Lawsuits are piling up against architects as they lock horns with owners over a several-year stretch of project delays, local construction attorneys said.
In the aftermath of the pandemic’s many construction sector interruptions, there’s a battle over who should take the blame for long-delayed projects. Those eager to recoup costs associated with those delays are sometimes pointing the finger at their contractors, as well as design professionals.
That’s being seen increasingly often by Andrew Carlowicz Jr. and Lawrence Powers, co-chairs of the Construction Law Department at New Brunswick-based law firm Hoagland, Longo, Moran, Dunst & Doukas LLP.
The duo has handled many disputes over the years on behalf of architects and engineers. The civil lawsuits that have emerged from this most recent trend are what they describe as interesting — and definitely some of the most complicated.
“Because, when a project finishes late, there are some instances where a delay issue was clearly the responsibility of either the design team on a project or the contractor — but, that’s rare,” Carlowicz said. “Usually, it’s many different issues caused by different parties concurrently that lead to delays.”
While property owners can’t fault an architecture firm for project delays directly related to COVID-19, what lawyers are seeing some of already — and expect to see more of — is a magnifying glass put to existing problems in planning for projects that were only exacerbated by the pandemic.
“The argument that’s being made against design professionals is that it wasn’t COVID that was the main cause of the delay, it was some issue that became apparent in January 2020 that wasn’t remedied until much later,” Carlowicz said. “That’s where you’re seeing a real intermingling of blame.”
Those suing design professionals believe they have solid ground to stand on; the design professionals, for their part, believe they have a sturdy defense.
Why make a fight of it now?
The lawyers put it this way: The pandemic has etched permanent changes into the way properties had to be designed, as well as the demand for certain facilities — retail establishments, schools or offices that have gone remote. It took some time for property owners to get a full picture of that.
“As developers have encountered that, they’ve tried to find ways to push the fact that the tenants have been going bad on them onto the design professionals,” Powers said.
Financial issues, compounded by higher interest rates and supply chain issues, have also been cause for things to get ugly. The plug has at times had to be pulled on projects facing 30% or higher price increases than were originally anticipated, Powers said.
As for whether the architects and other design professionals come out ahead or not, that’s not likely to be decided in the courts.
More than 95% of civil cases settle. These construction lawyers say you can add a few more percentage points for an industry that’s on the higher end of that statistic.
In any case, Powers said that, if you assumed a case of this sort is going to be answered outside of mediation anytime soon in New Jersey, you’d be sadly mistaken.
“Some counties aren’t trying these cases, and those that are have such a backlog of family court and other cases, as well as a judge shortage, that it’s going to be a while before a civil case like this would be resolved,” he said.