A federal appeals court has sided with a Massachusetts hospital in its lawsuit against a contractor that installed shoddy flooring during a multi-million dollar renovation.
The Berkshire Medical Center properly invoked its warranty agreement with general contractor U.W. Marx, which it had hired for the construction project, the court ruled on July 7, upholding a trial jury's earlier verdict.
The Pittsfield, Mass., facility began remodeling its 70,000 square feet of existing space and building 40,000 square feet of new space, including 8 ORs, in 2002, according to court records.
Marx was responsible, in part, for installing the flooring throughout the project: vinyl tiles on concrete slabs. The Troy, N.Y., construction company laid the concrete slabs, but subcontracted the tile work to an outside flooring company. The flooring company warned Marx that waves and other imperfections it found in the concrete would render the tiles uneven and loose. Marx opted to perform spot repairs after the job was completed.
In 2006, after unsuccessful attempts to get Marx to remedy the floor's defects and facing concerns that they would create problems during upcoming accreditation surveys, Berkshire had the floor replaced without Marx's involvement at a cost of $398,070.
The center also sued Marx in 2008 for the $331,835 it spent on the defective flooring that was replaced, citing a warranty agreement that promised Marx would repair, at no cost to Berkshire, any defects due to faulty workmanship or materials that appeared within one year of the completion of the work.
At trial, a jury ruled that Marx was given proper notice of the problems, but never resolved the issues. While Marx appealed that the center hadn't properly exercised its warranty rights — arguing, among other points, that it hadn't met the agreement's time limit, notified the contractor in writing, given the contractor sufficient opportunity to resolve the problems itself or proved that they were caused by faulty workmanship or materials — the appeals court disagreed.
"I was surprised that the case went to trial at all," says John Rogers, vice president and general counsel at Berkshire. "I thought it would have been settled well before trial. However, I wasn't surprised that the appeals court affirmed the original decision."
"These floors were simply not acceptable," he says. "You wouldn't want them in your kitchen, much less your operating rooms."
Peter Marx, a principal for the construction company, did not reply to requests for comment.
Christine Olley
