Defendants in a $13 million lawsuit filed after the partial collapse of a green roof in February 2011 at St. Charles-based Aquascape argue they are not liable because the company signed rider to a contract that waives their right to seek damages.
Aquascape Designs, a backyard pond company, sued for damages earlier this year, arguing Artisan Design Build and other subcontractors were negligent in their installation and design of a green roof at the company's headquarters. Part of the roof collapsed on Feb. 13, 2011. No one was injured during the collapse, which happened on a Sunday, but the company incurred significant costs to repair the roof and move employees to a temporary location while work was done, according to the lawsuit.
Attorneys from several firms filed motions this week to dismiss part or all of the lawsuit, citing a rider that the parties signed.
Suanne Hirschhaut, attorney for Dewberry Architects, argued that Aquascape waived rights against her client and other subcontractors in the rider.
"The owner voluntarily insured the entire building with property coverage at the time of the partial roof collapse," she wrote in court papers. "It made a claim on that policy. It intended that policy to indemnify it for its losses. The property carrier did just that. It's obvious from the readily understood contract language that the owner's property insurance was intended to be its only source of recovery in the event of an insured loss."
John Groark, an attorney representing Aquascape Designs and Charter Oak Fire Insurance Company. disagreed.
"Our position is those provisions apply during construction, not five years afterward," Groark said.
Groak has until Oct. 15 to file a response and the defendants have until Nov. 15.
Kane County Judge James Murphy could rule on the matter on Nov. 21.