction Group, Inc. (Clark) (collectively “Plaintiffs”). Plaintiffs assert this breach of contract and negligence action against Defendants Weyerhaeuser Company formerly d/b/a Trus Joist MacMillan and Weyerhaeuser NR Company formerly d/b/a Trus Joist MacMillan (collectively ‘Weyerhaeuser”). The instant action also includes as Third-Party Defendant PermaPost Products Co. (Permapost), against whom Weyerhaeuser has asserted a Third-Party Complaint.

The following motions are presently outstanding: (1) Weyerhaeuser’s Motion for Summary Judgment; (2) Permapost’s Motion for Summary Judgment Against Weyerhaeuser; (3) Weyerhaeuser’s Motion for Summary Judgment Against SmithGroup; (4) Weyerhaeuser’s Motion for Partial Summary Judgment Against Clark; (5) Weyerhaeuser’s Motion for Summary Judgment Against CBF; (6) Weyerhaeuser’s Motion for Leave to Supplement Motions for Summary Judgment Against All Plaintiffs; and (7) Permapost’s Motion to Strike Certain Evidence of Plaintiffs’ Claims for Damages. The Parties have [574]*574fully briefed the issues, and the Court held a hearing in the instant action on March 7, 2012. For the reasons articulated herein, the Court issues the ensuing rulings: (1) the Court GRANTS Weyerhaeuser’s Motion for Summary Judgment; (2) DENIES AS MOOT Permapost’s Motion for Summary Judgment Against Weyerhaeuser; (3) DENIES AS MOOT Weyerhaeuser’s Motion for Summary Judgment Against SmithGroup; (4) DENIES AS MOOT Weyerhaeuser’s Motion for Partial Summary Judgment Against Clark; (5) DENIES AS MOOT Weyerhaeuser’s Motion for Summary Judgment Against CBF; (6) DENIES AS MOOT Weyerhaeuser’s Motion for Leave to Supplement Motions for Summary Judgment Against All Plaintiffs; and (7) DENIES AS MOOT Permapost’s Motion to Strike Certain Evidence of Plaintiffs’ Claims for Damages.

I. FACTUAL AND PROCEDURAL BACKGROUND

The instant dispute traces to the construction of a “green” building on the Chesapeake Bay called the Philip Merrill Environmental Center (Center). The Center is located in Annapolis, Maryland and is the headquarters of Defendant The Chesapeake Bay Foundation, Inc. (CBF). CBF is a nonprofit whose stated mission is to save the Chesapeake Bay (Bay).

CBF entered into two principal contracts in conjunction with the Center’s construction. The first contract was with Plaintiff SmithGroup, Inc. (SmithGroup). SmithGroup is an architectural and engineering services corporation. The contract between CBF and SmithGroup dealt with the Center’s design. Doc. No. 2-2. CBF and SmithGroup entered into this contract in August 1998. On September 27, 1999, CBF entered into a separate agreement with Plaintiff Clark Construction Group, LLC (Clark). Doc. No. 2-1. Clark provides general contracting and construction services.

Consistent with CBF’s mission to save the Bay, the Center’s construction contemplated the use of recycled and environmentally friendly materials. A significant portion of the Center consisted of glue-laminated wood members. Per the project’s design, some of these wood members were exposed to the elements.

In March 2000, Clark entered into a purchase order with Defendant Weyerhaeuser. Doc. No. 2-3. Weyerhaeuser is an integrated forest products company. Under the purchase order, Weyerhaeuser agreed to provide Parallam® PSL columns and beams (Parallams) for use as the exposed wood members. Weyerhaeuser also thereby agreed to treat the Parallams with a wood preservative called PolyClear 2000. See, e.g., Doc. No. 90-1 at 13 ¶ 10. The Center’s construction started in late 1999 and finished in December 2000.

Shortly after the Center’s construction was complete, the Center started to experience water leaks. In response, in April 2001, Clark hired a forensic engineering expert, Wiss, Janey Elster & Associates, Inc. (Wiss Janey) to survey the leaking problem. On May 8, 2001, Wiss Janey submitted a report memorializing the findings of its survey (2001 Report). One of the “primary objectives” of the 2001 Report was to “offer an opinion as to the anticipated long-term durability and performance of the facade materials, components and systems currently in service at [the Center].” Doc. No. 61-7 at 1. Pursuantly, the 2001 Report expresses the following concerns about the Parallam:

On this project, the use of [Parallam] as an exposed element on the building facade is cause for some concern in that, a) it includes inherent irregularities at the exposed wood surfaces that, although attractive in appearance, are in[575]*575herently difficult to seal; ... and c) the wood members themselves [Parallam] do not appear to be pressure treated and in several areas also do not appear to have been properly treated in the field with the specified wood sealer/coating. Each of these concerns, if not properly addressed during construction, has the potential to result in exterior wall rain water penetration and/or an accelerated rate of deterioration of the exposed wood elements at the building facades.

Id. at 5.

Plaintiffs’ water leak investigation continued into 2002. In May of that year, Clark engaged Norman Vaughn, Jr. of Vaughn Woodworking Consultants (Vaughn). After inspecting the Center, Vaughn issued a report on May 24, 2002 (2002 Report). Doc. No. 61-17. The 2002 Report notes existing damage to the Parallam:

The wood trusses and columns are moving and splitting. The movement is so dramatic that many of the columns are distorted and are no longer flat and smooth. The surface splits go deep into the [Parallam], The manufacturing technique described above has caused voids within the trusses that are visible both on the surface and on the exposed ends. These voids run intermittently throughout the entire length depending on the length of the lumber strands....

Id. at 2. In its “Conclusions” section, the 2002 Report again notes existing damage to the Parallams and states that the specifled treatment and coating system failed to adequately protect them:

The pressure-treatment along with the 3-coat finish system has failed to keep the wood protected. The voids and splits in the Parallam have allowed the water to enter the wood causing the wood to swell and the repeated reduction of that humidity causing the wood to shrink. That shrinking and swelling movement has caused cracking at the joints, the wood to warp and become out of plane at the interior column joints.

Id. at 3.

Plaintiffs contacted Weyerhaeuser after receiving the 2001 and 2002 Reports in furtherance of its investigation. Weyerhaeuser responded by participating in remedial efforts to stop water from intruding into the Center, such as by applying a “proprietary sealant or some kind of polyurethane product around the Parallams.” Pls.’ Opp’n Defs.’ Mot. Summ. J. 8, Doc. No. 70 (citing Doc. No. 70-5 at 130:9-14). During this period, at least three Weyerhaeuser representatives examined the Parallams and failed to note the presence of rotting. See id. at 8-9 (citations omitted). Furthermore, various Weyerhaeuser representatives allegedly assured Plaintiffs that the Parallams had been properly treated and were appropriate for the project. Id. at 11 (citing Doc. No.

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Cite This Page — Counsel Stack

Bluebook (online)
848 F. Supp. 2d 570, 2012 WL 987600, 2012 U.S. Dist. LEXIS 39886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chesapeake-bay-foundation-inc-v-weyerhaeuser-co-mdd-2012.