Court: Architecture firm responsible in hospital Legionnaire’s case

The Ohio Second Court of Appeals has ruled an architecture firm should be held financially responsible for a deadly Legionnaire’s outbreak at Miami Valley Hospital in 2011.

The court last week upheld a decision by the Montgomery County Common Pleas Court, finding architecture firm NBBJ L.L.C. breached its contract with the hospital and its parent company, Premiere Health Partners, in a summary judgment ruling.

Miami Valley Hospital hired NBBJ in May 2007 to lead the construction of a new 12-story Heart Patient Tower at the Dayton campus. The contract stipulated that NBBJ was responsible to oversee all construction and to guard the hospital from any defect and deficiencies. Part of the contract required the architectural firm to obtain insurance and add the hospital as an additional insured party for commercial general liability claims.

In 2011, Legionnaire’s disease broke out in the tower and the cause was traced to the plumbing system in the new tower.

Multiple lawsuits were filed against MVH. One patient’s death was attributed to the outbreak, according to the Ohio Department of Health, while 10 other patients contracted Legionnaire’s disease.

MVH and its insurance company, Zurich American Insurance Company, demanded NBBJ provide a defense to the litigation according to the terms of the contract.

NBBJ replied that it did obtain a general liability insurance policy from Chubb & Son, and named the hospital as insured. According to a release announcing the court decision, “The policy contained a clause excluding coverage for bodily injury caused by a biological agent or bacteria. NBBJ argued that since Legionella is bacteria, it was not obligated to cover the damages from the outbreak. Therefore, the negligence of the construction companies caused the outbreak and it is those companies that are responsible for covering MVH’s costs.”

Both parties went to Montgomery County Common Pleas Court in March 2014 and filed for summary judgment, which asks the judge to consider all the facts and rule on the merits of the case without a full trial.

In her ruling, Judge Mary C. Donovan wrote, that NBBJ was in breach of contract for obtaining a policy that excluded “biological agents” which are in the scope of liability the firm assumed when contracting with the hospital.

“We further conclude that NBBJ is in breach of contract for procuring a policy with the “Biological Agents” exclusion,” the court ruled.

Judges Mike Fain and Jeffrey M. Welbaum concurred in the decision.