The Design and Construction Management Professional Reporter: December 2005

Inside this Issue

No Matter How You Slice It, the Contract Language Reigns Supreme in Texas Even for a DSC

By David H. Corkum, Esq.

The United States Court of Appeals for the Fifth Circuit recently decided a case that reiterated and reinforced the supremacy of contract language in resolving a dispute concerning liability when actually encountered subsurface conditions differed from those expected.

Massachusetts Court Upholds No Damages for Delay Clause in Municipal Contract

In a recent decision, a Massachusetts Superior Court has reinforced a no damages for delay clause in an action against a City arising out of the design and construction of a municipal golf course. The Court dismissed the contractor’s complaint against the City, ruling that the no damage for delay clause in the project manual barred the contractor’s claims. Atlantic Golf Construction Ltd. v. City of Peabody, No. 2002-00798 (Essex Super. Ct., filed February 28, 2002). The Court similarly dismissed the City’s third-party complaint against the golf course designer seeking contribution or indemnity. Donovan Hatem LLP represented the designer.

Court Holds that Contractor Was Not an Intended Third Party Beneficiary of a Contract Between the Owner and Architect

A California appellate court has affirmed a trial court’s order dismissing a complaint filed by a contractor against an architect. In Greg Opinski Construction Company v. Pacific Design Associates, Inc., 2005 Cal. App. 5th Unpub. LEXIS 5525, the court held that the contractor failed to establish that it was either an intended third party beneficiary of a contract between the city and the architect or that they had a “special relationship” with the architect.

California Appeals Court Sets Aside Arbitration Award Due to Untimely Claim

In a breach of construction contract action, the California Court of Appeals held that an arbitration award that included damages for claims that were not timely submitted was contrary to the California Public Contract Code and, thus, not decided in accordance with state law. Department of Transportation v. Heritage Engineering Construction, Inc., 2004 Cal. App.Unpub.LEXIS 10631. Therefore, the Court set aside the award to the extent it included untimely claims.

Surety is Entitled to Maintain a Negligent Misrepresentation Claim Against Architect by Showing “Functional Equivalent” to Privity of Contract

In Travelers Casualty & Surety Co. v. Dormitory Authority of the State of New York (May 19, 2005)(Baer, J.), a federal district court in New York held that a contractor’s surety is entitled to maintain a negligent misrepresentation claim against the architect hired by the project’s owner to prepare plans and specifications, assist with the bidding process, and to oversee the work.

Appellate Courts in Illinois and Minnesota Address Expert Testimony

Expert testimony can play an important role in the outcome of a case; parties often must rely on expert testimony to establish a claim or defense. By definition an expert witness is someone whose special knowledge of a subject enables him/her to express opinions and draw conclusions in his/her testimony at trial. In an effort to limit uninformed and possibly misleading testimony, courts have tried to establish clear and consistent guidelines regarding experts. Recently, the Appellate Court of Illinois and the Court of Appeals of Minnesota addressed issues regarding the use of expert testimony.

North Carolina Court Interprets Use of Lay Witness in Lieu of Expert Testimony in Professional Negligence Claims

By Douglas M. Marrano, Esq.

In a recent decision by the Court of Appeals of North Carolina, the court decided a general contractor’s use of its own employee in lieu of an expert witness failed to establish the relevant standard of care for a civil engineer or whether the engineering company had breached the applicable standard of care. Handex of the Carolinas, Inc. v. Cty. of Haywood, et al., 607 S.E.2d 25 (N.C. Ct. App. 2005).

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