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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Article: Rethinking and Recalibrating Design-Build

by David J. Hatem, PC
December 2020

For a PDF version of the article, click here

In the last 18 months, the signs and signals, if not alarms, that something is seriously veering off the tracks in Design-Build (“DB”) delivery on major public infrastructure projects have become increasingly evident by comments and actions of a number of diverse and important constituencies in the construction, design and insurance industries.  The root causes of many of the negative experiences and trends on those DB projects arise out of certain Owner procurement and contractual practices that are adversely,

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The Design & Construction Management Professional Reporter: July 2020


“Florida Court Rules Architects Can Be Liable To Contractors For Negligence”
By: Michael Robertson

“Massachusetts High Court Rules that Consent to Settle Provisions in Professional Liability Policies are Enforceable”
By: Jon C. Cowen, Esq.

“District Court of Massachusetts Judge Certifies Question Concerning Statute of Repose Applicability to SJC”

“Vigor Works Decision Demonstrates Certain Risks for Designers and Contractors in Design-Build Arrangements”

To read our most recent issue,

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David Hatem published in Tunnel Business Magazine

David Hatem was published in the June issue of Tunnel Business Magazine. His article, titled “Improving Risk Allocation on Design-Build Subsurface Projects,” addresses some root causes that have lead to the increasing concerns surrounding fixed-price contracting and how improving your risk allocation can help the efficiency of Design-Build projects.  To read the entire article, click here.

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Coronavirus (COVID-19) Response and Resources

As the world continues to deal with uncertainties surrounding the Coronavirus pandemic, Donovan Hatem is working collaboratively with one another and our clients to adapt quickly to unprecedented challenges. However, our commitment to our clients and our communities remains the same.
Below is a wide range of content pertaining to COVID-19 that we will be regularly updating. Please see the information below and contact us if you have further questions.

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Jon Cowen highlighted in Mass Lawyers Weekly cover article on case of first impression before Supreme Judicial Court

Mass Lawyers Weekly highlighted the recent Massachusetts Supreme Judicial Court decision holding that the state’s Lis Pendens statute mandates an award of appellate attorneys’ fees to the prevailing party on a special motion to dismiss:
DeCicco makes clear that there is risk to litigants who are of a mind to tie up pieces of real estate in the hopes of negotiating a better deal, said the defendant’s attorney, Jon C. Cowen of Boston.

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Donovan Hatem Client Entitled to Appellate Attorney’s Fees against Frivolous Claim of Title

On May 11, 2020, the Massachusetts Supreme Judicial Court decided a matter of first impression, holding that the state’s Lis Pendens statute mandates an award of appellate attorneys’ fees to the prevailing party on a special motion to dismiss. The Lis Pendens statute, M.G.L. ch. 184, section 15, provides a mechanism for persons with a legitimate claim to title or use of real property to record a notice with the registry of deeds, putting the world on notice of its claim.

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Donovan Hatem files Amicus Brief with Massachusetts Supreme Judicial Court Urging Court to Uphold Statute of Repose

On April 14, 2020, Donovan Hatem, LLP filed an Amicus (friend of the court) brief with the Massachusetts Supreme Judicial Court (SJC) in the matter of D’Allessandro v. Lennar Hingham Holdings, LLC (, case number SJC-12891)  The brief was filed on behalf of the American Council of Engineering Companies of Massachusetts (ACEC) and the Massachusetts Chapter of the American Institute of Architects (AIA/MA).
In this case, the SJC will decide an issue concerning the application of the Statute of Repose to a multi-phase condominium development. 

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Article Authored by Jon Cowen Highlighted in ACEC/MA Winter 2020 Insights

Jon Cowen’s article on the recent SJC decision on consent to settlement was recently highlighted in the ACEC/MA quarterly newsletter. To read the full newsletter, click here. You can also view the original post here.
Jon also hosted a Roundtable webinar in conjunction with ACEC/MA highlighting major points in the case and how it affects Design Professionals. Click here, to view the presentation pdf.

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Massachusetts SJC Rules “Consent to Settle” Provisions Enforceable in Professional Liability Insurance Policies

by Jon C. Cowen
On December 16, 2019, in the case of Rawan v. Continental Casualty Company, the Massachusetts Supreme Judicial Court (SJC) issued an important decision affirming the right of design professionals, and their insurers, to include a “consent to settle” provision in professional liability policies. Donovan Hatem, LLP had filed a so-called amicus (friend of the court) brief in the case, on behalf of the American Council of Engineering Companies of Massachusetts (ACEC/ MA) and the Massachusetts Chapter of the American Institute of Architects (AIA/MA).

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“Fixed Price Affects Engineers Too!” David Hatem Published in Latest Engineering News-Record

In his letter to the editor, David discusses how a previously written article, “Fixing Construction’s Fixed-Price Condundrum,” highlighting that fixed-price procurement used on design-build and P3 projects negatively impacts contractors, has major significance for design professionals as well. David argues that liability issues arising for architects and engineers working on projects with design-build and P3 delivery methods with fixed-price procurement combined with increased unreasonable and imbalanced contractual risk allocation will render these project delivery methods unsustainable.

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The Design & Construction Management Professional Reporter: July 2019

Inside This Issue:
“Changing Professional Liability Practice Insurers: Perils for Consulting Engineers Involved in Design-Build Projects”
By: David J. Hatem, PC
“The Massachusetts Supreme Judicial Court Reaffirms Ruling that the Statute of Repose Permanently Bars All Claims”
By: Gwen P. Weisberg
To read our July 2019 issue, please click here.

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