The Design and Construction Management Professional Reporter: July/August 2011

Inside this issue:

Fourth Circuit Court of Appeals Upholds Preclusion of Owner’s Indemnification and Contribution Claims Against Architect Under the Fair Housing Act and the Americans with Disabilities Act

By Peter C. Lenart, Esq.

The United States Court of Appeals for the Third Circuit Enforces a Waiver of Consequential Damages Provision and Holds that a Contractual Indemnity Provision Applies Only to Third-Party Disputes

By Rita C. Mercado, Esq.

Texas Supreme Court Holds That Parties Are Permitted to Agree to Expand Judicial Review of Arbitrator’s Decision

By Meredith L. Murphy, Esq.

New Hampshire Court Finds Plaintiff’s Claims Barred by the Statutes of Limitations and Repose and Dismisses All Claims Against Architect

By Jacqueline J. Rompre, Esq.

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The Design and Construction Management Professional Reporter: March/April 2011

Inside this issue:

Recent CA Jury Verdict May Heighten Duty for Design Professionals

By Carrie G. Strasser, Esq.

Comparative Analysis of Architect’s Duty to Guard against Construction Defects which Threaten Public Safety

By Kristina S. Raevska, Esq.

Wyoming Court Adheres to the Economic Loss Doctrine to Bar Negligent Misrepresentation Claims

By Luke R. Conrad, Esq.

Florida Courts Bars Limitation of Liability Provisions in Professional Negligence Cases against Individual Professionals

By Kristen R. Ragosta, Esq.

United States Court of Appeals for the Ninth Circuit Recognizes Exception to Economic Loss Doctrine in Washington State

By Daniel C. Poteet, Esq.

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Design & Construction Management Professional Reporter: September/October 2010

Inside this issue:

Green and Sustainable Design: Part 2: Contractual and Risk Management Recommendations for Design Professionals to Manage Risk and Maximize the Availability of Professional Liability Insurance

By Sue E. Yoakum, AIA, Esq., Donna M. Hunt, Lexington Insurance Company, and Valerie P. Onderaka, Risk Specialists Companies Insurance Agency, Inc.

Significant Change in Colorado Law Impacts Traditional Coverage interpretation of Commercial General Liability Insurance Policies

By Peter C. Lenart, Esq.

Colorado Court of Appeals Recognizes Economic Loss Rule as Defense to Contractor’s Fraud Claims Against Engineer

By Daniel C. Poteet, Esq.

Hawaii Appellate Court Confirms Construction Defect Claim Does Not Constitute an Occurrence Under a Commercial General Liability Policy

By Amanda Sirk, Esq.

Economic Loss Rule: A Variable Defense in Colorado for Design Professionals

By Marisa Skoglind, Esq.

Colorado Court Bars Limitation of Liability Provisions for Design Professionals

By Justin Jagher, Esq.

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The Design and Construction Management Professional Reporter: June 2010

Inside this issue:

Green and Sustainable Design: Part 1: Professional Liability Risk and Insurability Issues for Design Professionals

By David J. Hatem, PC

New Rhode Island Legislation Proposes to Alter Retention Process for A/E Firms on Public Projects

By Brian C. Newberry, Esq.

Indemnification — A Contractual Sword and Shield: Tips on How to Enter Into Contracts Which Leave Design Professionals Well Armed and Well Protected

By Peter C. Lenart, Esq.

Illinois Court Expands Engineer’s Duty of Care Beyond the Terms of the Applicable Contract

By Lynn M. Squillace, Esq.

The Economic Loss Doctrine Bars an Owner from Asserting Negligence Claims Against a Design Professional with Whom the Owner is in Privity of Contract

By Kristina S. Raevska, Esq.

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The Design and Construction Management Professional Reporter: February 2010

Inside this issue:

Project-Specific Insurance Advisory: Recent Problematic Trends in Project-Specific Professional Liability Insurance Programs

By David J. Hatem, PC

Recent New York Office Summary Judgment Victories

California Supreme Court and New Mexico Court of Appeals Strictly Interpret the Defense Obligation Routinely Found in Indemnity Provisions

By Michelle R. Epstein, Esq.

Mississippi Court Affirms Decision in Favor of Architect Whose Design Did Not Meet OSHA Regulations

By Rita C. Mercado, Esq.

Florida Court of Appeals Further Restricts Applicability of Limitation of Liability Provisions in Professional Services Contracts

By Peter C. Lenart, Esq.

Substantive Differences Between New Jersey and New York Regarding Arbitrators’ Interpretation of the Issues to be Resolved

Hawaii Court Finds No Duty of Care to Seller

By Sa’adiyah Masoud, Esq.

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The Design and Construction Management Professional Reporter: October 2009

Inside this Issue

Analysis of Best Practices in the Management of Design Errors and Omissions

By Justin M. Jagher, Esq.

Recent Court Interpretations of the Economic Loss Doctrine

By Marc A. Cohen, Esq.

Design Professionals Dismissed from Two New Hampshire Lawsuits

By John W. Dennehy, Esq.

Georgia Court Upholds the Validity of an Owner-Design Professional Contractual Liability Limitation Provision

By Kristina S. Raevska, Esq.

The Alabama Supreme Court Affirms General Contractor’s Recovery from Testing Engineer

By Samuel R. Pierce, Esq.

Megaproject Issues and Challenges: Some Informal Remarks

By David J. Hatem, PC

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The Design and Construction Management Professional Reporter: June 2009

Inside this Issue

Indiana Appeals Court Holds Economic Loss Doctrine Bars Negligence Claims Against Professional

By John W. Dennehy, Esq.

Colorado Court of Appeals Recently Interpreted the Economic Loss Rule as Barring a Fraud Claim

By Sa’adiyah Masoud, Esq.

Acting Beyond the Scope of One’s Contract May Confer Liability for Project Safety

By Michelle L. Moshe, Esq.

Claims of Professional Negligence Must Be Asserted in a Timely Manner and Be Supported by Expert Testimony

By Jordan S. Rattray, Esq.

Changes to the AIA Agreements Regarding Statute of Limitations

By Justin M. Jagher, Esq.

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The Design and Construction Management Professional Reporter: March 2009

Inside this Issue

Federal Government Tightens Integrity Reporting Requirements for Federal Contractors

By Douglas M. Marrano, Esq.

Limitation of Liability Provisions in Arizona: Enforceable and Distinguishable from Indemnity Provisions and the Assumption of Risk Defense

By Marisa M. Skoglind, Esq.

An Expert Cannot Rely on an Engineer’s Code of Ethics in Establishing Standard of Care in North Carolina

By Sa’adiyah Masoud, Esq.

Texas Case Reviews Power of Discovery Rule

By Samuel R. Pierce, Esq.

Minimizing Risks Associated with Construction Cost Estimates

By David M. Ponte, P.E.

E-Verify is Alive, Well and Gaining Speed

By Gwen P. Weisberg, Esq.

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The Design and Construction Management Professional Reporter: September 2008

Inside this Issue

Infrastructure Inspection Engagements: Opportunities and Perils

By David H. Corkum, Esq.

Reaffirming the Economic Loss Doctrine in Massachusetts

By Justin M. Jagher, Esq.

Action Against Architect Dismissed— Plaintiffs Failed to Comply with Statutory Prerequisite

Limitation of Liability Clauses are Still Viable in North Carolina

Caution Advised for Parties Relying Upon a Contract’s “Flow-Down” Provision to Procure Indemnity from a Subcontractor
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The Design and Construction Management Professional Reporter: April 2008

Inside this Issue

New York Court Imposes Duty on Design Professional to Third-Party Owner in Light of Certifications to City Building Department

By Douglas M. Marrano, Esq.

Arizona Court of Appeals Upholds a Limitation of Liability Clause, but Rules that a Jury Must Decide the Enforceability of the Clause

By Daniel C. Poteet, Esq.

Nebraska Federal Court Denies Summary Judgment for Architect on Professional Negligence Claim

By Douglas M. Marrano, Esq.

Surety is not Responsible for its Principal’s Punitive Damages

By Sa’adiyah Masoud, Esq.

Public-Private Partnerships: Opportunities and Risks for Engineers and Constructors Involved in Subsurface Projects

By David J. Hatem, PC

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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.

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

By Eric Howard, Esq.

Mississippi Appeals Court Rejects Exculpatory Clause Argument

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

By Peter C. Lenart, Esq.

Texas Case Reviews Power of the Discovery Rule

By Samuel R. Pierce, Esq.

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

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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.

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

By Amanda Y. Sirk, Esq.

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

By Leslie P. King, Esq.

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

By David H. Corkum, Esq.

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

By Damian R. LaPlaca, Esq.

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The Design and Construction Management Professional Reporter: July 2007

Inside this Issue

New Hampshire Supreme Court Rejects Plaintiff’s Argument To Apply Both The “Special Relationship” And Negligent Misrepresentation Exception To The Economic Loss Doctrine

Limitation Of Liability Provisions May Not Be Used To Determine Good Faith Settlement Motions

New Mexico Court Rules That Excess Insurance Carrier Must Defend A Design Professional Even Though The Primary Insurer’s Policy Limits Had Not Yet Been Reached

Federal Claims Court Rules That Architect’s Imperfect Plans Did Not Breach Duty or Contract

Federal Claims Court Ruling Suggests That A Plaintiff’s Claims For Breach Of Contract Specifications And Differing Site Conditions May Be Combined

By Melissa S. Lee, Esq.

Immigration Impact On Employment Practices

By Gwen P. Weisberg, Esq.

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The Design and Construction Management Professional Reporter: April 2007

Inside this Issue

Adjudication Of Contractor’s Defective Specification Claim “Collapses” Into Its Parallel Differing Site Condition Claim

By David H. Corkum, Esq.

Court Of Appeals Rules Engineer Entitled To Award Of Attorneys’ Fees In Unsuccessful Suit By Contractor

Engineer May Have A Duty To A Surety, Despite An Exculpatory Clause Stating Otherwise

By Jordan S. Rattray, Esq.

Georgia Federal Court Grants Summary Judgment For Architect On Breach Of Contract And Negligence Claims

Armed Services Board Of Contract Appeals Substantially Rejects Contractor’s Multi-Million Dollar Claim For Damages
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The Design and Construction Management Professional Reporter: August 2006

Inside this Issue

Structural Engineer Not Liable For Injuries Caused By A Dangerous Construction Technique Where Contract Provisions Disclaim Liability And The Design Did Not Require Means And Methods Of Construction

By Daniel C. Poteet, Esq.

Ohio Appellate Court Distinguishes Spearin Doctrine And Reverses Award Of Delay Damages To Lead Contractor

Tolling Of The Statute Of Limitations For Professional Malpractice Actions In New York: The Continuous Representation Doctrine

Design Specifi cations Are A Matter Of Professional Judgment And Do Not Trigger An Action In Negligent Misrepresentation

By Douglas M. Marrano, Esq.

Court Of Appeals Of Georgia Re-Affirms The Viability Of The Negligent Misrepresentation Exception To The Economic Loss Rule
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The Design and Construction Management Professional Reporter: April 2006

Inside this Issue

Statutes of Repose in the Medical Malpractice Context Cannot Be Tolled Absent Specific Statutory Language Detailing an Exception, But Does the Same Rule Apply to Mass. Gen. Laws, ch. 260 § 2B?

Illinois Court Applies the Economic Loss Doctrine and Dismisses Claim by Homeowner Agreement

By Michelle R. Epstein, Esq.

Supreme Court of New Hampshire Upholds Statute of Repose

Architect Not Liable for Defects When No Evidence of Causation Exists

Subcontractor’s Professional Negligence Claim Against Design Professional Barred by Economic Loss Rule Where Contractor Has a Contractual Remedy for the Type of Harm Alleged
Read More

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.

Massachusetts Court Upholds No Damages for Delay Clause in Municipal Contract

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

California Appeals Court Sets Aside Arbitration Award Due to Untimely Claim

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

Appellate Courts in Illinois and Minnesota Address Expert Testimony

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

By Douglas M. Marrano, Esq.

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The Design and Construction Management Professional Reporter: July 2005

Inside this Issue

Donovan Hatem LLP Earns Summary Judgment in Defense of Architect Accused of Fraud

Engineer Avoids $6 Million Property Damage Claim on the Grounds that it Did Not Owe a Duty of Care to the Owner or the General Contractor

Partial Summary Judgment Granted to Engineer Affirming Application of Contractual Limitation of Liability Clause and Dismissing Extraneous Warranty and Contract Claims

Court Finds No Duty to Follow Owner- Recommended Designs for Over- Excavation

Supreme Court of New Jersey Affirms that Affidavit of Merit is not Required in Architect’s Third-Party Complaint Against Engineer

New York Court of Appeals Limits Purported Contract Claim to Shorter Malpractice Statute of Limitations

By Brian C. Newberry, Esq.

Architect Cannot Be Held Liable Under Minnesota Competitive Bidding Statute

Massachusetts Appeals Court Holds that Statute Permitting Reimbursement Under Underground Storage Tank Cleanup Fund Does Not Bar Claims Against Licensed Site Professionals
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The Design and Construction Management Professional Reporter: March 2005

Inside this Issue

Geotechnical Engineer is Found Liable Under Product Liability Theory

Design Builder May Not Ignore Essential Design Features Contained in Owner’s Design Requirements

Massachusetts Superior Court Enforces Contractor’s Covenant Not to Sue Architect in Public Bid Contract

Tort Claims Precluded by Economic Loss Rule Despite Duties Established in Interrelated Contracts

Illinois Court Holds that Contract Language Insulates Defendant form Liability in Action for Professional Negligence

Michigan Court Interprets Statute Establishing Time Periods to Bring Suits Against Architects as Both Statute of Limitations and Statute of Repose

Court Finds that Contractor Who Properly Follows Plans and Specifications is Not Liable for Injuries

Pennsylvania Restricts Economic Loss Rule as a Defense to Contractor Claim Against Architects
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The Design and Construction Management Professional Reporter: November 2004

Inside this Issue

Construction Reform Legislation: How Chapter 193 of the Acts of 2004 Impacts Design and Construction Management Professionals

By David J. Hatem, PC

Court Finds Proper Impleading of Architect by General Contractor

Court Holds that Use of Fictitious Party Practice and Relation Back in Actions for Statute of Repose was Inapplicable

State Court in Idaho Rules that Breach of Contract Action Against Engineer is Governed by Malpractice Statute of Limitations

Owner’s Architect has No Duty to Identify Contractor’s Design Errors
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