WestCon Tribune

In 1997 the owners of a million dollar house in the hills of Lafayette began noting that the center position of their tri-level home built in 1989-91 was separating away from the remainder of the house. Enter Steve Shambaugh (Brilliant Buildings) to investigate. Steve soon realized that the problem was much larger than cracking interior sheetrock. Enter Gary Gray. After much investigation of the crawlspaces (no less than three separate entrances with numerous cells that were only accessible by a first class spelunker) Gary determined that the problems with the house were due to earth movement against various foundation elements that were either not designed properly and/or not constructed according to the plans (the as-built condition did not match the available plans; piers were missing; extra piers added for no apparent reason; grade beams poured on the ground; grade beams not connected to make a continuous load path, etc.). Enter Geotech Dick Tait and attorney Geoff Wood. Dick (Harlan Tait Associates) was called in to determine whether the moving earth was a surface phenomena or deep seated and whether or not the cause of the movement was due to water intrusion. Geoff was called in when it was determined that the construction did not match the plans and that the anticipated cost of repair was increasing exponentially each month.

A suit was eventually filed against the owner builder. The owner builder cross complained against the architect, soils engineer, structural engineer, as well as the “general contractor” (there was an unresolved dispute whether the owner builder was the actual general contractor using his own B class license.)

The parties attempted to enlist the cooperation of the court for time to complete the necessary investigation. The judge obstinately declined all requests to modify the case calendar.

Early on it was realized that each party could save considerable time, effort and money as well as avoid duplicate data if they agreed to share the costs obtained. Since the court refused any relief from the calender, the parties agreed to the services of a mediator/special master for the primary purpose of directing the parties toward resolution without trial and to intercede where necessary with the court that did not seem to have any interest in facilitating resolution of the case.

Even though numerous obstacles loomed in mediation including lack of insurance, bankruptcy, death and avoidance of legal service, the parties in this case were able to reach an innovative settlement by the second mediation session.

This presentation will hopefully provide useful insights on how cooperation and innovation won the day,saved everyone money and resolved an otherwise impossible case without trial.