Litigated Construction Case

Litigated Construction Case-1

Abstract

Due to the nature of the construction industry, there are bound to be conflicts that arise among the parties that are involved. These conflicts, most of the time, involves one party having violated a contract that had been agreed upon by the parties. It may also involve one of the parties going against the law and causing harm to the other party. Some of these cases are settled out of the court, given the prohibitive amount of time and resources that goes into a trial. They are settled through arbitration and other alternative dispute resolution mechanisms. However, there are some cases that get to trial, due to the fact that the parties involved in the litigation failed to agree on terms for settlement. This paper is going to look at such construction litigation. The case that will be looked at is Kuchmas v. Towson University. The writer will look at the issues surrounding the case up to the point where the court decided on the motions for summary judgment that were collectively moved by the defendants.

Introduction

Given the nature of the construction industry, disputes are inevitable. This is given the large number of people that are involved in any one construction project, and the number of procedures that has to be followed. There is the client, the contractor, the subcontractors, the suppliers, the authorities and other stakeholders involved in any one construction project. These people will tend to disagree at one time or the other, and their dispute sometimes ends up in the courts.

When the parties involved in the construction take their disagreement in front of the court of law, this results in litigation. Litigation is a controversy or dispute that has been referred to the courts for resolution. If the parties in the dispute fail to agree and settle the matter outside the court, it will probably end up in front of the judge or a jury. This is a trial.

There have been concerns that the costs of these litigations are increasing exponentially, more than the cost of construction it self. The reasons for this have been various. There are those that feel that the cost increases due to the fact that litigation tends to drag everyone that was

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involved in the construction into the suit. This is from the designer, the constructor, the owner of the building and other parties.

Construction cases vary in size and significance. There are those cases that are small enough and a settlement outside the court suffices. But there are others that are having a lot at stake. These are the ones that usually end in litigation. There are other dispute resolution mechanisms that can be employed to settle these disputes. These alternatives are sometimes preferred when it is estimated that the costs of litigation will be very high for both parties.

When a dispute arises in connection to any construction today, every party that was involved in the project is likely to find themselves involved in it in one way or the other. The architects, the designers, the contractors, the subcontractors, the client of the projects and others will tend to find themselves as parties to the litigation. This is despite the fact that the project might have been completed long time ago. Their involvement in the litigation will depend on the nature of the litigation and the role that they played in the project.

The party initiating the litigation might be an individual, a group of people, a representative body, an organization and such other form of plaintiffs. The litigation might have stemmed from the fact the plaintiff, or the complainant, night have been harmed, either directly or indirectly, by the project, the harm may be physical, psychological, financial or otherwise. But there must be a connection between the harm, the project or construction, and the defendants. This is what brings all the parties together in a court of law.

A case in point is where one of the parties in the construction has gone against the spirit of the contract that was signed between them. Given the elaborate nature of any construction, there arises a need to sign contracts between different parties involved in the project. A contract, been a legally binding document, has to be respected by all the parties. A breach of the contra t is a breach of law. This breach of law is taken before the courts for them to interpret the liability of either party involved.

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There are many cases that have been brought before the courts of United States of America involving matters concerning construction. The cases have been in the rise recently such that some states have courts specifically to deal with these cases. The courts are staffed with judges and other legal experts who are tasked with interpreting the laws for the construction parties. The rise in these cases might have been a result of the rising number of construction projects in the country.

This rise has necessitated the emergence of law firms that specialize in construction litigations. These firms staff their departments with legal counsels who are conversant with all the laws that pertain to construction, ranging from contracts to liabilities of the parties as far as other issues revolving around the construction are concerned.

This paper is going to discuss such one case. The case revolves around construction litigation. It was filed before the Maryland district court and the ruling made on May 15th, 2008. The case that this paper is going to discuss is

Mark Kuchmas, et al.,

v.

Towson

University

, et al.

It was filed in the court as Civil Action No. RDB 06-3281. Judge Richard D. Bennett presided over the case.

The writer will give a brief background of the case. He will then give a highlight of all of the key notes in this case, plus the arguments by either party. The implications and importance of the case will also be discussed. The paper will cover the relevant issues that revolve around the case, for example the acts that the defendants were accused of going against, and precedents that informed the ruling and the arguments.

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Definition of Terms

Given the fact that this is an analysis of a construction litigation case, there is bound to be a lot of technical terms. Despite the fact that the writer will try to put the use of the technical terms to the minimum, there are instances when changing the wording of a technical term will not deliver the desired meaning. As such, the writer will be forced to use the term. In this section, the writer provides a list of definition for some of the technical terms that are likely to be encountered in the analysis.

1. Statute of limitations

This is a statute that provides for the maximum period of time that legal proceedings should be initiated after the occurrence of events necessitating the same (Anthes: 555). This means that after a certain period of time, legal action cannot be taken and the complaint will be deemed by the courts as time-barred. This statute makes it possible to avoid continuation of liability after a certain period of time.

2: Plaintiff

This is the complainant in any legal action. A plaintiff can be an individual, an organization or a group of individuals.

3: Defendant

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This is the person against whom charges have been preferred by the plaintiff. Again, it can be an individual, an organization or a group of individuals.

4: Motion to Dismiss

This takes place in a civil case. It is when the defendant puts a request to the presiding judge claiming that even if all the allegation leveled at him were true, the plaintiff does not deserve any legal relief (Dubowe: 224). As such, the case should be dismissed by the judge.

5: Motion for Summary Judgment

This motion is also moved by the defendant in a civil case. He claims that the plaintiff has failed to raise genuine issue to be tried in a court of law. As such, the judge should rule in favor of the defendant. This motion is made before the case is tried.

6: Litigation

This is the process that involves taking a case or dispute through a court of law for resolution (Amon: 80). It takes place mainly in civil lawsuits. It involves two parties; the plaintiff and the defendant.

7: Alternative Dispute Resolution

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This is also referred to as arbitration. It is where parties in a dispute opt for other methods of resolving their dispute instead of going through the court of law. They mainly call for a third party who arbitrates their case. This form of resolution is preferred because it is cheaper and is not violent.

Objectives of the Study

Throughout the paper, the writer will be guided by one major objective. This is analyzing Kuchm as v. Towson.

To achieve this objective, the writer will be guided by several specific objectives. It is by addressing these that he will in effect address the major objective. These are as follows:

3. A summary of the case procedure and rulings

4. A discussion of the case

5. Integrating the case to the construction and       legal field

KUCHMAS V. TOWSON:

BACKGROUND

Mark Kuchmas, 28 years old college student with disability, was the plaintiff in this case (Baughman, Esquire & Richter: 468). He filed a complaint against several defendants. The first was Towson University, of which he was a student. The others were Collegiate Housing Corporation, Capstone Development Corporation, Capstone Properties Corporation and Capstone On Campus Management LLC (Baughman et al: 468). These will be referred to as the defendants in this case analysis.

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The plaintiff was represented by Brown, Goldstein and Levy law firm (Arkantir: 322). This is a private law firm in Maryland. The firm has already been identified as Maryland’s Pro Bono Firm of the Year in 2008. The recognition was from Maryland State Bar Association. This law firm has won several awards for their outstanding work, plus several high profile cases that they have won in the Supreme Court and federal appellate courts.

Through his lawyers, the defendant claimed that the defendants have gone against the Fair Housing Act which was amended in 1988. It was amended under the Fair Housing Amendments Act of 1988, here in referred to as FHA (Howard: 213). The defendants were also accused of violating the Americans with Disabilities Act of 1990. The plaintiff argued that the defendant has violated Titles II and III of this act (Bayer & Cabot: 901). The third act that the defendant was accused of violating was the Rehabilitation Act. The defendant had violated section 504 of this act (Bayer & Cabot: 901).

The defendants had filed before the court a Joint Motion for Partial Summary Judgment. The court, after hearing submissions from several witnesses, denied this motion. The motion was denied on May 13th 2008.

The Genesis of the Case

The occurrences revolving around this case started way back in the year 1999 (Anthes: 543). Collegiate Housing Foundation, one of the most famous organizations for building and renovating campus hostels, entered into a lease with the University System of Maryland (Anthes: 543). This arrangement was made on behalf of Towson University.

Under the contract, the foundation was to rent land on Towson’s campus. The lease was to run

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for a period of forty years. The foundation, after acquiring this land, was to construct and maintain private housing facilities, which could be used by the students of the university (Howard: 2009). The facility that came up was named by the developers Millennium Hall, and within no time, it was ready for occupancy.

The foundation had received some sort of state bond to enable it build and maintain this facility.

This was sourced through the Maryland Economic Development (Bayer & Cabot: 872).

Though the foundation was the force behind the project, several other players were brought in. Capstone Development Corporation was brought on board. The corporation was tasked with designing and constructing the aforementioned hall (Anthes: 544). The designing and construction was to be done in cooperation with both the university, on whose land the property was been developed, and the foundation which was behind the project.

On its turn, capstone hired Krapfkandoit Company as general contractor together with another construction company. The other construction company that was to act as general contractor with this one was Can-Do Construction Company (Dubowe: 222). Architectural design and other services were to be provided by PGAL Architects (Dubowe: 224).

One year after acquisition of the land, the foundation had completed Millennium Hall. This was in the year 2000, the same year that it was occupied for the very first time (Howard: 213). The hall composes of 108 two and four bedroom rental units that were to be occupied by mainly the university students. The hall was to be managed by two companies. These were Capstone Properties Corporation and Capstone On-Campus Management LLC (Anthes: 544).

2006: Enters Mark Kuchmas

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The above scenario was supposed to provide the reader with a clear picture of the role of each of the defendants in the construction project. It is important to note that the hall, which was to be the center of the legal storm, had been completed and in occupancy more than five years before the complainant, Kuchmas came in. But this did not stop the constructors and other parties who came and exited the scene five years ago from been named as defendants.

The plaintiff is afflicted by Friedreich’s Ataxia (Bayer & Cabot: 570). This is a condition that results in degeneration of the neuromuscles of the victim (Bayer & Cabot: 570). This means that the plaintiff was using a wheelchair for locomotion.

The plaintiff was admitted to the university in 2006. This was for the spring semester. But Towson Housing Office made it clear to him that they did not have rooms under their jurisdiction that could be accessed by a disabled person. This was at least for the semester that Kuchmas was been admitted at the campus (Arkantir: 324). The office directed Kuchmas to millennium hall, and here, the first contact between the plaintiff and the source of contention was established.

Frank Axell, the manager of the hall, was the first contact point between Kuchmas and the foundation. He told the defendant that they have one room that was accessible to a disabled person. This apartment in the male unit, however, was still been occupied, and as such, Kuchmas could not view it promptly. He was told to wait until the current occupant, whose term of stay was coming to an end, to vacate, and then he can view it. Kuchmas, trusting the manager, was assured that he has gotten a room at long last (Amon: 69). It was on this light that he went ahead and signed a lease with the management. This was in order for him to reserve the apartment, despite the fact that he had not seen it (Amon: 70). The lease was signed on December 1st 2005.

January 18th, the following year, was the day that the plaintiff was able to view the apartment for

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the first time. However, he found that the apartment did not meet the basic accessibility requirements for a disabled person. In his words, “parts of the apartment, including the bathroom, were not accessible with a wheel chair” (Drucker & Cwiklo: 79). As such, he could not maneuver around these areas, and he could neither use the bathroom or the shower. The desk area and the shower seat were also not favorable to his condition. This was made worse by the fact that Kuchmas had difficulties opening doors of the apartment. In a nut shell, the apartment was inaccessible to Kuchmas (Baughman et al: 470).

What irked Kuchmas most was the fact that the relevant authorities were not empathetic to his concerns. He specifically raised the issue with the maintenance supervisor attached to the facility. He also brought the issue to the attention of the Office of Disability Services at his college. Capstone properties were also informed of the matter. Despite all these efforts, the plaintiff did not get any assistance in form of renovations to his unit or alternative accommodation (Bayer & Cabot: 901).

Additional Plaintiffs to the Case

Kuchmas and his attorneys amended the complaint to include four more plaintiffs (Howard: 213). This action was taken after the defendants’ attorneys tried to derail the case by filing additional motions for dismissal.

The first two plaintiffs to be added were Rodney Horne and Lauren Kaplowitz (Dubowe: 226). Both were undergraduate students at the same university. They conquered with the complaints that were in the complaint sheet as presented by Kuchmas in the first time. They were of the view that the inability of the disabled students, the likes of the plaintiff, to find suitable accommodation was affecting their education negatively (Dubowe: 224). This was together with the inaccessibility of the available facilities to these students.

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The second set of plaintiffs to be added was composed of Christopher Bell and Baltimore Neighborhoods, Inc. (Bayer & Cabot: 876). The former was a lecturer and faculty advisor in the department of English in the same institution. He was also an affiliate faculty member in Cultural Studies and Lesbian, Gay, Bisexual and Transgender Studies at Towson university (Anthes: 570). His claims were supportive of the complaints submitted by the plaintiff. He was of the view that the developments undermined the diversity of the student body in the university, because the disabled were not able to attend the institution for lack of accommodation.

Baltimore neighborhoods, on its part, were of the opinion that the learning experience in the university would receive a boost if more disabled persons could access the institution (Amon: 70). The organization expressed its views through their member, Joni Brown. The opinions of the group are consistent with its background. The organization is non-profit fair housing crusader (Howard: 214). It strives to eliminate unlawful, discriminatory housing procedures. These are especially the procedures that are against the interests of the group members or non members seeking to get accommodation in Maryland (Emerson: 90).

Motions and Counter-Motions

Kuchmas, through his attorneys, filed a five-count complaint in the United States District Court for the District of Maryland (Amon: 80). The filing was executed on December 6th, 2006, approximately one year after he signed the lease for the apartment. The defendants named in the complaint were as follows, in this order:

1. Towson University

2. Collegiate Housing Corporation

3. Capstone Development Corporation

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4. Capstone Properties Corporation

5. Capstone On-Campus Management LLC

6. Krapfcandoit Company

7. Can-Do Construction Company

8. PGAL Architects, Inc.

The five claims were filed under the Fair Housing Act, Americans with Disabilities Act and the Rehabilitation Act (Cushman & Cook: 128).

Soon after the complaints were filed, the defendants, through their attorneys and acting individually, started filing motions to dismiss. PGAL Architects was the first defendant to do this on January 22, 2007 (Cushman & Cook: 120). The first defendant, Towson University, followed suit on March 28, 2007. However, this defendant’s motion to dismiss was a partial one. They wanted to dismiss to counts one and two (Bayer & Cabot: 901). The judge granted the defendants their motions. This was on September 10th, the same year (Arkantir: 325). This led to the amendment of the memorandum opinion. This was in order to correct a small misstatement. The amendment was carried out on September 11, the day preceding the grants to dismiss.

Motivated by this development, five defendants filed a Joint Motion for Partial Summary Judgment (Arkantir: 325). This was in pursuant to Rule 56 of the Federal Rules of Civil Procedure, a loophole that the defendants were keen on exploiting (Arkantir: 324). These

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defendants were Towson University, the Foundation, Capstone Development, Properties and On-Campus Corporations (Howard: 213). Their motion was anchored on the claim that the one of the clauses in the three acts under which they had been accused was time barred. This was the design and construct claim counts I, III, IV and V (Anthes: 555).

Kuchman’s attorneys responded by filing a Motion for Leave to File Amended Complaint (Drucker & Cwiklo: 89). The motion was seeking to add four more plaintiffs to the litigation. The plaintiffs are as mentioned earlier in the paper. They were Rodney Horne, Lauren Kaplowitz, Christopher Bell and Baltimore Neighborhoods, Inc. in that order (Anthes: 543). The judge granted the plaintiff this motion. This grant was executed on May 13th, 2008 (Bayer & Cabot: 901). The five counts of claim were thus brought against the defendants.

Counts of Claims

After the amendment was carried out, the claims were now brought jointly by the plaintiffs against the defendant. The five counts are as follows:

Count I

In this claim, the defendants are accused of violating the Fair Housing Act, 42 U.S.C § 3604(f)(3)(C) (Emerson: 59). They were also accused of violating 24 C.F.R § 100.200, et seq. of the same act (Bayer & Cabot: 874). This they did by their collective failure to design and construct the apartments to the required standards. In other words, the rooms did not contain all the features that are the hallmark of accessible design (Emerson: 60). This claim was made by all the five plaintiffs.

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Count II

This count was brought by Kuchmas individually. He accused the defendants of failing to avail reasonable accommodations “to afford the complainant an equal opportunity to use and enjoy the facilities just like the rest of the students” (Anthes: 549). In other words, the plaintiff was discriminated against on the basis of his disability.

By failing to provide for the above requirements, the defendants had jointly violated the Fair Housing Act, 42 U.S.C. § 3604(f)(3)(B) (Baughman et al: 468).

Count III

This claim was made by two of the plaintiffs. They were Kuchmas himself and Baltimore Neighborhoods Inc. the sole exception defendant in this count is Towson University. All of the others were jointly accused of failing to “design and construct the public accommodations of the facility so that people with disabilities could access and use them” (Drucker & Cwiklo: 88).

Through the above omission, the defendants violated Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12183 (Amon: 72). This was together with 28 C.F.R. § 36.401 of the same act (Amon: 72).

Count IV

Again, this claim was made by two of the five plaintiffs. These were Kuchmas and the Baltimore

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Neighborhoods Inc. the sole defendant in this count was Towson University. The institution was accused of failing to provide for enough accessible accommodation to the students and in the process violating their needs (Amon: 74).

Through this omission, the institution violated Title II of the Americans with Disabilities Act. This is together with the act’s Standard’s for Accessible Design, 28 C.F.R. part 36 (Howard: 220).

Count V

The two plaintiffs, Kuchmas and Baltimore Neighborhoods Inc., move the claim against the defendants. The sole defendant in this count is still the Towson University, just like in count IV. The institution was accused under this claim of failing to provide accessible housing to all of their students.

By failing to do this, the university violated section 504 of the Rehabilitation Act of 1973 (Anthes:

546). This was 29 U.S.C. § 794 section of the act (Bayer & Cabot: 900).

Motions and Counter-Motions (cont’d)

On May 5th, 2008, the defendants responded to these counts of claims by filing a motion. They filed a Consent Motion. This was to Dismiss Design and Construction Claims that brought on board by the four new plaintiffs (Amon: 80). The arguments that they presented here were the same as those of the Joint Motion for Partial Summary Judgment that was filed earlier.

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A hearing to this effect was conducted on May 13th of 2008 (Howard: 217). It was during this hearing that the judge granted the Motion for Leave to File Amended Complaint that had been filed earlier by the plaintiff (Arkantir: 324). At the same hearing, the attorney representing PGAL Architects brought again their Motion to Dismiss. This time it was based on the amended complaint (Dubowe: 226). The motion, which was made orally, was granted.

After several motions were dispensed with or postponed, only one issue remained to be addressed by the court. This was whether the design and construction claims were time barred, as the defendants had jointly claimed.

Kuchmas v. Towson:

Standard of Review

In reaching at his judgment, the judge was guided by several precedents and acts in the American constitution. These are what the writer refers to as standard of review.

Rule 56 of the Federal Rules of Civil Procedure informed this case a great deal. This rule grants that “summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogations and admissions on file plus the affidavits……prove that there lacks genuine issue pertaining to any material fact” (Drucker & Cwiklo: 79). As such, if these conditions are met, the

party that moved the motion is entitled to a judgment. This is as a matter of law (Amon: 77).

A case in point is Anderson v. Liberty Lobby, Inc. (Anthes: 557). In this case, the Supreme Court ruled that only facts that might influence the results of the litigation can be conceptualized as bee material (Howard: 222). Any other facts are considered immaterial and irrelevant to the suit. The Supreme Court, through the same ruling, explained how a dispute over a material can be genuine. This, according to the court, happens when the evidence’s nature poses the

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likelihood of a jury returning a verdict for the party that was not moving the motion (Arkantir:

325).

This construction case, at this stage, was to be determined on the motions that the defendants had moved seeking a summary judgment. As such, other precedent cases, albeit of a different orientation from the construction industry, but still with the same basic elements, were used.

In Anderson v. Liberty Lobby, Inc., the Supreme Court went ahead to explain the role of the judge in considering a motion for summary judgment before him. The role of the judge was limited to determining if enough evidence backing a claimed factual dispute does really exist (Bayer & Cabot: 901). If it does exist, then the matter can be submitted to a jury for trial, and so the motion denied (Bayer & Cabot: 900). This is the reason why the court has to weigh all the facts that are presented before it by the moving party in the light that most favors the party that

The court also explained that a genuine issue of material fact may be present only when the evidence submitted before the court is enough to indicate that there is a factual dispute that has the probability of been resolved to favor the nonmoving party in the litigation (Cushman & Cwiklo: 78) (Rachel-Smith v. FTDATA, Inc.,).

If the court happens to drawn any inferences from the evidence that is in dispute, the Supreme Court opines that this inference must be accorded to the party that was not moving the motion, rather than the moving party (Anthes: 567). This fact is well demonstrated in Matsushita case that was earlier mentioned and

E.E.O.C. v. Navy Federal Credit Union

(Baughman et al: 468).

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KUCHMAS V. TOWSON:

DISCUSSION

The above presentation was just a presentation of the facts that were surrounding the case. In this section, the writer is going to discuss the case and its pertinence to other cases of construction litigation.

Before proceeding to the discussion of this case, it will be important to recap on the status of the case at this stage. The remaining defendants were Towson University, Collegiate Housing Foundation, Capstone Development Corporation, Capstone properties corporation, and capstone on-campus management LLC (Arkantir: 324). The other defendants among the original seven had dropped out of the litigation at one time or the other.

The issue before the court at this time was the motion that was jointly moved by these defendants seeking for partial summary judgment. This requested judgment was about the design and construction claims that were contained in counts I, III, IV and V (Bayer & Cabot: 888). What the court was to decide in this case was whether the claims that were presented here were barred by their respective statutes of limitations (Bayer & Cabot: 889).

Count I: Violation of Fair Housing Act

This act criminalizes discrimination of individuals “in the sale or rental, or to otherwise making unavailable or deny, a dwelling because of a handicap” (Baughman et al: 470). This criminalization is found in section 42 U.S.C. § 3604(f)(1). In this count, the first defendant, Towson University, had been granted motion to dismiss. This means that they were not

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defendants in this count.

According to Anthes (568), this act defines discrimination as:

Failure to design and construct dwellings and houses in such a way that-

1. People with disabilities can access and utilize the public use and common use parts of the dwellings;

2. all of the doors meant to access all parts of the dwelling are designed in such a manner that persons using wheelchairs can pass through;

3. All the premises of the described dwelling unit should have all of the following features. These features are to be taken as part of an adaptive design:

a. A route that is accessible. This route should pass into and through the dwelling unit;

b. Environmental controls such as switches and sockets should be in accessible places;

c. The walls of the bathroom should be designed in such a way that there is room for installation of grab bars if a disabled person happens to occupy the dwelling;

d. The kitchens and bathrooms within the dwelling unit should be designed such that a person who is on a wheel chair can be able to go round the places.

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This definition provided above is contained in section 42 U.S.C. § 3604(f)(3) (Anthes: 568).

This is the act that guides contractors when they are constructing buildings that will be dwelling units for the public. It is provided in the laws fro the contractors to take into consideration the matters of the disabled. Failure to construct a dwelling unit with these provisions for the disabled will attract a construction litigation case like this one. For example, if the house is constructed without a ramp for a wheelchair, this will be deemed as discrimination against the disabled.

Section 42 U.S.C. § 3613(a)(1)(A) is the one that provides for the limitations applicable to this act (Amon: 79). It provides for a two years statute of limitations. What this means is that, if a person by any chance, is discriminated against in the process of housing matters, he should start civil action against the accused within a period of two years (Emerson: 87). After the expiry of this period, the person cannot take any legal action against the accused.

The above limitation means that if the construction company or any other party involved in the process of housing construction or management discriminates an individual based on the above grounds, they can be taken to court within a period of two years.

However, lawyers and other construction litigation experts have poked holes into this act by saying that it remains ambiguous and unclear on some issues. For example, there is no clarity pertaining to the time that the statute of limitation is supposed to commence taking effect (Dubowe: 227). In other words, what indicates that a discriminatory housing practice has occurred or ended?

This ambiguity was addressed by the Supreme Court in Havens Realty Corporation v. Coleman. The court was of the opinion that if the accused, under this act, complains about not just one

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violation of the act, but a continuous one, the complaint is timely when “it is filed with (the statute of limitations period after) the last asserted occurrence of that discrimination” (Drucker & Cwiklo: 78).

To this end, the Maryland court ruled that as far as this claim is concerned, the statute of limitation started to take effects when millennium hall was completed and occupied (Emerson: 88). This was in the year 2000. This ruling, made on September 11, 2007, was directed at the claim that was lodged against defendant PGAL Architects (Emerson: 88). In making this ruling, the judge was informed by Moseke v. Miller & Smith, Inc. (Cushman & Cook: 127). This case was ruled before the U.S district court for the Eastern District of Virginia (Cushman & Cook: 127).

According to the opinion of the Virginia court, “the existence of a building that is not compliant to the fair housing act does not constitute a continued violation of the same act” (Cushman & Cook: 127). What this means is that if a complaint is lodged against parties that were involved in the design and construction of the non-compliant building two years after the building was completed, this complaint will be considered to be time-barred. The parties that are referred to here are the developers, architectural consultants and community associations.

The Moseke

case was of the view that “the focus of analysis must remain on defendants’ acts. The acts alluded to here are the designing and construction of buildings that are non-compliant. This is as opposed to the analysis focusing on the continuing effects of the actions or omissions of these parties. The continuing effects that the court was of the view that they should not be considered included the inaccessibility of the facilities to the disabled persons (Howard: 222).

The Maryland court also consulted its earlier ruling in Baltimore Neighborhoods, Inc. v. Rommel

Builders. The ruling of this case was that the limitations period does not start to run until “the happening of the last asserted occurrence of discrimination” (Bayer & Cabot: 876). This is provided that the accused were the owners and the managers of the property rather than the architects of the same construction.

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In this light, the defendants are of the view that the statute of limitation began operating on any of the design and construction claims lodged against them when millennium hall was completed and first occupied in the year 2000 (Arkantir: 325). They argue that there is no difference between them and PGAL Architects, which the court ruled in favor of on September 11th 2007. They are of the view that the court should not differentiate legally between the architects or builders of the non-compliant facility and the owners and managers of the same. To do this, they argue, will place the blame of the non-compliance status on the shoulders of those parties that had little control over the design and building of the hall. According to them, those people who had little to do with the design were the owners and managers of the hall, and so the blame should be placed on the shoulders of the likes of PGAL Architects.

On their part, Kuchmas and his entourage were of the view that the provision of the fair housing act that was addressing this issue was ambiguous. The said provision is 42 U.S.C. § 3604 (Baughman et al: 470). Of particular concern to them is the fact that two different events in time are addressed by this clause. These are the designing and constructing the facility and the subsequent sale or rental of a unit to an individual (Baughman et al: 470). They say that 3604(f)(3)(C) can be interpreted variously. It can begin in several ways:

1. completion of the construction of the facility;

2. the event when a person encounters and is injured, either physically or mentally, by the facility that is non-compliant;

3. When a potential defendant either loses control of the aforementioned accessibility, or adapts the features of the dwelling unit such that it is now complaint with the law.

Kuchmas and his fellow plaintiffs were of the view that number three above is consistent to the history and spirit of this act. This interpretation also is consistent with the ruling that the court

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made when it dismissed the claim against PGAL Architects, one of the original defendants. The interpretation will also establish an ongoing duty as far as the parties involved in controlling the building process are concerned. The said parties will find it upon them to alter the building and make it compliant with this act while at the same time they limit the liability of the parties whose engagement with the control over the accessibility feature of the house comes to an end with the completion of the building (Arkantir: 325).

A look at how Kuchmas and the other plaintiffs interpreted this act will reveal that they were consistent with the ruling that was made in the aforementioned Moseke

case. This is the case that informed the ruling of the court on September 11

th

, 2007. There is view supportive of the fact that a distinction should be drawn between the current defendants and PGAL Architects (Anthes: 570). PGAL Architects did not take any action after their design of the facility under contention in this case. The design was carried on between the years 1999-2000. However, the current crop of defendants in this count are continuing to involve themselves with the leasing and subletting of units that they know very well are non-compliant to the act.

Regardless of the fact that the initial non-compliance status was brought about by negligence or oversight on the part of the architects, they stopped getting involved in the building way back in 2000. But the other defendants, the plaintiffs argued, continued to gain from this oversight or negligence by their continued renting of the inaccessible units of millennium hall (Amon: 78).

The third interpretation that the plaintiff provided was also in accordance with the opinion that was held by the same court when ruling earlier in Baltimore Neighborhoods Inc. this ruling was of the opinion that the sale of the last unit was the last asserted occurrence of discrimination that triggered the statute of limitations (Drucker & Cwiklo: 88). This marked the time that the owners and mangers of the facility surrendered their control over the units that were contained in the facility. This been the case, the apartments in millennium hall are still controlled by the defendants in this case the plaintiffs asserted. Every new rental of a unit that is non-compliant to the act inevitably leads to a start of the statute of limitations (Howard: 222).

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The court of appeals in this country, by the time of this construction litigation, had not made a ruling concerning the statutes of limitations as far as design and construction claims under fair housing act, Americans with disabilities act and rehabilitation act are concerned (Emerson: 76). But a case in point is Fair Housing Council, Inc. v. Village of Olde St. Andrews, Inc. this ruling was made before the U.S Court of Appeals for the Sixth Circuit (Emerson: 67). This court was of the view that when the complainant accuses the owner of a multi-family housing development committed an omission in designing and constructing the development so that it can be accessed by the disabled, the limitations period will rely on the particular circumstances surrounding each individual case (Arkantir: 325). This case was rejected as an appeal by the Supreme Court.

However, a ruling made under similar circumstances by the U.S Court of Appeals for the ninth Circuit contrasted this ruling. The case before this court was Garcia v. Brockway (Bayer & Cabot: 901). The court, in reasoning this case, refused to apply the continuing violation doctrine (Bayer & Cabot: 901). The court reasoned that even though the negative effects of a non-compliant facility may continue to have impact on victims long after the construction is complete, the failure to design and construct according to the laws is a single case of criminal conduct.

This Maryland court held that the defendants (collegiate housing foundation and the three capstone corporations) had an ongoing duty considering the fact that they held control over the facility (Millennium Hall). As such, the statute of limitations as far as the design and construction claim was concerned stated when the plaintiff leased the apartment (Dubowe: 225). Accordingly, the motion for partial summary judgment that had moved collectively by the defendants as far as this claim is concerned was denied.

Counts III and IV: Violation of the American with Disabilities Act

As earlier indicated, the only exception defendant in count III was Towson University. The claim was brought against all of the remaining defendants to the effect that they have violated Title III

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of this act (Anthes: 570). However, Towson University was the sole defendant in count IV. This count claims that the defendant violated title II of the act.

Title III of this act provides that “no person shall be discriminated against on the basis of their disability. This is as far as full enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation. This denial is by any person who might be owning, leasing or operating a place of public accommodation” (42 U.S.C. § 12182(a) (Emerson: 88).

Title II of the same act states that “no qualified person who is disabled shall, arising from his disability, be excluded from participation in or be denied to benefit from services, programs or activities of a public entity…..or be subjected to discrimination by any such entity” (§ 12132)

(Emerson: 89). There are specific design provisions that should be met by the contractors or any such party involved in the construction of any public place. A housing unit such as millennium hall can be considered to be a public place, and as such, is under the jurisdiction of this act.

The concerned defendants have moved motions for summary judgment as far as the design and construction claims in counts III and IV are concerned. The arguments for the motions are the same as those for the first count that they tried to strike down. The plaintiffs, on their part, claimed that just like in the first count, their accusations are not time-barred (Amon: 77).

In support for their argument, the defendants referred to case Speciner v. NationsBank, N.A. this is to support their arguments that the Americans with disabilities act’s claims are time-barred. This case was heard before the same court of Maryland. The court reasoned that a claim which originates from a one-time alteration to any construction conducted in the 1920’s was time-barred (Dubowe: 228). But in this case, there were some additional claims anchored on Americans with disabilities act concerning the continued inaccessibility of entrances to the facility (Bayer & Cabot: 876). The court, citing

Deck v. City of Toledo,

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was of the view that for the reason that the plaintiffs’ claims concerning the entrances are anchored on alleged continuing violations, they are not, under any circumstances, barred by statute of limitations (Drucker & Cwiklo: 88). Just like in this case (

Deck v. City of Toledo

), parts of the hall under contention continued to be inaccessible to students who are bound on wheelchairs.

There were few cases that are available which directly address the statute of limitations in American with disabilities act. Majority of the construction litigations that had been arbitrated upon stemmed from fair housing act. This was at the time that this case was been considered in the Maryland court. Regardless though, the court opined that the same reasoning discussed su pra

in the first part will equally apply to these claims (Baughman et al: 470). This is provided that the court will not create a distinction between the remaining defendants and PGAL Architects (Baughman et al: 470).

On September 11th, 2007, the court decided that it was not the intention of congress to hold architects liable under title III of the Americans with disabilities act. As such, the issue of limitations statute was not addressed here. It was the opinion of the court that facility owners and managers possess a continued duty under this act to cater for accessible housing to persons with disabilities (Dubowe: 223). The time limit that has been provided for as far as the above parties are concerned begins with the renting out of the inaccessible unit (Dubowe: 223). This means that it commenced when Kuchmas signed that lease contract. Again, the court denied the defendants their wish to have a partial judgment summary. This was for counts III and IV.

Count V: Violation of the Rehabilitation Act

For identical basis as discussed supra, defendant Towson University has moved motion for summary judgment. This as to the designs and construction claims in this count (Bayer & Cabot: 899).

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Section 504 of this act was what the defendant was accused of violating. The act states that it is criminal for any person who is qualified but with a disability to be excluded from the participation in, be denied the benefits of, or be subjected to discrimination in any program or activity that is a beneficiary of federal financial assistance solely by any reason of his disability (29 U.S.C. § 794(a)) (Anthes: 560). Just like in the American with disabilities act, the statute of limitations has not been addressed hitherto in the light of this act. All parties in this construction litigation were of the view that the court should assume the same reasoning that it applied to the fair housing act.

To bolster its stand in this matter, Towson University referred to Hovsons, Inc. v. Township of

Brick

(Dubowe: 225). In this case which was presented before the U.S Court of Appeals for the Third Circuit, it was decided that this act and the fair housing one are of the same standards when it comes to reasonable accommodations claim (Dubowe: 227). But the design and constructions claims are not addressed here. Regardless, the court pointed out that the history of the fair housing act pointed to the fact that the statute was tailored after the rehabilitation act (Cushman & Cook: 122).

In this light, the court found that the same reasoning that was applied to the others can be applied here too. But there should be no distinction sought between the defendants. This is because this count was against only one of the defendants, Towson university (Dubowe: 226). The judge ruled that a public university, such as Towson, has a continued responsibility under this act. This responsibility was for the provision of accessible housing facilities to people who are disabled (Dubowe: 226). The court further argued that the statute of limitations began to run as soon as the inaccessible unit was leased or rented out, as opposed to when the hall was completed to be built.

In this light, the motion of the defendants for partial summary judgment was denied by the court concerning count number five.

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The opinion of the court was signed by Judge Richard d. Bennett of the United States district court. It was signed on May 15th, 2008. In this opinion, the court denied the defendants’ joint motion for partial summary judgment (Baughman et al: 469). Additionally, the court denied the defendants’ consent motion to dismiss design and construction claims as far as the additional defendants were concerned (Emerson: 89).

Conclusion

Construction litigations use a lot of money and other resources as far as both parties are concerned. That is the reason why majority of such cases are solved using alternative dispute resolution mechanisms as opposed to going for the full fledged court trial. However, there are cases where the parties are at logger heads and they fail to agree on out of the court settlement terms.

This paper looked at the case Kuchmas v. Towson University. The writer followed the case until the point where the judge ruled on the motions for summary judgment that were moved by the defendants in this case. The motions were anchored on the statute of limitations that states that after the elapse of a certain period after the commission or omission of an act, legal action cannot be taken against the same. The court defined the relevant provisions and found that the claims of the plaintiff were not time barred.

References

. Retrieved from http://docs.google.com/gview?a=v&q=cache :Qw1mJN13_hwJ:www.mdd. uscourts.gov/Opinions/Opinions/KuchmasMemoOp.pdf+kuchmas+v.+towson%2Bmemorandum &hl=en&gl=ke&sig=AFQjCNHWfDBRKmpVa2OkPZmrR1xMhSaGVA; on 11

Anthes, Y. X. “Legal Opinions in Kuchmas v. Towson University.” Journal of Legal Litigators, 8(2 ), 2008. 543-570.

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Arkantir, N. O. Litigation in the Construction Industry: Case Studies. New York: McGraw-Hill, 2008. 322-325.

Baughman, F. O., Esquire, I. V. & Richter, D. V. Cutting Costs in Litigations in Construction

Industry                                                                                                                 . Washington: Cengen Books, 2009.

468-475.

Bayer, V. M. & Cabot, Q. Z. Construction Litigation: A Case Analysis of Kuchmas v. Towson

University.                                                                                                                                                                         Lubbock:

Wadsworth, 2009. 872-901.

Cushman, G. V. & Cook, K. M. Excelling in the Court Room: Representing the Owner. New

Jersey: Prentice-Hall, 2008. 119-128.

Drucker, T. I. & Cwiklo, A. Q. construction Litigation: Representing the Owner. London: Aspen Books, 77-89.

Dubowe, V. P. “The Rising Costs of Construction Litigation.” American Bar Association, 34(2), 2008. 222-229.

Emerson, W. A. Strategies and Techniques in Civil Litigation. New  York: McGraw-Hill, 2007.

57-90.

Howard, A. P. Legal Liabilities in Construction. 3rd ed. New  York: Wiley & Sons, 2009.

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