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Construction co. found negligent in O’Donnell Park facade failure

By: Beth Kevit, [email protected]//November 21, 2013//

Construction co. found negligent in O’Donnell Park facade failure

By: Beth Kevit, [email protected]//November 21, 2013//

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Dawn Kellner, mother of Jared Kellner, and attorney Allan Foeckler address the media after a jury found Random Lake-based Advance Cast Stone Co., Madison-based J.H. Findorff & Son Inc. and Milwaukee County negligent and liable in conditions causing Jared’s death. (Staff photo by Beth Kevit)
Dawn Kellner, mother of Jared Kellner, and attorney Allan Foeckler address the media after a jury found Random Lake-based Advance Cast Stone Co., Madison-based J.H. Findorff & Son Inc. and Milwaukee County negligent and liable in conditions causing Jared’s death. (Staff photo by Beth Kevit)

A jury Thursday found Advance Cast Stone Co. negligent in the death of one person and injuries to others in the 2010 partial façade collapse of the O’Donnell Park parking garage in Milwaukee.

The jury found the Random Lake-based company liable for $15 million in punitive damages and $22 million in compensatory damages.

However, more litigation is expected. Advance Cast Stone’s insurer plans to argue the verdict means the company’s actions fell outside the scope of the insurance policy.

Jared Kellner, 15, of Greenfield, died June 24, 2010, while walking to Henry Maier Festival Park to attend Summerfest with Steven, Amy and Eric Wosinski. A 13½-ton concrete façade panel fell from the Milwaukee County-owned parking garage as Kellner and the Wosinskis were exiting it, killing Kellner and injuring Eric and Amy Wosinski.

The jury decided Advance Cast Stone, which manufactured and installed the panels on O’Donnell Park, was 88 percent at fault for the collapse. Milwaukee County was found to be 2 percent at fault, and general contractor Madison-based J.H. Findorff & Son Inc. was 10 percent at fault, making each partially liable for the total of $18,228,870.75 awarded to the Wosinski and Kellner families in compensatory damages.

Advance Cast Stone also is liable for $6 million in compensatory damages to Milwaukee County.

But the matter will be taken up again Monday.

Before the trial began in October, Milwaukee County Circuit Judge Christopher Foley separated and put on hold the question of whether Advance Cast Stone’s insurer, Liberty Surplus Insurance Corp. and Liberty Insurance Underwriters Inc., could be liable for any damages found against the company.

Michael Vescio, an attorney with Chicago-based SmithAmundsen LLC who represents the insurance agency, said during a hearing Thursday that Liberty plans to argue those damages fall outside the scope of the insurance policy.

Foley said he separated the question before the trial because not doing so would have been prejudicial to Advance Cast Stone because the insurance agency could have argued the company’s actions were intentional before a jury had a chance to determine intent existed.

Vescio and other attorneys for Liberty were barred from participating in the monthlong wrongful death and personal injury trial.

Foley said he wants to schedule the insurance coverage trial for January so the entire matter can be resolved. A scheduling conference was set for Monday.

Attorneys for the Wosinskis and for Jared Kellner’s estate and mother argued during the trial that Advance Cast Stone deviated from the approved technique for hanging concrete panels on the parapet walls when the structure was built in the early 1990s.

That change, the attorneys claimed, caused the panel to fall and made Advance Cast Stone liable for compensatory and punitive damages.


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Findorff settled with the families in July.

Advance Cast Stone’s attorney, Matthew McClean with Davis & Kuelthau SC, said during the trial that the change in technique was approved but that the relevant paperwork had been lost. The panel fell, McClean argued, because it was hit by an unknown vehicle at an unknown time and because connections were weakened by time and the elements.

“The panel didn’t fall off for 19 years,” McClean said during his closing arguments Tuesday, “so something about what we did worked.”

Advance Cast Stone also claimed Milwaukee County failed to maintain the building. The county’s attorney, Ross Anderson with Whyte Hirschboeck Dudek SC, said during the trial that the original connections designed for the project would not have required maintenance and therefore the county had no reason to believe any was necessary.

The panels were designed to be connected with a coiled rod inserted into a metal sleeve and secured with grout, according to a report commissioned by Milwaukee County after the panel fell.

Skokie, Ill.-based CTLGroup conducted the study, which was finished in September 2010, and found that the panels were held in place by pins driven into holes that had been drilled into the concrete, a process called the drill-and-pound method during the trial. The lengths of the pins ranged from 7½ inches to 17¾ inches, according to the report, and were driven into the parapet walls anywhere from three-quarters of an inch to 10 inches deep.

Most pins, according to the report, were driven between 2 and 4 inches into the parapet walls. The two pins that held the panel that killed Kellner had been driven 1 3/8 inches and 3 inches deep.

During his closing arguments Tuesday, Anderson said the lack of uniformity among the pins indicates Advance Cast Stone did not have approval for the drill-and-pound method.

“If there was a fix,” he said Tuesday, “why was there such a huge variation?”

Anderson said the county’s 2 percent liability will be covered by insurance.

McClean said his client might appeal some portions of the verdict and some legal issues remain, such as whether Advance Cast Stone’s insurance can be forced to pay the damages.

According to the report, as much as 34 percent of the panels on O’Donnell Park’s façade could have been in danger of falling in June 2010.

After the verdict, Dawn Kellner, Jared’s mother, thanked the community for its support.

“Looking ahead,” she said, “it’s about public safety and making sure that we keep everybody safe.”

— Follow Beth on Twitter

 

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