Defense attorneys in balcony collapse case argue whether property agent owed damages by co-defendants

Aug. 25--A date for trial has not yet been set in a case related to a Grand Forks apartment balcony that collapsed in 2019, but this week some of the defendants made their case in court about whether the property agent is entitled to damages from its co-defendants.

The five separate lawsuits are the result of a Grand Forks apartment balcony that plummeted four stories in June 2019, bringing five people down with it. Those five people -- Paul W. Anderson, Elijah J. Hylden, Amanda J. Seim, Steven A. Thompson and Benjamin H. Thompson -- are each suing for $50,000 in economic and non-economic damages.

The lawsuit alleges the balcony did not have adequate siding and flashing materials to prevent water infiltration from occurring at the support points. The lawsuit also alleges contractors used untreated and inadequate wood supports, failed to have supporting structures made of materials other than wood and made other errors that led to the balcony's collapse.

The complaint alleges that the negligence of multiple parties led to the collapsed balcony at 3880 Garden View Drive: Edgewood Real Estate Investment Trust, EVI McEnroe Apartments, Investment Management & Marketing Inc., Community Contractors Inc., A & L Siding and Home Improvement Center Inc., Icon Architectural Group, and Dakota Commercial & Development Co. Each party allegedly had a role in designing, constructing or maintaining the balcony.

On March 18, Investment Management & Marketing Inc. (IMM) filed a cross-claim against defendants Edgewood REIT, EVI McEnroe, Community Contractors Inc., A&L Siding and Home Improvement Center and Icon Architectural Group.

The cross-claim alleged that IMM entered into a property management agreement with EVI McEnroe on Nov. 1, 2018, in which IMM was the property agent and EVI McEnroe was the property owner. Through that agreement, IMM argues that it is entitled to indemnity, or compensation for damages, from EVI McEnroe.

IMM also alleged that because EVI McEnroe and Edgewood REIT have not taken responsibility for IMM's costs and defense, it amounts to a breach of contract. It is requesting the amount of damages to be paid to be determined in trial.

The answering defendants responded that they are not responsible for indemnifying IMM, with reasons ranging from arguments that they had no control over the damages to arguments that the IMM cross-claim isn't grounded in law.

In a hearing Monday morning, Aug. 24, attorneys representing A&L Siding and Home Improvement Center and Icon Architectural Group argued that because IMM did not become contractually tied to the property until nearly a decade after its construction, there is no legal reason for the contractor and the architectural group to be liable for any damages. They asked for the cross-filing to be dismissed with prejudice, meaning IMM won't be able to raise the issue again.

Presiding Judge Donald Hager asked whether dismissal was premature, since there hadn't yet been discovery in the case.

"The fact is that (Investors Management and Marketing Inc.) came into being property manager after the fact," said Barton Cahill, who represents A&L Siding and Home Improvement Center. "There doesn't need to be any further discovery on that issue."

Hager is expected to issue his opinion on the matter in the coming weeks.

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