The Design & Construction Management Professional Reporter: June 2017

Inside this issue:

Massachusetts Federal District Court Applies Fed. R. Civ. P. 9(b) Heightened Standard of Pleading to Negligent Misrepresentation Claim

By Molly E. Manson, Esq.

Good Neighbor Design Practices: How Prudent Design Decision-Making Can Increase Project Success and Limit Professional Liability Exposure

By David J. Hatem, PC and Molly E. Manson, Esq.

Construction Control Affidavits and the Importance of Defining Design Professional Scope of Work

By Bryan R. Wieland, Esq.

Recent Case Highlights Important Business Lesson

By Brian C. Newberry, Esq.

Massachusetts Appeals Court Affirms Dismissal of Complaint Against Design Professionals Based Upon the Three-Year Statute of Limitations

By Patricia B. Gary, Esq.

Divergent Outcomes in Massachusetts Cases Demonstrate the Effect of a Comprehensive Bar Against Damages in a Subcontract

By Jennifer A. Lincoln, Esq.



Massachusetts Federal District Court Applies Fed. R. Civ. P. 9(b) Heightened Standard of Pleading to Negligent Misrepresentation Claim

By Molly E. Manson, Esq.

On February 12, 2016, the U.S. District Court for the District of Massachusetts issued a decision denying the Defendants’ motion to dismiss Plaintiffs’ negligent and intentional misrepresentation claims in Cabi v. Boston Children’s Hospital.[1] The decision was based on a finding that the Plaintiffs had plausibly stated a claim for negligent and intentional misrepresentation under the heightened standard of pleading required by Fed. R. Civ. P. 9(b).[2] Although this case does not involve design professionals or a construction claim, it is useful in instructing design professionals how a plaintiff may allege negligent misrepresentation to circumvent the Economic Loss Doctrine.

Motions to Dismiss

Unlike a summary judgment motion, which is decided on the merits of a case, a motion to dismiss tests the legal sufficiency of a complaint and is determined solely on the pleadings.[3] Fed. R. Civ. P. 12(b) sets forth seven affirmative defenses that may be asserted in a motion to dismiss in response to a plaintiff’s complaint.[4] Strictly speaking, the Rule requires all motions asserted pursuant to Rule 12(b) be filed before an answer is due.[5] Since an answer is due within 21 days after a defendant is served with a summons and complaint, motions to dismiss asserting one of the enumerated 12(b) defenses must be filed within this 21-day time period.[6]

In Cabi, the Defendants timely moved to dismiss the claims asserted in the Plaintiffs’ amended complaint in accordance with Fed. R. Civ. P. 12(b)(6), including claims for negligent and intentional misrepresentation,[7] on the grounds that the Plaintiffs’ claims failed to state a claim upon which relief could be granted.[8]

Standard of Review for Motions to Dismiss

When deciding a motion to dismiss under Rule 12(b)(6), “the Court must determine if the facts alleged ‘plausibly narrate a claim for relief.’”[9] In Cabi, the Court held that to make this determination, it must engage in a “two-step, context-specific inquiry.”[10] “First, the Court must perform a close reading of the complaint ‘as a whole’ to distinguish the factual allegations from the conclusory legal allegations contained therein.”[11] The former must be accepted as true, whereas the latter may be disregarded.[12] “Second, the Court must determine whether the factual allegations present a ‘reasonable inference that the defendant is liable for the conduct alleged.’”[13] While this “context-specific inquiry” typically does not require “a high degree of factual specificity,” the Cabi Court held that claims involving misrepresentation must be evaluated under the heightened standard of pleading required by Fed. R. Civ. P. 9(b).[14]

Standard of Pleading Misrepresentation Claims According to Cabi

Unlike other causes of actions, claims alleging fraud or mistake must be pled with particularity under the Federal Rules of Civil Procedure.[15] In Cabi, the Court held that “[f]or pleading purposes, ‘misrepresentation is considered a species of fraud.’”[16] For such claims, “[t]he pleader usually is expected to specify the who, what, where and when of the allegedly false … representation.”[17] The Cabi Court applied this heightened standard of pleading to the Plaintiffs’ claims of negligent misrepresentation and intentional misrepresentation [18] “out of an abundance of caution” because the courts “are split on whether to apply the heightened pleading standard to claims of negligent misrepresentation.”[19] By concluding that the Plaintiffs had stated a claim upon which relief could be granted, the Court determined that the Plaintiffs had pled the circumstances surrounding the “who, what, where, and when” of the alleged misrepresentation with sufficient particularity to satisfy the heightened pleading standard.[20]

Application to Design Professionals

This case is important for design professionals because it applied the heightened pleading standard imposed by Fed. R. Civ. P. 9(b) upon negligent misrepresentation claims asserted under Massachusetts law. These claims are often asserted against design professionals to circumvent the Economic Loss Doctrine,[21] which provides that for “claims based on negligence, ‘purely economic losses are unrecoverable…in the absence of personal injury or property damage.’”[22] “An exception to the [economic loss] doctrine permits recovery for economic losses resulting from negligent misrepresentation.”[23]

Based on the foregoing, claimants seeking to assert claims against design professionals for purely economic losses will try to shoehorn their claims into this negligent misrepresentation exception to force design professionals into litigation. This strategy will often result in a settlement to enable the design professionals to avoid the time and expense of costly litigation. In the past, vague allegations comprising a negligent misrepresentation claim were sufficient to survive a motion to dismiss. Now, however, such claims may be dismissed under the heightened pleading standard adopted in Cabi. Following that decision, to survive dismissal, a plaintiff must now plead the circumstances surrounding the alleged misrepresentation in significant detail. As such, the new heightened pleading standard could potentially reduce the number of frivolous negligent misrepresentation claims.

As discussed above, the window to attack the sufficiency of the complaint is small. A motion to dismiss must be filed prior to, or concurrently with, the design professional’s answer to a plaintiff’s complaint.[24] Therefore, in actions against design professionals for negligent misrepresentation, attorneys must move quickly to consider the sufficiency of a complaint and determine whether a plaintiff has sufficiently pled a claim for negligent misrepresentation under the heightened Cabi standard of pleading.

Although the Federal Rules of Civil Procedure permit a party to amend a complaint once as a matter of course within 21 days following service of an answer or a Rule 12 motion, application of the heightened pleading standard should serve as a method of separating meritorious claims from frivolous ones. [25] If meritorious, a plaintiff should have little difficulty specifying the time, place and context of any alleged misrepresentations.[26] If it is unable to do so, courts may be inclined to dismiss the claims against a design professional, including those for negligent misrepresentation. Even if the claim is not dismissed, however, this heightened standard of pleading will afford design professionals a much better understanding of the plaintiff’s allegations.

[1] Cabi v. Boston Children’s Hospital, 161 F.Supp.3d 136, 145 (D. Mass. 2016).
[2] Id.,163.
[3] Travel Magazine, Inc. v. Travel Digest, Inc., 191 F.Supp.830 (S.D.N.Y. 1961).
[4] See Fed. R. Civ. P. 12(b)(1)-(7).
[5] See Fed. R. Civ. P. 12(b).
[6] See Fed. R. Civ. P. 12(a).
[7] Cabi, supra 145.
[8] Id.,163.
[9] Cabi, supra 142 (citing Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012)).
[10] Cabi, supra 142 (citing Garcia-Catalan v. United States, 734 F.3d 100, 103 (1st Cir. 2013))1.
[11] Cabi, supra 142.
[12] Cabi, supra 142.
[13] Id. (citing Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011).
[14] Cabi, supra 163.
[15] See Fed. R. Civ. P. 9(b).
[16] Cabi, supra 163 (citing Alternative Sys. Concepts, inc. v. Synopsys, Inc., 374 F.3d 23, 29 (1st Cir. 2004)).
[17] Ibid.
[18] Cabi, supra 163.
[19] Id. (citing AcBel Plytech, Inc. v. Fairchild Semiconductor Int’l, Inc., No. 13-cv-13046-DJC, 2014 WL 4656608, at *10 (D. Mass. Sept. 12, 2014) (noting that “there is a split in authority as to whether Fed. R. Civ. P. 9(b), which requires plaintiffs to plead some claims with particularity, even applies to claims for negligent misrepresentation under Massachusetts law”); Gardner v. Simpson Fin. Ltd. P’ship, No. 09-cv-11806-FDS, 2012 WL 1109104, at *4 n. 12 (D. Mass. March 30, 2012) (noting that “[i]t is unclear whether Rule 9(b) always applies to claims of negligent misrepresentation”, however, “Rule 9(b) applies to claims of negligent misrepresentation where the core allegation is fraud, and likely does not apply where the core allegation is negligence.”)).
[20] Ibid.
[21] Nota v. Corp. v. Keyes Associates, Inc., 45 Mass. App. Ct. 15 (Mass. App. Ct. 1998).
[22] Afridi v. Residential Credit Solutions, Inc., 189 F.Supp.3d 193, 199 (D. Mass. 2016).
[23] Nota, supra 21.
[24] See Callahan v. Wells Fargo & Co., 747 F.Supp.2d 247 (D. Mass. 2010).
[25] See Fed. R. Civ. P. 15(a)(1).
[26] See First Choice Armor & Equip., Inc. v. Toyobo Am., Inc., 717 F. Supp.2d 156 (D. Mass. 2010) (“Fed. R. Civ. P. 9(b)…mandates that in all averments of fraud…the complaint must, at a minimum, specify the ‘time, place, and content of the alleged false or fraudulent representations…”).



Good Neighbor Design Practices: How Prudent Design Decision-Making Can Increase Project Success and Limit Professional Liability Exposure

By David J. Hatem, PC and Molly E. Manson, Esq.

“Good Neighbor Design Practices” refers to a number of specific design considerations relating to permanent work for any given particular project – your client’s project – that may have external, and potentially adverse impacts and influences on adjacent structures or property.

These external impacts and influences start at the very bottom (below ground) of your client’s project and vertically proceed upward – alternate among various design disciplines, and include issues such as:

  • Subsidence
  • Settlement
  • Groundwater impact
  • Structural damage
  • Increased energy and operations and maintenance costs
  • Sound and noise
  • Visibility and views
  • Lighting and shadows
  • Access
  • Air interactions (e.g. wind tunnel effects)

It is accurate to observe that many of these external impacts and influences may be addressed in zoning or other regulations, in permits and approvals, or environmental impact statements (“regulatory requirements”).

These regulatory requirements may prescribe, preclude or constrain your client’s options and decisions as to the permanent design of its project in a way that affects the ability to eliminate or mitigate adverse risk or consequences of certain of the project-specific perceived external impacts and influences.

That said, even with regulatory requirements, there are likely to be a host of external impacts and influences relevant to your client’s project that are not explicitly addressed in those requirements and are simply relegated to the sphere, and variability of design decisions to be made by your client, ideally in a manner informed by your appropriate recommendations and judgments.

What does the standard of care require of the design professional in these circumstances, especially in providing recommendations that inform the client’s decisions?

Will it be sufficient for the design professional to defend itself in a subsequent claim by the client or a third-party – for example, an owner, user or occupant of an adjacent structure – on the basis that the client did not retain the design professional to investigate, evaluate, prepare studies, perform condition surveys, or make recommendations and risk assessments concerning how the project design may produce external and potentially adverse impacts and influences on adjacent structures?

This article will address these important issues related to professional liability exposure of the design professional, and will aim to tackle two critical questions:

1. How should the design professional articulate and document recommendations to its client as to the availability and advisability of prudent, sensible and sound design features that – while potentially increasing initial project cost or schedule – may significantly mitigate the risk of adverse external impacts and influences?

2. How may the design professional manage and limit its professional liability risk in circumstances in which its client does not authorize the preparation of any such recommendations, or refuses arbitrarily to accept them?

Underlying these two critical questions is a recognition that often the pragmatic drivers in client design decision-making are a reduction of initial cost and schedule considerations and, in many instances, emphasis on quality of its completed project. Consideration of external impacts and influences tends to receive lesser attention beyond that required to achieve regulatory compliance.

The result is that there could be a serious disconnect and collision between (a) sound and sensible design recommendations of the design professional that are appropriately sensitive to external impacts and influences on adjacent structures, and (b) client decisions relating to the commissioning or reasonable acceptance of such recommendations. This disconnect may lead to tensions with the client and, if not properly addressed, documented and resolved, increase the risk of professional liability claims by the client and/or third-parties against the design professional.

On May 10, 2017, Donovan Hatem hosted a roundtable discussion with a panel[1] of design professionals (structural engineer, geotechnical engineer, and architect) to discuss ways to proactively evaluate a project and consider external impacts presented by neighboring conditions and adjacent structures. Panel members reflected on their own experiences from different perspectives, addressed lessons learned and provided contractual and risk management recommendations for performing design services.

What is Adjacent Construction and Why is it Important to Design Professionals?

Construction in close proximity to adjacent structures poses special issues concerning the impacts of that construction on those structures. An adjacent structure can be a building, a utility (above or below ground), a road or sidewalk, or a buried structure like a tunnel or mass transit. According to the geotechnical engineering panelist, such issues tend to arise below ground level. Examples include, but are not limited to, formwork failures resulting in fluid concrete entering another neighbor’s building, demolition of a building providing support to another building, excavation of bedrock that exposes unknown geological features, and construction dewatering that erodes the soil on the construction site.

These issues, as well as many others, make adjacent construction, and its impact on neighbors, a critical consideration for owners and their design professionals at the onset of a project. Failure to recognize these issues early can lead to three types of setbacks: (1) damages; (2) delay; and (3) litigation.

Physical damages to an adjacent structure can become costly and impede the project schedule thus causing delays and litigation. If an adjacent structure is damaged, work on the project may be forced to stop thereby causing the contractor to adjust its means and methods to recover time lost. This often leads to litigation, as the adjacent owner will seek to stop construction and claim compensation for damage to its property and the contractor will seek damages for delay. Given the time-consuming and expensive nature of litigation, advance consideration of these issues may save a client significant time and money, and reduce the risk of professional liability claims by a client and/or third-parties against a design professional.

Consideration of these issues is not only sensible but legally required by the International Building Code (“IBC”). Chapter 33 of the IBC imposes a duty to protect adjoining property from damage during construction, remodeling and demolition work. Specifically, §3307.1 provides the following with respect to the protection of adjoining property:

3307.1 Protection required. Adjoining public and private property shall be protected from damage during construction, remodeling and demolition work. Protection must be provided for footings, foundations, party walls, chimneys, skylights and roofs. Provisions shall be made to control water runoff and erosion during construction or demolition activities. The person making or causing an excavation to be made shall provide written notice to the owners of adjoining buildings advising them that the excavation is to be made and that the adjoining buildings should be protected. Said notification shall be delivered not less than 10 days prior to the scheduled starting date of the excavation.

As design professionals are often required to opine that their design was developed in accordance with the IBC, it is important to communicate and coordinate with adjoining neighbors throughout the project. Such coordination can be accomplished through a pre-construction licensing agreement between developers and adjacent property owners to allow limited access to adjacent properties to install protections and perform monitoring. The agreement defines the protections to be installed, and minimum monitoring to be performed, including threshold limits. It also includes indemnification language and insurance requirements. Adjacent property owners are typically listed as additional insureds on the developer’s insurance policies. As one panelist pointed out, it is difficult to evaluate the risks to adjacent buildings without having access to them. Regardless of whether a licensing agreement is in place, obtaining information about adjacent structures prior to construction is critical to understanding how adjacent structures will respond to contiguous construction.

During the pre-construction phase, a design professional’s concerns regarding an adjacent structure should center on the type, size, condition, and maintenance on the building or property. Major concerns include whether the adjacent structure is a separate building or contains adjoining walls; whether it was constructed using unreinforced masonry, concrete, or steel; whether there are stability concerns; and, whether there are weatherproof integrity issues of which a design professional should be aware. Understanding the composition of an adjacent building is vital to managing a client’s risk.

Information about adjacent structures can be found in a variety of places, including building departments, public libraries, and building records. Speaking with adjacent owners directly and conducting visual surveys and inspections of neighboring properties can be effective ways to gather information. Acquiring information related to an adjacent structure’s foundation can require data testing, including geotechnical investigations, which will expose and document foundation depth. This information can then be used to design a support system to minimize the impact on the existing adjacent building.

Common errors arise when incorrect assumptions are made, particularly with respect to the depth and type of foundation below the adjacent structure. Other incorrect assumptions, such as the orientation of the frame, slab on grade support, and susceptibility to vibration damage and soil consolidation, can result in damage to adjacent structures and liability for design professionals.

Failing to verify actual conditions during construction is another common error. While there is a fine line for designers when it comes to contractors’ means and methods, coordination between a design professional and a contractor is key in situations where actual conditions have not been verified. Means and methods are typically defined by a contractor and should involve very limited input from the design team. In situations where a contractor seeks direction from a design professional as to adjacent structures, it is pragmatic for the designer to think through the issues with the contractor without dictating means and methods. This can be done through performance-based specifications or shop drawing reviews. By providing a very limited contribution to a contractor’s means and methods, a design professional can reduce the risk of professional liability claims by the contractor in the event an adjacent structure is damaged through a contractor’s means and methods.

How Can Risks Associated with Adjacent Construction be Mitigated?

There are risk mitigation practices to minimize any adverse effect construction may have on its neighbors and reduce the risk of professional liability claims. According to the structural engineering panelist who specializes in forensic engineering, these risk mitigation practices can be broken down into three important steps:

Step 1: Communication

Think of good neighbor design practices as a reiteration of the golden rule: treat others the way you want to be treated. Start with communication during the outset of design to allow a design professional to obtain information about adjacent structures and understand how they will respond to adjacent construction. This is particularly helpful in situations where there are unknown and/or unusual below-grade issues that can substantially impact the project’s progression. Acquiring an understanding of structures adjacent to a project site is critical to mitigating risk for both the design professional and its clients.

Step 2: Research

To truly mitigate risk, a design professional must learn as much as reasonably practicable about the adjacent structure. Again, communication and research go hand-in-hand, and there are various ways to obtain information about an adjacent structure. Communicating directly with the neighbors to learn about, and gain access to, adjacent structures can save time and resources. While public sources are also an option, building departments and public libraries tend to have insufficient information to adequately verify adjacent conditions. Pre-construction surveys of adjacent buildings and site visits can prove particularly useful in obtaining critical information such as foundation depth. Undermining below-grade conditions can cause problems to a project that can lead to the three types of setbacks discussed above. Limiting the probability and severity of these problems during pre-construction can greatly reduce the professional liability risk to the design professional.

Step 3: Action

Once a design professional has obtained adequate information about an adjacent structure, the final step is to minimize the impact adjacent construction will have on the neighbors. Some steps that can be taken include using low impact equipment to reduce noise, drop protection to shield fallen objects or steel and concrete platforms to protect occupied space. Depending on the project, there are various risk management strategies that, while potentially increasing initial project cost or schedule early on, can significantly mitigate the risk of adverse external impacts to the overall project and to a design professional.

What Adjacent Construction Issues are Important from an Architectural Perspective?

There are many considerations specific to architects that relate to adjacent construction. According to one panelist, an architect,  scale is a crucial issue when it comes to adjacent construction. Scale is a building’s size in relationship to other buildings. The extent of an architect’s design recommendation with respect to neighboring buildings depends on the level of interaction between the construction site and the adjacent building.

To the extent there is direct and physical interaction with the site and adjacent structures, an important architectural consideration is where to put entries for loading, parking, and mechanical equipment. This is critical in terms of how a building interfaces with the neighborhood. Where there is ground floor continuity amongst abutters, such as retail space and service areas, considerations regarding landscaping and hardscaping can improve relationships amongst neighbors and allow construction to proceed smoothly. Another consideration involves street and area lighting. While lighting additions may be appealing to a client, it is important to communicate with the neighbors pre-construction and determine whether lighting will cause unwelcome impacts.

Where there is semi-direct engagement with adjacent structures, a design professional should consider how the design adds to the overall landscape. Ensuring that a design fits aesthetically into the area profile is key to mitigating neighbors’ concerns.

For sites with indirect interaction with urban, or suburban, landscape, important design considerations include a structure’s appearance from a distance, with emphasis on landmark scale, color, form, and light.

In addition to the foregoing, there are several other design considerations important from an architectural perspective including: (1) Massing; (2) External Envelope; (3) Building Tops; and (4) Sustainability.

Massing

Massing is used to describe how a building looks in terms of its basic mass. For example, a building’s massing could be identified by the change of materials from the building base to the upper portion. Each section is identified as a mass. Most developments’ massing is defined by zoning, but it is important for architects to consider in the design phase the impact external conditions, such as sun and shade, have on an adjacent building’s masses.

Exterior Envelope

The materials chosen by an architect can have aesthetic, safety, and environmental impacts on neighboring properties. Aesthetic considerations such as building style can impact a neighbor’s sense of place. Safety and environmental considerations, including quality of materials used, can impact the economic viability of an adjacent structure. For example, reflective glass can alter heating and cooling of an adjacent property. When designing a building, it was suggested that the designer ask what type of message the building intends to send and how that message may be received by the neighbors.

Building Tops

In deciding how to design the top of a building, considerations such as lighting and practicability are of the utmost importance. There has been a recent trend to create “night lighting” along building tops. While this may seem like a branding opportunity to owners, neighbors often consider this a waste of energy and light pollution. Additionally, housing mechanical equipment on building tops has generated new attention among owners and neighbors. While the design may seem practical, the impacts to abutting neighbors may outweigh the benefits. These impacts may include noise attenuation and additional louvers. There are also design considerations regarding continuity that an architect should consider. Designing a building with features similar to a neighboring building could result in design professional liability if such continuity causes decreased profits to the owner. These considerations must be managed against the risk of adverse external impacts and influences.

Sustainability

In creating sustainable designs, particular emphasis should be placed on a design’s rainwater retention capabilities and high-performance skins. The latter fulfills roles such as protecting a building from external elements, collecting solar energy, harvesting rainwater, and providing daylight to occupants with minimized glare. Other sustainability considerations include the use of energy efficient and energy recovery systems, solar shading and wind power.

To manage the foregoing issues, a design professional should seek information from the design and community review boards, other quasi-governmental agencies or neighborhood community groups. Neighbors take a great deal of interest in each other’s properties, and connecting with abutters and neighbors can significantly influence a project’s success. It is not uncommon for sophisticated neighbors to use their political and legal free speech to impact a project’s outcome. Therefore, the creation of open and trusting relationships with neighbors is critical to managing professional liability exposure.

Conclusion

The issues raised in this article are important to all design professionals, particularly at a time when infrastructure is a major pillar of the economy. In cities throughout the country, it seems like the only place to build is up. This brings with it a host of design considerations that may have external and potentially adverse impacts and influences on adjacent structures or property. Design professionals should take the lead in recognizing these potential issues and acquiring information necessary to articulate recommendations to clients concerning the availability of prudent, sensible and sound design features and tactics to mitigate impacts on adjacent structures. Such recommendations will increase the likelihood of a successful project while simultaneously limiting the risk of professional liability claims by clients and/or third parties.

Notes:
1. The authors would like to thank panel members Nathaniel B. Smith, PE, Benjamin M. Cornelius, PE, SE, and William Harris, AIA for their invaluable contributions to the Donovan Hatem roundtable and for much of the content in this article.

2. On December 7, 2017, Donovan Hatem will host a follow-up roundtable in which the issues and challenges raised in the introduction of this article will be addressed, as well as contractual and risk management recommendations.

[1] Panel members included: William D. Gillis, Jr., Esq., Partner, Donovan Hatem LLP; Nathaniel B. Smith, PE, Associate Principle, Simpson Gumpertz & Heger, Inc.; Benjamin M. Cornelius, PE, SE, Partner, Leslie E. Robertson Associates; and, William Harris, AIA, Science + Technology Co-Market Leader, Perkins + Will.



Construction Control Affidavits and the Importance of Defining Design Professional Scope of Work

By Bryan R. Wieland, Esq.

The Massachusetts Board of Building Regulations and Standards (BBRS) is responsible for the promulgation of the Massachusetts State Building Code (MSBC) which is comprised of two volumes (1) base, and (2) one- and two-family (residential). These regulations are based upon the International Model Codes (I-Codes), which are published by the International Code Council (ICC), as well as additional Massachusetts amendments to the I-Codes. Construction Control Affidavits (“Affidavits”) were developed to certify that registered design professional services are deemed to constitute the practice of architecture or engineering as defined in M.G.L. c. 112 §§60A or 81D, respectively,[1] and, further, to certify that all plans, computations, and specifications satisfy the applicable provisions of the code; any alternative methods that deviate from code requirements must be submitted to a building official for approval. It is important for all design professionals to check with state-specific building codes to ensure compliance.

The Affidavits are used as guidelines for registered design professionals in construction phase services to enable them to determine whether they comply with the state building codes. A registered design professional’s signature and seal on a project signifies that the plans, computations, and specifications meet the applicable provisions of the code and acceptable engineering or architectural practices. The Affidavits are prepared by the design professional prior to issuance of a building permit and are a prerequisite for issuance. Once they execute the Affidavits, the design professionals are then responsible to an owner or developer for construction control as the on-site project representatives.

Massachusetts has a state-based form with standard language to describe a broad range of scopes of work for which a design professional certifies it has “observed, and to the best of [its] knowledge, information and belief…the work has been performed in a manner consistent with the approved plans and specifications.” Although it may appear that the content of the Affidavit is easy to interpret, it can become problematic if there is more than one design professional and multiple disciplines on a particular project. The question then becomes which design professional is responsible for certifying and performing a particular scope of work. Because one design professional has executed an Affidavit for a project, does that Affidavit render that design professional liable for another design professional’s performance even though they were retained to perform different scopes of work? The answer is found in the specific language of an executed Affidavit.

In one case pending in Suffolk Superior Court in Boston, an engineer faced potential exposure under the Affidavit he executed because he was not the only structural engineer on the project, but he had inadvertently made a certification in the Affidavit as to all structural work on the project, even though his scope constituted only a portion of that work. The claim arose out of Affidavit phrase: “the use, design and installation of the equipment, and/or statements.” The operative contracts and contemporaneous project documents established that the engineer, who executed the Affidavit as the registered design professional for the project, did not owe a contractual duty or have any responsibility to perform any of the engineering, or provide any labor, materials or workmanship related to the design, manufacture, and installation of a particular system. Rather, another structural engineer had performed the applicable structural engineering and related services. The engineer who executed the Affidavit contracted only to perform services associated with the design of a foundation and, later, evaluation of the roof support for the structure. Moreover, there was no allegation that the foundation or roof support system contributed in any way to the underlying incident.

Nonetheless, the engineer created a potential issue for himself by executing an Affidavit that certified he was “a registered engineer who has prepared or directly supervised the preparation of all design plans, computations and specifics (checking off the box that related to structural engineering).” His act in signing an Affidavit that broadly states the scope of the project without specifically defining his specific responsibilities left the engineer exposed once litigation was initiated. Plaintiffs took advantage of that and alleged that, by its terms, that Affidavit demonstrated the engineer’s certification that all structural work performed on the project was code compliant.

Similarly, in a recent case before the U.S. District Court for the District of Massachusetts, the court denied a design professional’s motion for summary judgment on the grounds that a duty of care to third parties arose by virtue of an Affidavit.[2] In denying the summary judgment motion, the court held that a reasonable jury could find that (1) the design professional negligently performed its responsibilities under the Affidavit; (2) the danger created was foreseeable; and (3) plaintiff’s alleged injury resulted from the design professional’s negligence.[3] This opinion likely derived from plaintiff’s opposition to the design professional’s summary judgment motion in which it argued, in large part, that issues of material fact remain as to whether the design professional breached its duty of care by failing to perform the responsibilities listed in the Affidavit. Although the design professional was not released on summary judgment, this case ultimately proceeded to trial and, in June 2016, a jury rendered a defense verdict in favor of the design professional.

Conclusion

Design professionals should be mindful of the importance of a Construction Control Affidavit and the content which, if not accurate, can create an independent duty to inspect construction or report the status of construction, even if such tasks are beyond the design professional’s contractual scope of work. Under §107.6.2.2 of the Massachusetts State Building Code regarding Construction Control, registered design professionals who are responsible for design, plans, calculations, and specifications shall perform the (1) review for conformance with code; (2) duties for registered design professionals; and (3) be present at intervals appropriate to the stage of construction to become familiar with progress and quality of work and to determine if the work is consistent with code. Any distinctions are project-specific and in drafting the Affidavits, design professionals should make sure that the work discipline is clear and that the Affidavit contains only the scope performed by the professional executing the Affidavit. This can be accomplished by either delineating the scope in the “Description of Construction Work Observed” section of the Affidavit or by drafting the Affidavit on the design professional’s letterhead and expressly identifying the project-specific responsibilities. Had such limiting language been incorporated in the examples identified above, the allegations of breach of contract may have been resolved through summary judgment.

[1] Except as provided in M.G.L. c. 143, §54A.
[2] Hayes v. Foxborough, 167 F. Supp. 3d 229, 246 (D. Mass. 2016).
[3] Id.



Recent Case Highlights Important Business Lesson

By Brian C. Newberry, Esq.

Donovan Hatem recently obtained a ruling from the Massachusetts Appeals Court upholding a decision of the Superior Court granting summary judgment on behalf of a surveyor with respect to a three-count complaint alleging breach of fiduciary duty, fraud, and negligence. While the underlying legal precepts and facts were not remarkable, there is a lesson to be learned for professionals. Specifically, the underlying case involved a professional that was retained by a landowner to perform survey services. The landowner, upon seeing the completed survey, rejected the conclusions because they were not consistent with the landowner’s preordained belief as to where the property boundary actually lay. The landowner effectively fired the surveyor and refused to pay the entire amount of the bill.

Had the matter ended here, the issue could have been laid to rest. However, more than a year later, the landowner trespassed upon and destroyed some of the property of the adjoining landowner that lay within the disputed parcel of land and a lawsuit between the two ensued. The neighbor retained the surveyor as an expert witness in the underlying litigation. Following the conclusion of the lawsuit through settlement a few years later, the original landowner then sued the surveyor alleging a conflict of interest because of the surveyor’s actions in connection with her role as an expert witness for the adjoining landowner.

The case proceeded through full factual discovery before the Superior Court granted the surveyor’s motion for summary judgment, a decision later upheld by the Appeals Court. While the case was ultimately frivolous, it could have been avoided had the surveyor not become involved in the dispute between the landowners. The lesson here is not a legal one, but a business one. Whatever our professions, we will at some point run into difficult clients. We must all carefully consider the client and the circumstances, and then determine whether it is in the professional’s best interest to walk away from a potentially perilous situation.



Massachusetts Appeals Court Affirms Dismissal of Complaint Against Design Professionals Based Upon the Three-Year Statute of Limitations

By Patricia B. Gary, Esq.

In Diaz v. Ulen, 91 Mass. App. Ct. 1108, 2017 WL 965, 2017 Mass. App. Unpub. Lexis 204 (2017), a panel of the Massachusetts Appeals Court (Meade, Henry & Lemire, J.J.) upheld the Superior Court’s dismissal of a complaint for malpractice against an architect, a structural engineer and an engineering firm (“Design Professionals”) based upon the three-year statute of limitations under M.G.L. c. 260, §2A. Donovan Hatem attorneys, Paul T. Muniz and Patricia B. Gary, represented the Design Professionals and argued the appeal before the Appeals Court.

In 2013, the plaintiff filed suit in Norfolk Superior Court against fourteen defendants alleging that Unit 2, the condominium unit in Brookline, Massachusetts which the plaintiff owns and resides in, was damaged by renovation work to the bathroom of Unit 4, the condominium unit directly above the plaintiff’s unit. The plaintiff also sued the current and past owners of the units above hers, various current and former trustees of the Condominium Trust, the Condominium Trust itself, and the contractor that performed the construction work. The plaintiff’s 169-paragraph, 63-page Amended Verified Complaint (“Complaint”) asserted three causes of action for negligence, nuisance, and trespassing.

The condominium defendants purchased Unit 4 in April 2010. Prior to their purchase, the condominium trustees had approved their proposal to renovate the unit’s bathroom. In May 2010, however, the plaintiff began objecting to the condominium defendants’ renovation plans and attempted unsuccessfully to stop the project. On May 3, 2010, the plaintiff sent a letter to the Condominium Trust formally objecting to the “structural modifications and the enlargement of the bathroom in Unit 4.” The plaintiff followed her May 3, 2012 letter by meeting with the Town’s Building Commissioner on May 6, 2010 and “detailing her objections to the structural modifications, and to the enlargement of the bathroom in Unit 4, above her bathroom and bedroom ceilings.” The next day, May 7, the Plaintiff sent a three-page letter to the Town Building Commissioner, as well as to the Condominium Trust, noting that the construction was underway, and had already resulted in a crack in her dining room ceiling. The letter described the damage as a “hairline fracture in the dining room ceiling (which did not exist before) that extends from one end of the wall to the other, running against the existing ceiling joists.”

In her Complaint, the plaintiff alleged that her unit continued to experience adverse effects from the construction, including more cracks in her ceiling and increases in noise and vibrations. The complaint alleged that the architect “generated the design plans and drawings for the alterations and enlargement of the bathroom in Unit 4” and that the structural engineers “prepared the structural engineering plans for the structural alterations and the enlargement of the bathroom.” The plaintiff attached a copy of her May 7, 2010 letter to the Building Commissioner to her Complaint.

All defendants filed motions to dismiss the plaintiff’s Complaint under Mass. R. Civ. P. 12(b)(6) for failure to state a cause of action. Following a hearing, the Superior Court (Connors, J.) granted all defense motions and dismissed the Complaint as time-barred. The Superior Court found that the plaintiff’s own Complaint – which included the May 7, 2010 letter – demonstrated that she was aware of the harm more than three years before she filed her Complaint on June 14, 2013. The plaintiff appealed, arguing that the statute of limitations did not apply because the May 7, 2010 letter was concerned only with demolition work, and not the subsequent construction work which created additional cracks in her unit in 2011. The plaintiff argued that there was a legal distinction between the first cracks, which were the result of “demolition” work in Unit 4, and the latter cracks which resulted from “new construction” work in Unit 4.

The Appeals Court disagreed that the alleged appearance of more cracks in 2011 somehow tolled the statute of limitations. The Appeals Court noted:

[The plaintiff] included the [May 7, 2010] letter with her complaint and referenced it therein. The letter indicates that she believed the construction was causing harm to her unit. A plaintiff need not know the full extent of the injury in order for the injury to have accrued.[1]

In ruling that the plaintiff’s claims were time-barred, the Appeals Court adhered to long-standing Massachusetts precedent which holds that “[t]he discovery rule starts a limitations period running ‘when a reasonably prudent person (in the tort claimant’s position), reacting to any suspicious circumstances of which he might have been aware . . . should have discovered that he had been harmed by the defendant.’”[2] “[A] cause of action accrues on the happening of an event likely to put the plaintiff on notice.”[3]

Thus, there was no merit to the plaintiff’s contention that the statute of limitations was somehow reset by the appearance of new cracks in 2011. In Insituform Tech., Inc. v. Jacobs Civil, Inc., the Appeals Court clarified, “[i]n order for the statute of limitations period to reset, the plaintiff must suffer an injury ‘fundamentally different’ from the original one.’”[4] Since the plaintiff’s letter clearly demonstrated that she knew of the alleged cause of action more than three years prior to the filing of her Complaint, the Appeals Court correctly affirmed the Superior Court’s Decision that her claims were time-barred. The plaintiff filed an Application for further appellate review[5] with the Supreme Judicial Court (“SJC”), but the SJC denied further appellate review. Therefore, the Appeals Court’s decision stands.

[1] See Diaz v. Ulen, supra.
[2] Hanson Housing Auth. v. Dryvit Sys., Inc., 29 Mass. App. Ct. 440, 447 (1990) (emphasis in original).
[3] White v. Peabody Constr. Co., Inc., 386 Mass. 121, 123 (1982) (quoting Hendrickson v. Sears, 365 Mass. 83, 89-90 (1974)).
[4] Insituform Tech., Inc. v. Jacobs Civil, Inc., 84 Mass. App. Ct. 1115, 2013 Mass. App. Unpub. Lexis 986, *4 (2013).
[5] See Diaz v. Ulen, 477 Mass. 1103, 2017 Mass. Lexis 306 (2017).



Divergent Outcomes in Massachusetts Cases Demonstrate the Effect of a Comprehensive Bar Against Damages in a Subcontract

By Jennifer A. Lincoln, Esq.

Two cases recently decided in Massachusetts make evident the profound effect a well-written prohibition against subcontractor’s damages may have in determining a claim result. The different rulings in Central Ceilings, Inc. v. Suffolk Construction Company, Inc., et al[1] and Turner Construction Company v. MJ Flaherty Company[2] will likely convince some general contractors to put more thought into their subcontracts to explicitly prevent subcontractors from seeking damages for any losses which may be incurred while performing their project services. An effective bar against any entitlement to damages may prevent a Massachusetts court from awarding damages to a subcontractor even if the subcontractor incurred damages due to a delay caused by the poor management of its general contractor client.

There has been much discussion recently about Central Ceilings, in which the court allowed the subcontractor (“Subcontractor”) to obtain judgment for additional labor cost incurred when Subcontractor was delayed due to the failure of the general contractor (“Contractor”) to manage the project efficiently, in spite of the fact that the subcontract contained a “no-damages-for-delay” clause.[3] This clause was reiterated by the court:

Article 6: The Subcontractor agrees that it shall have no claim for money damages or additional compensation for delay no matter how caused, but for any delay or increase in the time required for performance of this Subcontract not due to the fault of the Subcontractor, the Subcontractor shall be entitled only to an extension of time for performance of its Work. Written notice of all claims for any extension of time shall be submitted to Contractor within ten (10) days of the date when Subcontractor knows (or should know) of the event which causes such delay, or such claim shall be considered waived by Subcontractor.[4]

Such a clause, it was confirmed on appeal, is generally enforceable in Massachusetts.[5] Furthermore, the parties did not dispute the language of the clause, agreeing instead that it was unambiguous.[6] However, Subcontractor argued that the damages sought were not for delay,[7] but for “hindrances and interferences.”[8] As such, the clause should not bar Subcontractor for seeking compensation for the damages caused.

The trial court found that the Contractor had failed to adequately coordinate the work of specialists, forcing Subcontractor to demobilize and remobilize, work on the site while other specialists performed services, and remove and re-install completed work.[9] Furthermore, there was a clause in the subcontract stating: “…but for any delay or increase in the time required for performance of this Subcontract not due to the fault of [Subcontractor], [Subcontractor] shall be entitled only to an extension of time for performance…”[10]

The Central Ceilings Court additionally held that Contractor deprived Subcontractor of its contractually-mandated remedy, an increase in the time required to perform services, when Contractor denied Subcontractor an extension of time. The contractor, itself, was thereby in breach of contract.[11] The subcontractor should have been entitled to this extension as Contractor caused the delay. This, in turn, yielded further damages as Subcontractor had to immediately complete its services within the time provided.
The Central Ceilings Court ultimately held:

(1) the Subcontractor did not cause the delay, therefore the clause in the subcontract barring damages for delay did not apply in this situation. The damages sought were properly “acceleration damages,” and “loss of productivity” damages that were caused by hindrances due to Contractor’s poor management of project, rather than any negligent act of Subcontractor; and

(2) even if the clause did apply, the court held that the clause should be void because Contractor rejected Subcontractor’s claims for extensions of time which left Subcontractor with no means of recourse for delay caused by Contractor and it had to further compress and accelerate services, causing an increase in damages for which recovery was now sought.

This holding was upheld on appeal, thereby solidifying the importance of Central Ceilings in Massachusetts construction law.

After Central Ceilings, one might assume that contract provisions prohibiting damage claims hold little influence compared to Contractor’s overarching responsibility to manage a project efficiently, or at least grant extension of time requests to avoid claims for Subcontractor’s losses sustained due to Contractor’s poor project management.

However, whether a general contractor will be held liable to a subcontractor depends upon its contract terms. This was evident in Turner Construction Company v. MJ Flaherty Company (“Turner”). In Turner, Subcontractor was denied consequential damages for damage to its business because the subcontract contained a clause barring consequential damages which was ultimately enforced.

The trial court in Turner granted Contractor’s summary judgment motion against Subcontractor’s counterclaim in which it had asserted Contractor owed damages for adverse impact to Subcontractor’s business which “resulted in a $6.4 million reduction” in Subcontractor’s worth. This claim, the court found, was “a paradigm claim for consequential damages.”[12]

Like Central Ceilings, Turner involved a subcontractor’s claim against a general contractor for costs incurred due to contractor’s failure to efficiently manage the project. Unlike Central Ceilings, however, the Turner subcontractor had assented to the following clause that explicitly barred claims for a wide variety of damages:

Notwithstanding [any] term or provision herein to the contrary, Subcontractor expressly waives and releases all claims or rights to recover lost profit (except for profit on work actually performed), recovery of overhead (including home office overhead) and any other indirect damages, costs or expenses in any way arising out of or related to the Agreement, including the breach thereof by Contractor, delays, charges, acceleration, loss of efficiency or productivity disruptions and interference with the performance of the work.[13]

Based on the foregoing, the Turner subcontractor had a much higher bar than the subcontractor in Central Ceilings. Whereas the Central Ceilings subcontractor was barred from seeking damages for delay, though admittedly with the caveat of “no matter how [the delay was] caused,” the Turner subcontractor was barred from seeking all “expenses in any way arising out of or related to the Agreement.” Interestingly, the clause also barred damages caused by contractor’s breach, delay, acceleration, loss of productivity and interference with the work.

Subcontractor’s counsel failed to challenge that his client’s reduction in net worth was a consequential damage. Instead, counsel argued that, rather than this clause not applying, the entire contract should be set aside because the numerous changes to the contract agreement had resulted in mutual abandonment under the “Cardinal Change doctrine.”[14] Unfortunately for the subcontractor’s counsel, the Cardinal Change argument red-flagged its client’s serious issues with the existing contract. According to the plain language of the contract, the contractor could not be held liable for the reasons listed in Central Ceilings, including breach of its duty to efficiently manage a contract.

Although the subcontractor’s counsel was unable to identify Massachusetts case law that even referred to the Cardinal Change doctrine and, instead, offered out-of-state cases, the trial court found this irrelevant because Cardinal Change and Abandonment are used to support claims for equitable relief, and did not negate contractual conditions such as a bar against consequential damages.[15] In dicta, the court was quick to state that Massachusetts law upholds clauses limiting rights to recover consequential damages as public policy to avoid lengthy litigation.[16]

It seems the Turner subcontractor was out of luck from the start. Because the court applied the plain language of the contract, even if the subcontractor had asserted a quantum meruit claim based on loss of productivity, it is unlikely the court would have been more responsive to its cause. The contract language expressly barred the subcontractor’s recovery, regardless of whether the contractor’s actions constituted breach, delay or loss of productivity.

Following Central Ceilings and Turner, it appears that a Massachusetts Superior Court will award damages to a subcontractor which is delayed due to the contractor’s poor management of a project when the terms of the parties’ subcontract permit such a result. In neither Central Ceilings nor Turner was the clause in question set aside, though the court in Central Ceilings said this may be possible if a subcontractor is left without remedy, or the contract is rendered void. The different outcomes speak volumes of the power of a well-written contract, and the willingness of the court to hand out opposing outcomes for similarly-situated plaintiffs due to the divergent language of their contracts.

[1] Central Ceilings, Inc. v. Suffolk Construction Company, Inc., et al, 2013 WL 8721044, (and on Appeal at 91 Mass App. Ct. 231 (2017).
[2] Turner Construction Company v. MJ Flaherty Company, (Lawyers Weekly No. 12-028-17) (9 pages) (Kaplan, J.) (Suffolk Superior Court) (Civil Action No. 13-2308) (March 7, 2017).
[3] Central Ceilings, Inc., 91 Mass. App. Ct. 231, 1.
[4] Central Ceilings, Inc., 2013 WL 8721044, 2.
[5] Central Ceilings, Inc., 91 Mass. App. Ct. 231, 3.
[6] Central Ceilings, Inc., 2013 WL 8721044, 8.
[7] Id., 7
[8] Id., 10.
[9] Id., 4-5.
[10] Id., 8.
[11] Central Ceilings, Inc., 2013 WL 8721044, 2.
[12] Turner Construction Company v. MJ Flaherty Company (Lawyers Weekly No. 12-028-17) (9 pages) (Kaplan, J.) (Suffolk Superior Court) (Civil Action No. 13-2308) (March 7, 2017), 2.
[13] Id., 3.
[14] Ibid.
[15] Id., 6.
[16] Id., 7.