The Design & Construction Management Professional Reporter: April 2018

Inside this Issue:

Colorado Court of Appeals Rules On Implementation Of Settlement Setoff
By: Joseph M. Gesker

Federal District Court Dismisses Cross-Summary Judgment Motions in Copyright Action
By: Z. Michael Gu

Massachusetts Appeals Court Reverses Dismissal of Complaint Under Anti-Slapp Statute

Penzel: Missouri Court of Appeals Applies Spearin and Modified Total Cost Damages in Two Instances of First Impression
By: Jennifer A. Lincoln

Recent Case Highlight: Third Party Claims
By: Brian C. Newberry

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Colorado Court of Appeals Rules On Implementation Of Settlement Setoff
By: Joseph M. Gesker

A May 2017 ruling by the Colorado Court of Appeals in Taylor Morrison of Colo., Inc. v. Terracon Consultants, Inc. demonstrates that a settlement setoff might not further reduce a judgment after a contractual liability cap is applied. In that case, a residential devel oper retained an engineer to provide geotechnical engineering and construction materials testing services for a subdivision development project. The parties’ contract contained a broad limitation of liability provision which capped the engineer’s total aggregate liability at the greater of $550,000 or the engineer’s fee “for any and all … damages … arising out of [engineer’s] services or this agreement.” Read More.


Federal District Court Dismisses Cross-Summary Judgment Motions in Copyright Action
By: Z. Michael Gu

On July 28, 2017, the United States District Court for the Western District of North Carolina denied the defendant’s motion for summary judgement and the plaintiff’s motion for partial summary judgement in Sedgewick Homes, LLC v. Stillwater, Inc., 2017 WL 3221488 (W.D. NC 2017). This proceeding stemmed from a federal copyright infringement claim under 17 U.S.C. § 501 where the plaintiff (“Sedgeick”) claimed that the defendant (“Stillwater”) infringed their design drawings in two different residential design-build projects. Read More


Massachusetts Appeals Court Reverses Dismissal of Complaint Under Anti-Slapp Statute

In Van Liew v. Kurland, 2017 Mass. App. Unpub. LEXIS 454 (Mass. App. Ct., May 4, 2017), a panel of the Massachusetts Appeals Court (Trainor, Blake, Shin, J.J.) reversed the Superior Court’s dismissal of a complaint under the Massachusetts Anti-SLAPP statute, M.G.L. c. 231, §59H, which alleged that the defendant, a town selectman, interfered with the plaintiff’s right to solicit signatures in support of ballot access as guaranteed by article 9 of the Massachusetts Declaration of Rights. Donovan Hatem attorneys, Patricia B. Gary and Brian C. Newberry represented the plaintiff. Read More


Penzel: Missouri Court of Appeals Applies Spearin and Modified Total Cost Damages in Two Instances of First Impression
By: Jennifer A. Lincoln

It does not take long for the Spearin Doctrine (“Spearin“) to rear its head in construction practice. Attorneys involved with construction or professional design practice quickly become familiar with Spearin, and the doctrine of implied warranty. Most contracts, or professional design or consulting agreements within construction projects, contain some echo from Spearin, whether it be a fit for purpose warranty or an avoidance clause which expressly disclaims an owner’s responsibility for the accuracy or completeness of owner-supplied information. Spearinhas not been examined in all jurisdictions, but Missouri recently had the opportunity to do so. On April 10, 2017, the Missouri Court of Appeals reversed a ruling for a school district defendant, against a general contractor plaintiff, and applied SpearinRead More.


Recent Case Highlight: Third-Party Claims
By: Brian C. Newberry

DH recently obtained a defense verdict in Rhode Island Superior Court on behalf of an architect in a contribution action tried to a jury. In an unusual twist, the underlying suit brought by the plaintiff was settled and only the third party claims were left for trial. Read More.