May 2023 Roundtable – Cybersecurity for the Design Professional: Mitigating Risks in Today’s Digital World
Join us Wednesday, May 17th, for our May Roundtable Cybersecurity for the Design Professional: Mitigating Risks in Today’s Digital World as we address cybersecurity and its importance to your business. Over the last couple of years, there has been a significant increase in data breaches and scams. The need for digital protection is greater now than ever. In this roundtable, we will discuss the necessary steps to secure your data, provide real-life case studies and address the legalities of it all.
Read MoreNorth Carolina Court Clarifies [1] Plaintiffs Have the Burden of Proving—not Pleading—That Their Claim Was Filed Within the Statute of Repose and [2] the Statute of Repose Commences on Substantial Completion for Each Contractor
In August 2022, the North Carolina Court of Appeals held that claims against an engineer and a subcontractor were improperly dismissed at the pleading stage where the plaintiff did not allege an act or date of substantial completion regarding the statute of repose in its complaint. Gatson County Board of Education v. Shelco, LLC, 877 S.E.2d 316 (N.C. Ct. App. 2022) concerned an action by the Gatson County Board of Education (the “Board”) against Shelco,
Read MoreFederal Court in South Florida: Original Architect Liable for Design Flaws in Original Plans Despite Appointment of Successor Architect
The Unites States District Court for the Southern District Court of Florida issued an opinion in Hotels of Deerfield, LLC et al. v. Studio 78, LLC et al., (2022 WL 731944 (S.D. Fla., Mar. 11, 2022) (Singhal, J.) holding a project’s original architect responsible for design flaws in his drawings, even though he had been replaced by a successor architect. This was the case even though the building was constructed solely based on the successor architect’s design and specifications.
Read MoreThe Assignment of a Design Agreement Must Be Carefully Drafted
By Gail Kelley
When contemplating entering into a design-build agreement for a Project, owners often contract with a design professional to provide various services for the Project before they enter into an agreement with the Design-Builder. Depending on what these services entail, the documents developed by the design professional may serve as the Basis of Design for the design-build agreement, or the Owner may assign the design professional’s agreement, including the documents prepared under the agreement,
Read MoreThe Economic Loss Doctrine’s Relevance To Construction Cases And Recent Application In Arizona And North Carolina
INTRODUCTION
Understanding and calculating damages that may be recoverable is an essential element in any claim or lawsuit, as such informs on how to defend and how to work toward a resolution. This is especially relevant in construction litigation where damages can be large and accrue over a sustained period of time. Of equal import is knowing what is not recoverable. The economic loss doctrine (“ELD”) is one limitation on recoverable damages that will often apply to construction cases.
Read MoreThe Design & Construction Management Professional Reporter: Spring 2023
Inside This Issue:
Note from the Editor
Donovan Hatem is pleased to present its Spring 2023 D&C Reporter. This past winter saw dramatic shifts in weather from day to day. Economic conditions have been equally unsettled and oftentimes defy prediction, but there is a wide array of public and private projects that occupy the industry.
This edition discusses recent cases on the statute of repose as it applies to design professionals in a variety of contexts,
Read MoreMassachusetts Superior Court Finds Injured Pedestrian’s Claims Against Contractor Not Time-Barred, Despite Arising 6+ Years After Project Completion
The Massachusetts Superior Court recently refused to dismiss a pedestrian’s personal injury claim against a contractor, rejecting the contractor’s argument that such claims should be time-barred under the Massachusetts statute of repose in Lefta v. Signet Electronics, Inc., 2022 WL 16855617, at *1 (Mass. Sup. Ct.).
Lefta involved a pedestrian injured by a faulty door lock at a nursing home. Years before that incident, in October of 2010,
Read MoreMarch 2023 Roundtable – 15 Most Controversial Contract Provisions: What You Need to Know
Join us as we discuss the most controversial contract provisions to assist design professionals in avoiding and managing professional liability risks.
At this roundtable, you will learn:
- the recommended contract approaches design professionals should use
- key contractual provisions and principles
- risk management through contracts and some pitfalls to avoid
- how to descend risks to Sub-Consultants
Speaker:
Gwen P. Weisberg, Partner, Donovan Hatem LLP
David Hatem Quoted in Engineer News-Record Article
David Hatem was recently featured in Engineer News-Record. The article “Will Claims by Contractors on Big Design-Build Projects Ever End?”, written by Richard Korman, discusses the major trend in fixed-price design-build project disputes that have resulted in significant financial and profit losses for some of the largest U.S. contractors over the last decade.
Some of David’s quotes include:
“Attorney David Hatem, who represents engineers, says the trouble with that is there is not much established legal precedent of the standard of care for design work done for an infrastructure design-build proposal.”
Read MoreJanuary 2023 Roundtable – What’s New: A Review of 2022 and Recent Cases Involving Design Professionals
Join us Thursday, January 27, 2022, for our first Roundtable of 2023 – a timely case study presentation focused on common legal issues faced by design professionals
Speakers:
Thomas Fay, Partner, Donovan Hatem LLP
Stephen Willig, Partner, Donovan Hatem LLP
Barry Rothschild, Of Counsel, Donovan Hatem LLP
The concept 2022-2023 with steps,
November 2022 Roundtable – Designing for Climate Change, Sustainability and Resiliency (“CCSR”) – Challenges and Concerns
Join us Thursday, November 17th, for our November Roundtable Designing for Climate Change, Sustainability and Resiliency (“CCSR”) – Challenges and Concerns
Questions that will be addressed:
- How do CCSR Concerns Impact the Design Professional’s Standard of Care?
- What are some of the important Risk Management Considerations for CCSR?
- What are some of the challenges in designing for CCSR?
- Can a Design Professional be held liable for failing to anticipate Climate Change?
Article: Recalibrating and Improving Design-Build on Public Infrastructure Projects*
Introduction
By all accounts, Design-Build (“DB”) has become the delivery method of choice for most owners of public infrastructure projects (“PIPs”) such as highways, rails, bridges, tunnels, airports and other projects. While DB delivery of PIPs is, beyond doubt, here to stay, contractors and consulting engineers (and other design professionals) involved in PIPs have experienced substantial financial losses and unacceptable levels of imbalanced risk transfer and liability exposures on a prevalent basis.
Read MoreSeptember 2022 Roundtable – Design Assist, Design Delegation, Design-Build: What are the Differences?
Join us Tuesday, September 27th, when David Hatem will present the Roles, Responsibilities and Risk Allocation for Design Professionals in the context of various Project Delivery Approaches including a discussion of the increased utilization of collaborative approaches to Project Design, and issues associated with design delegation and design assist, CM/GC and Progressive Design-Build.
Questions that will be addressed:
- What are the essential differences between Design Delegation and Design-Assist?
- Who has responsibility for design risk and design adequacy in Design-Assist?
The Design & Construction Management Professional Reporter: September 2022
Inside This Issue:
Note from the Editor
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,
Read MoreTexas Appellate Court Holds Certificate Of Merit Against One Design Professional Does Not Apply To Sub Consultant By Mere Reference To Such In A Pleading
The Texas Court of Appeal (14th District) issued an April 2022 opinion in Thompson Hancock Witte &
Associates v. Stanley Spurling & Hamilton, 2022 WL 1010270, affirming that state’s requirement for a certificate of merit in a suit against a design professional. In particular, the Court held a certificate of merit directed toward one professional would not, through simple reference in a pleading, apply to another professional even though the alleged breach of the standard of care is the same for both.
Statute Of Repose: New York May Finally Be Joining The Rest Of The Country
A Statute of Repose, for purposes of this discussion, bars a claim against design professionals and contractors after passage of a certain amount of time from project completion. This is similar to but different than a Statute of Limitations, which sets a deadline to commence a lawsuit measured from the time an injury occurs or when a professional engagement, if injury occurred during that engagement, ends. The rationale behind the former is to allow design professionals and contractors to put a project to rest,
Read MoreNevada Supreme Court Finds Breach Of Contract Against Architect Under State Law Is Not Preempted By The ADA
In December 2021, the Nevada Supreme Court held state law claims brought against an architect for failure to comply with ADA Guidelines were not preempted by the Americans with Disabilities in Board of Regents of Nevada System of Higher Education on Behalf of the University of Nevada, Reno v. Worth Group Architects, P.C., 499 P.3d 1177 (Nev. 2021). Worth Group Architects, P.C. (“WG”) was contracted to design renovations to Mackay Stadium,
Read MoreEquitable Adjustment Awarded To Contractor For Defective Specification In RFI
On November 21, 2021, the Civilian Board of Contract Appeals (the “Board”) (an independent tribunal within the General Services Administration (“GSA”) that presides over contract disputes between government contractors and agencies under the Contract Disputes Act) issued a decision in Wu & Associates v. General Services Administration. Wu & Associates (“Wu”) challenged a denial by the GSA for additional funds for claimed expanded scope of work. Specifically, Wu sought additional funds to strengthen flooring in order to move heavy equipment for an elevator modernization project.
Read MoreSteve Willig to Speak at DBIA NE Friday Forum
Steve Willig, a partner in the firm, will be speaking at the Design-Build Institute of America (DBIA) New England’s September Friday Forum via Zoom to be held on Friday, September 9, 2022.
His presentation, “Design-Build – Smart Ways to Maintain a Productive Designer-Contractor Relationship,” will discuss techniques to develop at the outset, as well as to maintain throughout the project, that help cement a good working relationship between designer and contractor — ways to make sure you keep the project moving and avoid road bumps.
Read MoreDonovan Hatem LLP Elevates James Worden to Partner
Boston, MA (August 2022) – Donovan Hatem LLP is pleased to announce that James N. Worden is now a partner of the Firm.
James joined the Firm’s Litigation group in 2021 as Of Counsel, bringing significant experience in Construction Litigation, Design-Bid-Build and Design-Build project delivery and specializes in handling contract negotiation, claim presentation, and litigation of both public and private construction project disputes.
Since joining Donovan Hatem LLP, James has exhibited leadership and expertise in addressing the issues of concern facing the Firm’s clients,
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