The Design & Construction Management Professional Reporter: April 2018
Inside this Issue:
Colorado Court of Appeals Rules On Implementation Of Settlement Setoff
Federal District Court Dismisses Cross-Summary Judgment Motions in Copyright Action
Massachusetts Appeals Court Reverses Dismissal of Complaint Under Anti-Slapp Statute
Penzel: Missouri Court of Appeals Applies Spearin and Modified Total Cost Damages in Two Instances of First Impression
Recent Case Highlight: Third Party Claims
By: Brian C. Newberry
To read our April issue, please click here.
The Design & Construction Management Professional Reporter: December 2017
Inside this Issue:
Design-Build & Public-Private Partnerships: Managing Cost Overrun Risk for Project Owners On Infrastructure Megaprojects
By: John Reilly P.E., C.P.Eng. and David J. Hatem, PC, Esq.
Abstract
Cost overrun risk for owners has been a significant concern, prompting development of a number of best practices to more realistically identify and quantify risks that impact cost and schedule on megaprojects and to prudently allocate those risks among project participants.
Design-build (DB) and public-private partnership (P3) projects present owners with the opportunity to transfer substantial design and construction risks to private sector participants.
Climate Change, Sustainability and Resiliency Considerations In Design: Professional Liability Risk Issues for Consulting Engineers
By: David J. Hatem, PC
Climate change, sustainability and resiliency (CCSR) considerations are increasingly becoming important in the design process. Project owners are being presented and challenged with a range of legally permissible decisions regarding design options reflecting greater or less sensitivity to CCSR considerations. That field of options and range of corresponding owner decisions present professional liability risk issues for consulting engineers.
Read the entire article on page 1 in the Fall edition of ACEC Insights.
California Legislature Modifies Indemnity Obligations for Design Professionals
The California Legislature recently passed Senate Bill 496 which significantly modifies California Civil Code section 2782.8 (“Code”). The Code, as modified January 1, 2011, provided that any design professionals entering into a public contract or contract amendment had a duty to defend a public agency under an indemnity agreement and pay the public agency’s costs of defense associated with the design professional’s negligence, recklessness or willful misconduct; there was no limitation on the payment of the costs of defense. The Code provided further that all contracts and all solicitation documents between a public agency and design professional were “deemed” to incorporate those indemnity and defense requirements by reference.
Read MoreUpdate: Maryland Court of Appeals Affirms Dismissal in Duty of Care Case
In the April 2016 edition of the Design & Construction Management Professional Reporter, Donovan Hatem LLP reported that the Court of Special Appeals of Maryland, Maryland’s intermediate appellate court, issued a ruling that, in the absence of a contractual relationship on a public construction project, a design professional does not owe a duty of care to a contractor for purely economic losses. The Court declined to apply a “privity equivalent” analysis or impose an extra-contractual duty on the design professional since, as is the case with design-bid-build contracts, both the design professional and the general contractor were sophisticated businesses which had ample opportunity to define and allocate their risks in their contracts with the government owner.
Read MoreClimate Change, Sustainability, and Resiliency: Design Professional Roles and Risks
The need for design professionals to take climate change, sustainability, and resiliency (“CCSR”) into consideration in project design is growing. Of equal importance is the aspirational goal of educating owners to adopt CCSR objectives in project programs. These objectives need to be achieved in a process that adequately accounts for the management of design professional risks.
Roles in the Design Development Process
Design professionals, through their professional skill, acumen, and experience, provide services (including design) to their clients (typically private and public owners, and sometimes contractors and others) in making recommendations as to how to design a project that will achieve the programmatic objectives of their clients. Those recommendations typically emerge from studies that the design professional provides to its client. The scope and quality of those options and recommendations derive from the scope of services that the client engages the design professional to perform.
Read MoreThe Design & Construction Management Professional Reporter: June 2017
Inside this issue:
Massachusetts Federal District Court Applies Fed. R. Civ. P. 9(b) Heightened Standard of Pleading to Negligent Misrepresentation Claim
By Molly E. Manson, Esq.
Good Neighbor Design Practices: How Prudent Design Decision-Making Can Increase Project Success and Limit Professional Liability Exposure
By David J. Hatem, PC and Molly E. Manson, Esq.
Construction Control Affidavits and the Importance of Defining Design Professional Scope of Work
By Bryan R. Wieland, Esq.
Recent Case Highlights Important Business Lesson
By Brian C. Newberry, Esq.
Massachusetts Appeals Court Affirms Dismissal of Complaint Against Design Professionals Based Upon the Three-Year Statute of Limitations
Divergent Outcomes in Massachusetts Cases Demonstrate the Effect of a Comprehensive Bar Against Damages in a Subcontract
By Jennifer A. Lincoln, Esq.
Read MoreThe Design & Construction Management Professional Reporter: March 2017
Inside this issue:
Acceptance of Initial Design Documents in Divisible Design Contract Triggers Accrual of a Breach of Contract Action Against Design Professional
By Molly E. Manson, Esq.
Limitation of Liability Provision May Not Preclude Recovery Under Chapter 93A if Claim is Based Upon Fraudulent Conduct
New Hampshire Supreme Court Rules Municipalities Have Limited Time to Bring Lawsuits Against Design Professionals for Municipal Contract Breaches
By James L. Soucy, Esq.
Considering the Costs of Contract Arbitration Clauses
By Brian C. Newberry, Esq.
Read MoreThe Design & Construction Management Professional Reporter: December 2016
Inside this issue:
Diverse and Bifurcated Design Roles: Distinguishing Design Responsibility and Design Risk Allocation
Read MorePublic-Private Partnerships and Design-Build: Opportunities and Risks for Consulting Engineers
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 second 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, and offers timely recommendations about the rewards, challenges, and risk exposures for consulting engineers in today’s still evolving P3 and DB project work environment.
All proceeds from the sale of this book are exclusively retained by ACEC. To learn more about this edition or purchase a copy, visit www.acec.org.
Read MoreA Tale of Two Cities: Retrospective and Prospective Views of the Big Dig and Megaproject Delivery
By David J. Hatem, PC and Gregory S. Paonessa, Esq.
From the 1950s until substantial completion of the Central Artery Tunnel (CA/T) Project in 2006, otherwise known as the Big Dig, Boston was a city divided. Dubbed the “Green Monster” by locals, the elevated Central Artery ran from the north of the City southbound over the Charles River and by the Boston Garden. From that point, it separated the North End from the West End, and Government Center, Faneuil Hall and the Financial District from the Waterfront. The Artery provided a never ending source of smog and soot which covered surrounding buildings and engulfed the City in noise from vehicular traffic. It plagued the City as an under-designed, ill-conceived means of traversing from the North to the South Shore and the I-95 corridor.
Read the entire article on page 5 in ACEC Insights.
Read MoreThe Accountant/Attorney Liability Reporter: November 2016
Inside this issue:
Punitive Damages Claims Against an Accounting Professional May Be Allowed to Proceed Based on Gross Negligence
By Kristen R. Ragosta, Esq.
California Ruling Indicates MFAA Fee Arbitrations Now Subject to One-Year Statute of Limitations Defense
In Tax Scheme Case, Fraud Claim Against Attorney Allowed to Proceed
New York Dismisses Breach of Fiduciary Duty Claim Against Accountants Based Upon Statute of Limitations
Read MoreThe Design and Construction Management Professional Reporter: September 2016
Inside this issue:
Supreme Court Rules That Grounds for Judicial Review of an Arbitration Award Cannot be Altered by a Contract
By Kristen R. Ragosta, Esq.
Colorado Supreme Court Finds Tort Claims Not Barred by the Economic Loss Rule if Supported by an Independent Duty
By Lauren E. King, Esq.
New York Appellate Court Enforces the Economic Loss Doctrine and Bars Contribution Claim
By Nicholas G. MacInnis, Esq.
Resentful Homeowner Lacks Reliance and Proper Timing
By Gregory S. Paonessa, Esq.
Defense Verdict Highlights Importance of Defining Beneficiaries in Contracts
By Brian C. Newberry, Esq.
Read MoreThe Design and Construction Management Professional Reporter: April 2016
Inside this issue:
Mississippi Appeals Court Uses Seven Factors to Determine Whether Supervisory Powers Extend Beyond Contract Provisions Contained in A/E Contract
General Contractor’s Case Against Design Professional is not Barred by the Theory of Claim Preclusion
Maryland Court of Special Appeals Upholds Dismissal in Duty of Care Case Based on Purely Economic Losses
By Lucas M. Blackadar, Esq.
Contractor’s Delay Claim Against the Architect Survives Motion to Dismiss in Virginia
Expecting the Unexpected: Using Standard Construction Contingency to Establish Minimum Design Standard of Care
Read MoreThe Design and Construction Management Professional Reporter: January 2016
Inside this issue:
Owners, Take Heart – Amendment to Texas Condominium Law Gives Unit Owners a Voice in Construction Litigation
By Lucas M. Blackadar, Esq.
Risk Associated With Differing Site Conditions Can Be Expressly Assumed
By Amanda E. Mathieu, Esq.
Nullum Tempus Occurrit Regi? No, But the King Still Has a Long Time
By Lucas M. Blackadar, Esq. and Jonathan A. Barnes, Esq.
The Importance of Carefully Reviewing Contract Terms Including Those Incorporated by Reference
A Resident Engineer Providing Inspection Services Owes No Duty to a Subcontractor
By James M. Boyce, Esq.
Read MoreRelational Risk Allocation in D-B and P3s
Understand the various risks assumed by Design-Builder, Owner and Engineer Subconsultant in Design-Build and Public-Private Partnerships.
Read MoreAn Engineer’s Professional Liability Case in New Hampshire
By Michael Coghlan
In a recent case against an Engineer performing residential home inspections in the State of New Hampshire, the court dismissed the case and awarded attorney’s fees against the Plaintiff Homeowner.
Requirements for Establishing a Design Professional’s Liability
By Lauren M. Ippolito
In a recent decision by the New York Supreme Court in June 2014, the Court affirmed that expert testimony is a necessity in a case where is it alleged that a design professional failed to adequately perform its services or improperly performed its work pursuant to a contract.
Read MoreProject Management Firm Has No Implied Duty to Ensure the Safety of Subcontractor’s Employees
By Gregory Paonessa
The Massachusetts Superior Court (“Court”) recently held in Rodrigues v. Tribeca Builders Corp. that a project management firm whose duties are primarily logistical, managerial and administrative does not owe a duty to ensure the safety of project workers.
Read More