New Jersey State Bar Association Construction Law Section Robertet Flavors, Inc. v. Tri-Form Construction, Inc. The New Jersey Supreme Court Sets Guidelines Addressing Spoliation of Evidence in Construction Defect Cases by Damian Santomauro C onstruction defects that building, Robertet’s employees the building with its expert, the require repair pose signifi- noticed water was leaking through allegedly defective window system cant challenges to proper- the window system. Robertet con- had been replaced and all repairs ty owners that either have tacted Academy Glass, which con- had been made. instituted or intend to institute liti- ducted a visual inspection of the Academy Glass filed a motion gation against those parties respon- interior and exterior of the building seeking to bar Robertet from offer- sible for the defects. In particular, and suggested the windows be re- ing any expert testimony relating to such property owners are often caulked. Re-caulking did not resolve the installation of the window sys- confronted with the tension inher- the problem and, when the leaking tem on the grounds that preclusion ent in wanting to make the neces- became worse, Robertet retained of such evidence was an appropri- sary repairs as soon as possible experts to investigate the leaking. ate remedy for Robertet’s spolia- while simultaneously complying Robertet filed a complaint tion. The trial court granted the with their obligation to preserve against Academy Glass and Tri- motion and subsequent motions by relevant evidence. When owners Form, alleging the windows were Academy Glass and Tri-Form seek- make the repairs without proper defectively constructed and the ing summary judgment as a result consideration of their preservation construction project was not prop- of Robertet’s inability to offer obligations, they can subject them- erly managed. Thereafter, while expert testimony. selves to claims of spoliation by the removing a section of the windows, On appeal, the Appellate Divi- defendants. Robertet’s experts discovered a sig- sion held that because Academy The New Jersey Supreme Court nificant mold problem they claimed Glass had the opportunity to recently addressed these circum- was caused by the leaking, and rec- inspect the windows prior to their stances in Robertet Flavors, Inc. v. ommended to Robertet that it replacement, Robertet’s expert Tri-Form Construction, Inc. 1 and, in remove and replace everything that should have been permitted to doing so set forth a framework for had been contaminated with the offer an opinion based upon obser- courts to utilize in determining the mold. Robertet decided to make the vations the expert made prior to appropriate remedy for spoliation necessary repairs, but never advised the replacement. The Appellate in construction defect cases. the defendants that remedial work Division’s ruling, however, effective- Robertet involved a dispute over was contemplated, even though Tri- ly precluded evidence relating to the construction of a window sys- Form had served discovery requests the mold contamination, which tem in a commercial building demanding notification of any Robertet did not discover until after owned by Robertet Flavors. In planned or intended repairs. Academy Glass had the opportunity connection with the construction Academy Glass learned of the to inspect the windows. Robertet, of its new headquarters, Robertet remediation after it had started, and Academy Glass, and Tri-Form all retained Tri-Form Construction, Inc. requested that Robertet cease appealed to the New Jersey and its president as a construction repairs until Academy Glass had a Supreme Court. manager, and contracted with Acad- chance to evaluate Robertet’s Recognizing that construction emy Glass, Inc. to install a strip-win- claims of defective construction projects “present the courts with dow system in the building. and resulting damage. Robertet, unique challenges” regarding spolia- After construction was complet- however, refused to do so. When tion, the Court noted that parties to ed and it had moved into its new Academy Glass ultimately visited construction projects have compet- 4
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