The Design and Construction Management Professional Reporter: October 2007

Inside this Issue

The Existence Of A Fiduciary Duty Between Architect And Its Client Is A Question Of Fact

By Jordan S. Rattray, Esq.

The Appeals Court of Minnesota recently decided that a design professional does not automatically owe a fiduciary duty to a client. In Carlson v. SALA Architects, Inc., 732 N.W. 2d 324 (2007), a dispute arose between an architectural firm and its client in connection with the design of a new home in Eden Prairie, Minnesota. The Carlsons retained SALA Architects, Inc. (“SALA”) to design a cottage-style home. SALA was selected for its experience in designing cottage-style homes. SALA assigned a new employee, David Wagner, to design the home. Although Wagner was an architect, he was only licensed in California. He did, however, work under the supervision of an architect licensed in Minnesota.

Massachusetts Supreme Judicial Court Recognizes Joint Defense Privilege Under The Common Interest Doctrine

By Amanda Y. Sirk, Esq.

The Massachusetts Supreme Court recently formally recognized the joint defense privilege between parties with a common interest, also known as the common interest doctrine, as an exception to the waiver of the attorney-client privilege.

There Is No Common Law Right To Indemnity Against Design Professionals For Violations Of The ADA

By Leslie P. King, Esq.

In Access 4 All, Inc. v. Trump International Hotel and Tower Condominium, 2007 WL 633951, the United States District Court for the Southern District of New York held that there was no common law right to indemnity under the Americans With Disabilities Act (“ADA”). In the absence of contractual indemnity, owners sued under the ADA cannot seek indemnity from design professionals.

California Appeals Court Rejects Public Owner’s Attempt To Disclaim Geotechnical Data

By David H. Corkum, Esq.

The Court of Appeals for California recently refused to enforce a public owner’s contractual attempt to disclaim geotechnical data. Condon-Johnson & Assoc. Inc., v. Sacramento Muni. Utility Dist., 149 Cal. App. 4th 1384 (April 2007). The contractor, Condon-Johnson & Associates, Inc. (“Condon-Johnson”) relied on that data in estimating its cost of performing the work in spite of clear contractual language prohibiting such reliance. The Appeals Court determined that the disclaimers could not operate to “undo” the geotechnical data “indications” contained in the Contract Documents because such an attempt would be contrary to California law.

Pursuing Legal Defenses At The Outset Of Litigation Can Be The Difference Between Winning And Losing

By Damian R. LaPlaca, Esq.

More often than not, clients, and in some instances their counsel, tend to overlook the importance of pursuing legal defenses at the outset of litigation and focus their attention on what will happen at trial. Seasoned litigation attorneys, however, know that the failure to recognize and pursue a legal defense at the early stages of litigation can be just as harmful as a misstep at trial. For example, in a recent lawsuit arising out of the construction of a municipal golf course in Massachusetts (the “Project”), through the foresight of its attorneys at Donovan Hatem LLP, an architectural firm (the “Architect”) was able to avoid the costs associated with a prolonged litigation and the risks of a trial.

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