First District Appellate Court Reverses $1.5M Construction Claim Ruling in Favor of Foran Glennon Client

Foran Glennon shareholders Thomas Orlando and Douglas Palandech and associate Joel Daniel successfully secured a reversal in Illinois Appellate Court on behalf of an architect client against a condominium association’s suit to recover more than $1.5 million in prospective remediation costs.

The architecture company designed and self-certified plans for the construction of a 3-unit residential condominium in Chicago through the City of Chicago Department of Buildings’ Self-Certification Permit Program (SCPP). After designing and certification, the architect had no further involvement with the building’s construction.

Five years after construction was completed, a windstorm revealed the building’s lateral structural support system could not withstand the wind loads outlined and required by the Chicago Building Code.

The condominium association asserted claims against the developer, general contractor and architect, including theories of fraudulent and negligent misrepresentation against the architect.

The circuit court dismissed all claims against the architect aside from a single count premised on a private right of action allegedly implied in the SCPP. The architect contended that the claim should have been dismissed at the pleading stage given the SCPP program did not imply a private right of action against a self-certifying design professional.

After a motion to dismiss the alleged private right of action was denied, Foran Glennon attorneys filed a motion to certify the following question for immediate appeal:

“Whether a professional architect who submits plans and specifications for the improvement of real property to the City of Chicago through the City’s Self-Certification Permit Program can be subject to liability under an implied private right of action for failure to properly discharge the program’s requirements.”

The plaintiff contested the motion. The circuit court refused to certify the question and, after a bench trial, awarded the association over $1.5 million in damages under this theory of an implied cause of action alone.

On appeal, Thomas argued the alleged private right of action:

  • Failed to meet any of the four prerequisites supporting a private right action
  • Would eliminate the established common law by circumventing the Moorman doctrine’s bar limiting recovery to contract claims (e.g., costs for remediating design defects) against design professionals

The First District Appellate Court agreed and reversed the circuit court’s judgment. The Illinois Supreme Court denied the association’s Petition for Leave to Appeal, rendering the appellate court’s decision final.

This decision establishes precedent for design professionals practicing in Chicago, confirming that they should not be subject to unforeseen liability risks simply because of the permitting mechanism employed.

Thomas concentrates his practice in insurance and appellate law. His appellate practice is diverse and covers both insurance and non-insurance disputes. Tom has appeared in and argued appeals in numerous state and federal courts nationwide, and he has represented both appellants and appellees.

Douglas concentrates his litigation practice on construction, design professional and legal liability, products liability and first-party property cases. He has tried numerous cases for design professionals, architects, engineers and surveyors. The contours of Illinois construction law have in large measure been shaped by the appellate decisions from the cases Doug has handled at the trial level.

Joel is a skilled commercial litigation attorney that focuses his practice on civil defense litigation and first-party insurance disputes, including bad faith claims, builder’s risk claims, and construction and design defect claims. Joel also has significant experience in alternative dispute resolution and appellate practice.

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