SALEM, Mass. – When did the city know of faulty construction at the Guilmette School that led to mold problems and forced the shuttering of the school in 2010?
That's what a judge hearing Lawrence's $6.5 million claim against the contractor who built the Guilmette School wanted to know from the city's lawyers Monday in Superior Court.
A mold infestation closed the building for most of the 2010-2011 school year and forced $6.5 millions in repairs.
The case hinges on a single word in a settlement that ended another suit the city filed in 2003 against the same contractor and its insurance company, which involved a similar but smaller mold infestation. The settlement barred the city from suing Peabody Construction and Travelers Insurance again on issues involving the construction of the elementary and middle schools – unless it later found new defects in the construction that were “latent” at the time of the settlement, meaning the city could not reasonably have known about them.
The city's lawyers say inspectors did not probe deep enough into the building and behind its walls at the time of the first mold infestation in 2003 – which was caused when a sprinkler head burst and drenched sections of the building – to find the construction defects that would lead to the second mold infestation seven years later. The second outbreak occurred because insulation around HVAC piping and equipment was poorly installed, allowing moisture to condense on the pipes and drip undetected behind the walls for years.
Lawyers for Peabody and Travelers say Lawrence had an architect and a construction manager who were at the construction site regularly inspecting the work when the school was built at a cost of $23.3 million, so the city knew – or should have known – that the insulation was not being properly installed. That would mean that the construction defect was more obvious than latent, which under the terms of the 2005 settlement would bar Lawrence from pursuing another lawsuit after the second mold infestation was discovered in 2010.
The city gutted much of Guilmette's interior to wipe out the mold infestation and moved hundreds of first- through eighth-graders to other buildings for most of the 2010-11 school year, which in all cost the city $6.5 million.
After the city sued Peabody and Travelers to recover the cost, Peabody in turn sued more than a dozen of its subcontractors on the job, including plumbers, electricians, roofers, electricians, insulators and window companies. The list has been whittled by settlement agreements by Peabody and the subcontractors and by judgments issued by Superior Court Judge Robert Cornetta in the first few years of the case.
The list of defendants grew again in 2015 when Cornetta allowed the city to add another contractor, Daikin Applied Americas, which the city accused of installing installed at least some of the defective insulation while working as a sub-contractor for Peabody Construction. Daikin responded by suing three of its own sub-contractors who worked on the job.
On Dec. 31, 2015, Judge Cornetta allowed Lawrence to add Daikin as a defendant in a ruling that was only a few sentences long and did not explain the logic behind it. The next day, he retired.
The case was reassigned to Judge Timothy Feeley.
At the hearing on Monday, Feeley said he would reconsider Cornetta's decision to allow the city to bring Daikin into the case. He directed lawyers for the city to provide Daikin with photos of the insulation taken when the second mold outbreak was discovered in time for a Feb. 23 hearing on the issue, which is expected to focus on the critical question of when the city learned that the insulation around the HVAC pipes and equipment was improperly installed.
Feeley already has reconsidered another of Cornetta's rulings, which Cornetta also issued the day before his retirement and without explaining his logic. In it, Cornetta rejected a request for a summary judgment against Lawrence from Travelers, Peabody and the subcontractors, which would have ended the case. Summary judgments allow judges to issue rulings without a full trial when the issues appear lopsidedly in favor of one party or another and the facts of the case are not disputed by either side.
In agreeing to reconsider the request from Travelers and the contractors for summary judgment that Cornetta denied, Feeley expressed open exasperation with Cornetta's ruling.
“An appropriately respectful complaint is also raised (by the defendants) about the appearance that their motion (for summary judgment) might not have been fully and fairly considered by a retiring judge who used a margin endorsement to deny massive summary judgment motions the day before retiring,” Feeley wrote in July, referring to Cornetta's terse, handwritten ruling on the issue in the margins of one of the motions. “Without in any way impugning Judge Cornetta's judicial integrity or in any way endorsing any suggestion that summary judgment motions were not fully and fairly considered, this court agrees there is an appearance that reflects badly on the court and the appearance that the fair administration of justice may not have been served.”
After a new hearing, Feeley affirmed Cornetta's decision denying the request for summary judgment.
Feeley's decision on Monday to reconsider a second decision by Cornetta to allow Lawrence to add Daikin as a defendant will further delay a case that already has dragged on for more than four years. Until that issue is resolved, Feeley put off further discovery, which is the process that allows lawyers for each side to examine potential evidence that the other sides possesses.
“We still don't know who the parties in this case are,” Feeley said, explaining his decision to delay discovery.
The decision is doubly frustrating for Lawrence, which in July filed a motion asking Feeley for “a speedy trial.”
“The city of Lawrence is a financially strapped community that has faced many socio-economic challenges, including a school system that is currently in receivership due to poor student performance,” the city said in its motion. “The financial impacts of the amounts paid for remediation and reconstruction that occurred as a result of the mold infestation at the school have caused Lawrence to redirect critical education funds away from educational purposes and toward these construction costs. This redirection of funds, as well as the costs associated with the litigation process, further exacerbates the problems facing the students and the city.”