The Design & Construction Management Professional Reporter: September 2022

Inside This Issue:

Note from the Editor

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As summer is ending, we hope this finds you well and refreshed. We look forward to positive energy in the industry with new spending and ambitious programs underway.

In this edition of the Reporter we discuss a case where the Civilian Board of Contract Appeals awarded equitable adjustment to a GSA contractor for defective specification in an RFI, a Nevada decision holding breach of contract by an architect under state law is not preempted by the ADA,

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Washington State Department of Transportation v. Seattle Tunnel Partners:  Appellate Court Affirms Denial of DSC Claim

David J. Hatem, PC

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In a June 14, 2022 Unpublished Opinion, the Court of Appeals of the State of Washington in Washington State Department of Transportation v. Seattle Tunnel Partners, No. 54425-3-11, 2022 WL 2132780, (Wash. Ct. App. 2022), (“WSDOT-STP”) affirmed a Trial Court judgment denying entitlement of a Design-Builder’s differing site condition (“DSC”) claim.

The WSDOT – STP litigation arose out of the Alaskan Way Viaduct project, in Seattle,

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Available Now! Project-Specific Professional Liability Insurance on Design-Build and Public-Private Partnership Projects in North America White Paper

In January 2022 Donovan Hatem LLP established a Task Force consisting of professional liability insurance underwriters, brokers, engineers and architects, and lawyers knowledgeable and experienced in various aspects of Project-Specific Professional Liability Insurance (“PSPL”) on Design-Build (“DB”) and Public-Private Partnership (“P3”) projects in North America.

The mission of the Task Force was to gather information and knowledgeable input on certain critical issues on DB and P3 projects in North America regarding the impact of (a) procurement and contractual practices,

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Patricia Gary Co-edits and Authors New Book Climate Change and the Built Environment

Patricia Gary has co-edited and authored a groundbreaking new book, Climate Change and the Built Environment.  Published by ACEC and authored entirely by women experts across the design services industry, this book is a resource for design professionals, owners, lawyers, contractors,  and construction industry stakeholders – or anyone seeking to understand the complex problem of climate change and the built environment. 

ACEC –

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Article: Supreme Judicial Court Articulates A New Test For Determining The Enforceability Of Contractual Provisions That Limit Liability For Violations Of G.L. c. 93A, §11.

Patricia B. Gary

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On January 24, 2022, the Supreme Judicial Court issued an important decision, H1 Lincoln, Inc. v. South Washington Street, LLC, & others, which establishes a new test for determining the enforceability of contractual limitation of liability provisions for violations of G.L. c. 93A, §11. Massachusetts General Laws c. 93A is the Massachusetts Consumer Protection Act which not only protects consumers,

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The Design & Construction Management Professional Reporter: Winter 2021/2022

Inside This Issue:

“Should Geotechnical Baseline Reports be the Universal and Exclusive Contractual Basis for Subsurface Conditions Risk Allocation?”
By: David J. Hatem, PC

Massachusetts Appeals Court Holds MEP Contractor’s Use of “Individual Expertise” to Support Hot Water Tank Installation is Protected by the Statute of Repose

Retail Tenants Continue To Seek Relief From Leases Due To Covid Induced Business Interruptions, While Results Remain Favorable For Landlords
By: Stephen F. Willig

To read a PDF version of the Winter 2021/2022 issue,

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David Hatem published in Tunnel Business Magazine

David Hatem was published in the December issue of Tunnel Business Magazine. His article, titled “Should Geotechnical Baseline Reports Be The Universal And Exclusive Contractual Basis For Subsurface Conditions Risk Allocation?,” addresses the potential pros and cons of using Geotechnical Baseline Reports as the standard for subsurface conditions risk in Owner and Contractor in Design-Bid-Build projects.  To read the entire article, click here.

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Should Geotechnical Baseline Reports be the Universal and Exclusive Contractual Basis for Subsurface Conditions Risk Allocation?

David J. Hatem, PC

INTRODUCTION

Geotechnical Baseline Reports (“GBRs”) are a critically important mechanism intended to clearly, objectively, effectively and contractually allocate subsurface conditions risk between Owner and Contractor in Design-Bid-Build (“DBB”) projects. (Sanders & Eagles 2017; Hatem & Corkum 2010; Hatem & Gary 2020).

The GBR is intended to provide a reasonably comprehensive scope of statements that articulate in clear and objective terms selective physical subsurface conditions reasonably anticipated to be encountered in the performance of the work. 

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Article: Supreme Judicial Court Clarifies That “All” Statutes of Limitations Were Tolled By Its COVID-19 Tolling Orders

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In a case of first impression, the Supreme Judicial Court (“SJC”) clarified in Shaw’s Supermarkets, Inc. v. Melendez, that its Third Updated COVID-19 Order, dated June 24, 2020, is a tolling order that applies broadly to all statutes of limitations – and does not just apply to those civil statutes of limitations that were set to expire between March 17, 2020 and June 30,

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Retail Tenants Continue To Seek Relief From Leases Due To Covid Induced Business Interruptions, While Results Remain Favorable For Landlords

To view a PDF copy of the article, click here.

In the New York area, litigation has continued between commercial landlords and tenants of all sizes seeking relief from, or changes to, lease terms due to hardships resulting from COVID-19 business interruption.  While the volume of cases are diminishing, there remain some noteworthy decisions that reflect how landlords and tenants have fared in seeking relief.

In The Gap v. Ponte Gadea, Judge Laura Taylor Swain of the Southern District of New York was presented with a case of a commercial tenant seeking relief on a wide array of theories. 

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Surfside Condominium Collapse: Is There a Path Forward to Mitigate Risk of Catastrophe?

by David J. Hatem, PC
August 2021

On Thursday, June 24, 2021, Champlain Towers South, a 12-story beachfront condominium in the Miami suburb of Surfside, Florida, partially collapsed.  As of July 22, 2021, a total of 98 people are confirmed dead, all of whom have been identified. 

I have been involved in several high profile – and tragic – events like the Surfside condominium collapse. Notably, the Minnesota I-35 Bridge Collapse in 2007,

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MA Appellate Courts Issue Two Important Decisions Impacting Professional Liability Claims

Architects, engineers, and other design professionals should take note of two recent Massachusetts opinions which underscore the need to consider the complexities professionals face when evaluating supposed errors in judgment, and whether those errors even caused harm. The first, Doull v. Foster, SJC 12921 (February 26, 2021), eliminated the confusing “substantial contributing factor” test in favor of adopting the “but for” standard for proximate causation. This  requiring plaintiffs prove their harm would not have occurred “but for” the defendant’s conduct.

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Paul Muniz Authors Chapter in the Design Professional’s Guide to Construction Law

Paul Muniz authored the chapter, titled “Design Professional Legal Responsibilities – Construction and Completion Phases” in the recently published Design Professional’s Guide to Construction Law by the American Bar Association.

The objective of Paul’s chapter is to explore the legal responsibilities of design professionals providing construction administration services to bring a project through to final completion once the ground is broken. This chapter provides guidance on site visits to verify conformance with the Contract Documents,

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Client Alert: Full Staff of New York Courts Due Back May 24, But Some COVID19 Changes In Litigation Are Here To Stay

The difference in how civil litigation was conducted in New York before COVID and now could not be greater.  Overnight, the system where the vast majority of court business was conducted live inside a courthouse was shut down.  After a hiatus, as everyone scrambled to enhance their technical capabilities, court proceedings finally resumed via remote means.  While the pace of pre-trial proceedings and appeals had increased over time, all civil jury trials were initially postponed indefinitely and have resumed only in very limited numbers. 

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Now Available! Public-Private Partnerships and Design-Build: Opportunities and Risks for Consulting Engineers. P3 3rd Edition

Click Here To Purchase!!

As P3 and DB approaches on bridges, roads, transit, water supply and treatment, tunnels, rail, and other public infrastructure projects continue to increase, consulting engineers need access to vital knowledge and reliable expertise to make conscientious and prudent decisions about P3 and DB project opportunities and risks.

The third edition of Public-Private Partnerships and Design-Build: Opportunities and Risks for Consulting Engineers presents new industry information and experience on P3 and DB approaches,

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Retail Tenants Assert Frustration Of Purpose To Avoid Lease Payments Based On Covid-Related Closing

The New York Appellate Division in Manhattan recently issued an important decision for commercial landlords and retail tenants suffering through store closings and diminished business as a result of the COVID-19 pandemic.  In The Gap v. 44-45 Broadway Leasing, the Court affirmed the lower court’s issuance of a “Yellowstone” injunction (issued to maintain the status quo) which permitted continued occupancy of two high profile retail locations while the parties continue to litigate the question of whether the doctrine of “frustration of purpose” applies to terminate or alter leases as a result of state-mandated closure orders due to COVID-19. 

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Client Alert – Court Saves Building From Guillotine

At the Donovan Hatem January 21 Roundtable, we discussed the decision in The Committee for Environmentally Sound Development v. Amsterdam Ave Redevelopment whereby a New York trial court annulled a resolution of the Board of Standards and Appeal, thereby revoking a DOB permit, and directed the removal of many floors of a nearly completed high rise building. At our Roundtable we reported an appeal had been taken from that decision, and the appeal was supported by amicus briefs from the NY Building Congress,

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Commercial Tenants May Be Excused for Non-payment of Rent Due to Covid-19 Related Government Shutdowns

A Massachusetts trial Court recently issued a favorable decision for commercial tenants suffering from the effects of the Covid-19 pandemic.  The Court applied a legal doctrine called “frustration of purpose” to excuse the tenant’s non-payment of rent during the state-mandated shutdowns in the Spring and Summer of 2020.

The case arose from a dispute between a commercial landlord (UMNV) and its tenant, Caffé Nero. The lease was signed in 2017.  Caffé Nero then spent a year and considerable money building out the space for its intended purpose of serving customers with food and beverage service on premises,

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Massachusetts High Court Issues New Ruling on the Statute of Repose in a Multi-phase, Multiple Building Project, Overruling Federal District Court

Jon Cowen authored the article, “Massachusetts High Court Issues New Ruling on the Statute of Repose in a Multi-phase, Multiple Building Project, Overruling Federal District Court” which was published in the ACEC/MA’s Winter Insights Newsletter. The article the Supreme Judicial Court’s ruling on Statue of Repose in a multi-phase project.

Read the full article here.

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The Design & Construction Management Professional Reporter: December 2020

Inside This Issue:
“Rethinking and Recalibrating Design-Build”
By: David J. Hatem, PC
“Texas Court of Appeals Affirms Strict Compliance with Certificate of Merit Statute.”
By: Andrew S. Hassey
To read our December 2020 issue, please click here.

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