Senior Associate Dustan Lorimer, Esq., obtained a dismissal in the matter styled Michael Kirk and Jordana Kirk, Individually and as “next friends” on behalf of Dominic Kirk and Payton Kirk v. Dana Construction, Inc., et. al. The lawsuit was filed on May 5, 2020, with allegations of construction defects that led to water intrusion, consequential mold growth, and ultimately Plaintiffs’ resulting personal injury claims arising from mold exposure. In support of the construction defect claims, Plaintiffs attached two expert reports to the Complaint concluding that the alleged water intrusion was primarily caused by excessive cracks in the exterior concrete block walls. However, the Insured’s, Dana Construction, Inc., work included certain flatwork on the sidewalk and driveway, as well as final framing punch-out work. Therefore, the causal connection between the Insured’s work and claimed damages was questionable, at best. 

Despite several requests for dismissal, Plaintiffs’ Counsel declined to dismiss any parties because at the time, only limited written discovery was completed and initial documents were exchanged. No depositions were conducted and no expert opinions were finalized. Even so, a Motion for Sanctions coupled with a Motion for Summary Judgment was prepared to extract the Insured. To that end, an affidavit was completed by the Insured attesting to the fact that its work did not result in the damages complained of. Additionally, the Insured prepared and filed an affidavit indicating that the performance of its work did not cause or contribute to Plaintiffs’ alleged injuries. Under clearly established precedent, the burden then shifted to Plaintiffs to come forth with counter-evidence sufficient to reveal a genuine issue of material fact. Failing to do this and persuaded by our argument, Plaintiffs’ Counsel dismissed the claims against the Insured with prejudice early in this complex construction defect case, with minimal discovery completed. Read More.