The Design and Construction Management Professional Reporter: January 2008

Inside this Issue

Massachusetts Court Rules Design Team Is Not Responsible for Contractor’s Failure to Perform Work

By John W. Dennehy, Esq.

A Massachusetts Superior Court recently ruled that a design team is not responsible for a contractor’s failure to perform work according to the specifications of the construction documents by failing to install warning signage, which allegedly caused the electrocution of a worker. In addition, the court ruled that the design team’s duty to visit the site did not require it to compel conformance by any party to meet design specifications. Kelly A. LeBlanc, as Administratrix of the Estate of Roger M. LeBlanc v. Logan Hilton Joint Venture, Mass. Supr. Ct. No. 05-0276D (Suffolk County).

Georgia Court Upholds Enforceability of Limitation of Liability Clauses in Favor of Design Professional

By Eric A. Howard, Esq.

In a recent decision, the Court of Appeals of Georgia upheld a trial court’s entry of summary judgment in favor of an engineering firm on the basis that the engineering firm’s liability was contractually limited to the amount of fees paid to the engineering firm.

Mississippi Appeals Court Rejects Exculpatory Clause Argument

The United States Court of Appeals for the Fifth Circuit recently held that a design professional may not be completely protected by an exculpatory clause in its contract. Lyndon Property Insurance Co., v. Duke Levy and Associates, LLC, 475 F.3d 268 (5th Cir. 2007).

United States Court of Federal Claims Finds No Breach of Implied Warranty

By Peter C. Lenart, Esq.

In September of this year, the United States Court of Federal Claims issued its opinion in Caddell Construction Co. Inc., v. United States, 78 Fed.Cl. 406 (2007). The decision addressed plaintiff’s contention that specifications received for a government contract, the custom fabrication of structural steel for a VA medical center in Tennessee, were design specifications as opposed to performance specifications. A design specification contract carries with it an implied warranty that satisfactory contract performance by a government contractor will result from adherence to the design specifications. A defective design specification in a government contract is one that is so faulty as to prevent or unreasonably delay completion of the contract performance.

Texas Case Reviews Power of the Discovery Rule

By Samuel R. Pierce, Esq.

In Kizer v. Meyer, Lytton, Alen & Whitaker, Inc., 228 S.W.3d 384 (Tex. App. 2007), Texas’s intermediate appellate court, The Court of Appeals of Texas, recently held that the full extent of damages or claims need not be known by a plaintiff to start the running of the statute of limitations. This holding places a burden on plaintiffs to investigate more fully any damages sustained and provides an opinion helpful to defendant design professionals.

The Pendulum Begins to Swing Back: Recent Judicial Limitations on the Negligent Misrepresentation Exception to the Economic Loss and the Spearin Implied Warranty Doctrines

By David J. Hatem, PC

Recent court decisions evidence a positive trend to limit the negligent misrepresentation exception to the economic loss doctrine and the so-called Spearin implied warranty doctrine. Both doctrines, while conceptually distinct, have served to allow the assertion and recovery of substantial construction contractor claims that directly, or indirectly, impact the professional liability exposure of design professionals. These decisions—and the trend that they potentially represent—are important and should be understood by design professionals.

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