The Design and Construction Management Professional Reporter: April 2007

Inside this Issue

Adjudication Of Contractor’s Defective Specification Claim “Collapses” Into Its Parallel Differing Site Condition Claim

By David H. Corkum, Esq.

The United States Court of Federal Claims recently reaffirmed that when a plaintiff asserts a defective specification claim as an alternative theory of recovery to its differing site conditioning (“DSC”) claim, the court will analyze both as a single, DSC claim. The court’s decision also provides an excellent, concise analysis of that DSC claim indicating which elements of the claim were capable of determination as a matter of law and thus subject to a ruling on summary judgment, and which elements presented issues of facts requiring presentation of evidence and finding of fact.

Court Of Appeals Rules Engineer Entitled To Award Of Attorneys’ Fees In Unsuccessful Suit By Contractor

In the First Circuit Court of Appeals recently reversed a Federal District Court judge, after the judge vacated a jury verdict awarding an engineer indemnity against the general contractor. The indemnity award reimbursed the engineer for legal fees incurred in defending itself in a lawsuit brought by the general contractor who was suing to recover extra costs incurred in completing the project.

Engineer May Have A Duty To A Surety, Despite An Exculpatory Clause Stating Otherwise

By Jordan S. Rattray, Esq.

The Fifth Circuit Court of Appeals recently decided, in the matter of Lyndon Property Insurance Co. v. Duke Levy and Associates, LLC, 475 F.3d 268 (5th Cir. 2007), that the engineer of record’s duty to inspect the contractor’s work creates a genuine issue of material fact that cannot be determined as a matter of law, despite a contractual limitation of liability.

Georgia Federal Court Grants Summary Judgment For Architect On Breach Of Contract And Negligence Claims

A Federal Court in Georgia recently granted summary judgment in favor of an architect on claims for breach of contract, professional negligence, negligent misrepresentation and common law indemnity in Carolina Cas. Ins. Co. v. R.L. Brown & Associates, Inc., 2006 U.S. Dist. LEXIS 89412 (N.D. Ga. 2006).

Armed Services Board Of Contract Appeals Substantially Rejects Contractor’s Multi-Million Dollar Claim For Damages

On September 1, 1995, Lovering-Johnson, Inc. (“LJI”), entered into a contract with the Navy to design and construct a housing office/community center, 140 family housing units and associated site improvements at a former Naval Air Station in The Village of Glenview, Illinois (“Glenview”). Work was to proceed according to a “phased construction” schedule. LJI planned to complete all design work between October and December, 1995, to begin construction on March 1, 1996, and to complete the project in eighteen months, approximately five months early. In fact, construction did not begin until July 24, 1996; once started, however, there were no delays and the project was completed in February, 1998.

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