Source: http://www.delmarvanow.com, October 22, 2011
By: Sarah Lake
As a jury trial for the city’s lawsuit regarding its faulty wastewater treatment plant approaches, the roster of defendants is growing.
O’Brien & Gere, the company that designed the plant, and Construction Dynamics Group Inc., the project’s construction manager, have filed complaints that will pull a total of five third-party defendants into the lawsuit.
In its original complaint, the city claims OBG and CDG are responsible for numerous design and oversight defects at the new plant and, because the facilities do not function properly, the city is not meeting the requirements of the Maryland Department of the Environment’s issued wastewater discharge permit, for which the city faces civil penalties.
Should OBG and CDG be found responsible for the plant’s defects, these third-party complaints will attempt to hold liable the five companies also associated with the project.
Third party complaints
OBG has filed complaints against Siemens Water Technologies Corp., Trojan Technologies Inc. and Parkson Corp. — the companies that manufactured some of the plant’s operating systems, which were designed by OBG.
According to court documents, Siemens provided the U.S. Filter Dragon Dryer, or sludge dryer; Trojan provided the Trojan Swift Ultraviolet Light system; and Parkson provided the Dynasand system, or effluent denitrifying filter system. The city alleges that none of these systems operate properly.
According to court documents, OBG states that although it designed these systems, the third party defendants provided guarantees they would function properly, therefore OBG is not liable.
OBG has listed several counts in its complaint including requests for indemnification and contribution from the third party defendants should OBG be found liable by the jury. Additionally, OBG charges the third party defendants with breach of warranty, breach of merchantibility and negligent misrepresentation.
CDG has filed complaints against Pizzagalli Construction Co. and AquaLaw PLC.
According to court documents, Pizzagalli was contracted for construction of the plant. In CDG’s complaint, attorneys highlight several conditions in Pizzagalli’s contract including a warranty guaranteeing work free from defects.
Also, the contract states that as part of Pizzagalli’s duties, obligations and responsibilities, “all labor furnished under this contract shall be competent to perform the tasks undertaken, that the product of such labor shall yield only first-class results, that all materials and equipment provided shall be new and of high quality, that the completed work will be … of high quality, without defects.”
Regarding AquaLaw, CDG alleges that because the firm assisted the city throughout the process, they are liable. The complaint states that attorney Richard Sedgley, who is employed by AquaLaw, is a licensed engineer with knowledge and experience in the operation and construction of wastewater treatment plants.
“AquaLaw … provided (the city with) engineering, management, legal and related services according to the care and skill ordinarily used of members of its professions practicing under similar conditions at the same time and in the same locality,” the complaint states. “All such services were performed or managed by Mr. Sedgley and AquaLaw is vicariously liable therefor.”
CDG lists several counts in its complaint, charging Pizzagalli with breach of warranty and requesting contractual indemnity and contribution. CDG has requested contribution from AquaLaw.
Extension request
The jury trial is scheduled to begin May 1, 2012.
Because several third party defendants have been pulled into the lawsuit, OBG requested a six-month extension on the jury trial “to complete discovery, with trial to commence no earlier than Dec. 3, 2012.”
Attorneys representing the city requested the judge deny OBG’s motion, stating neither defendant proposed a trial date and both waited until the very last minute to “engage in permissive third-party practice.”
The judge ruled that all scheduling related matters will be reviewed at a Nov. 18 hearing “at which all parties and/or their counsel shall attend.”