Ohio firm says it's wrongly on hook for Nitro theater problems

CHARLESTON – An Ohio corporation says it wrongly had to pay more than $150,000 in damages to Nitro's Great Escapes Theaters because of differential settling.

In a federal complaint filed Feb. 27, Al. Neyer Inc. claims Ackenheil Engineers and Geologists, a Putnam County engineering firm, is responsible for the theater's problems and should be required to pay Neyer back the money it lost in the lawsuit.

Ackenheil denies the allegations and argues Neyer's complaint should be barred.

The problems began after Aliance Entertainment, which is doing business as Nitro's Great Escapes Theaters, sought more than $2 million in a lawsuit it filed against Neyer in June 2007 after its building began to exhibit signs of differential settlement in January 2006.

"Aliance and its retained experts claimed that a defective condition in the gravel layer and geo fabric installed by Neyer during construction of the building involving the collection and flow of water was a primary cause of the settling and damage," the suit states.

In a January 2009 settlement, Neyer paid more than $150,000 to Aliance.

But the corporation claims it installed the gravel layer and geo fabric at the recommendation of Ackenheil and relied on a Dec. 10, 2004, report in which Ackenheil recommended a spread footer foundation system.

"Aliance furnished a copy of Defendant's geotechnical report and recommendations to Neyer, and Aliance directed Neyer to rely upon Defendant's report in designing the movie theater, as required in their contract," the suit states.

In addition, Ackenheil was aware that the building site was a valley fill site that contained about 365,000 cubic yards of fill material placed at depths of up to 80 feet between 1999 and 2000. During the placement of the fill, at least one underground springs was discovered within the fill area, according to court records.

These were the primary reasons for the settling and damage to the building, according to experts Neyer hired.

However, Ackenheil never disclosed the information to Neyer, and, despite its knowledge, the engineering firm performed only six test borings to a depth of 21.5 feet, the complaint says.

"As a result, Defendant failed to identify and report significant characteristics of the subsurface conditions," the suit states.

Ackenheil denies it knew of the underground spring at the time it performed its investigation, but admits it did know that the site was a valley fill site.

Before it settled the January lawsuit, Neyer notified Ackenheil of Aliance's claims and demanded Ackenheil protect it from the claims. However, Ackenheil refused to do so.

"Neyer is entitled to be indemnified by Defendant for the losses and damages that it incurred related to Aliance's claims and the improper and inadequate services performed by Defendant," the suit states.

In the two-count suit, Neyer is seeking damages of at least $150,000, plus interest, costs, attorney's fees and other relief to which it may be entitled.

Ackenheil is asking the court to dismiss the complaint, plus a judgment for costs in defending the suit.

Gene W. Bailey of Daniels Law Firm in Charleston will be representing Neyer and Steven C. Coffaro of Keating, Muething and Klekamp in Cincinnati will serve of counsel.

Jeffrey G. Wilhelm of Pepper Hamilton in Pittsburgh and David F. Nelson of Charleston will be representing Ackenheil.

Judge John T. Copenhaver Jr. will be presiding over the matter.

U.S. District Court case number: 2:09-0182