The California Legislature recently passed Senate Bill 496 which significantly modifies California Civil Code section 2782.8 (“Code”). The Code, as modified January 1, 2011, provided that any design professionals entering into a public contract or contract amendment had a duty to defend a public agency under an indemnity agreement and pay the public agency’s costs of defense associated with the design professional’s negligence, recklessness or willful misconduct; there was no limitation on the payment of the costs of defense. The Code provided further that all contracts and all solicitation documents between a public agency and design professional were “deemed” to incorporate those indemnity and defense requirements by reference.Read More
In the April 2016 edition of the Design & Construction Management Professional Reporter, Donovan Hatem LLP reported that the Court of Special Appeals of Maryland, Maryland’s intermediate appellate court, issued a ruling that, in the absence of a contractual relationship on a public construction project, a design professional does not owe a duty of care to a contractor for purely economic losses. The Court declined to apply a “privity equivalent” analysis or impose an extra-contractual duty on the design professional since, as is the case with design-bid-build contracts, both the design professional and the general contractor were sophisticated businesses which had ample opportunity to define and allocate their risks in their contracts with the government owner.Read More
The need for design professionals to take climate change, sustainability, and resiliency (“CCSR”) into consideration in project design is growing. Of equal importance is the aspirational goal of educating owners to adopt CCSR objectives in project programs. These objectives need to be achieved in a process that adequately accounts for the management of design professional risks.
Roles in the Design Development Process
Design professionals, through their professional skill, acumen, and experience, provide services (including design) to their clients (typically private and public owners, and sometimes contractors and others) in making recommendations as to how to design a project that will achieve the programmatic objectives of their clients. Those recommendations typically emerge from studies that the design professional provides to its client. The scope and quality of those options and recommendations derive from the scope of services that the client engages the design professional to perform.Read More
Understand the various risks assumed by Design-Builder, Owner and Engineer Subconsultant in Design-Build and Public-Private Partnerships.Read More
In a recent case against an Engineer performing residential home inspections in the State of New Hampshire, the court dismissed the case and awarded attorney’s fees against the Plaintiff Homeowner.
In a recent decision by the New York Supreme Court in June 2014, the Court affirmed that expert testimony is a necessity in a case where is it alleged that a design professional failed to adequately perform its services or improperly performed its work pursuant to a contract.Read More
The Massachusetts Superior Court (“Court”) recently held in Rodrigues v. Tribeca Builders Corp. that a project management firm whose duties are primarily logistical, managerial and administrative does not owe a duty to ensure the safety of project workers.Read More
By Lucas Blackadar, Esq.
Just this past spring, the Texas Supreme Court decided Brown & Gay Engineering, Inc. v. Olivares, 461 S.W.3d 117 (Tex. 2015), a case arising from the death of two motorists – one intoxicated and one sober – on the West Park Tollway in Fort Bend County, Texas. The key question raised in the case was whether Brown & Gay Engineering (B&G), the engineering firm retained by the Fort Bend County Toll Road Authority to design the signage and layout for the Tollway, could be protected under sovereign immunity. B&G was an independent contractor, so some on the Court felt that resolving that question was, more or less, a complete and utter waste of time. However, the Court decided to engage, swatted down most, if not all, of B&G’s arguments, and actually provided some helpful guidance in the process.Read More
With much of the discussion of D-B and P3s frequently focused on the risks and liabilities associated with these methods, the discourse can often feel negative, leaving at least some of you thinking and asking:
“If D-B and P3s represent the dominant present and future trends for infrastructure projects and potentially other, vertical projects – are they, in reality, positive developments for design professionals and do I or my firm want to be a part of those trends, and do we actually have a choice? If we do choose to be a part of those trends, how should we go about it?”Read More
In an attempt to understand the varying perspectives of owners, designers and contractors, McGraw Hill Construction released a report in September 2014 identifying aspects of uncertainty in the design and construction process.
The research was undertaken by McGraw Hill Construction Research & Analytics Group and surveyed over 2,500 owners, architects and contractors in an attempt to understand and initiate a conversation about uncertainty. While the study establishes the groundwork for understanding, the next step might be to determine how to accurately “handicap” a project as a contingency in consideration of project complexity, delivery method, project owner and design and construction team familiarity with the project type, project location, and other issues that impact a successful project.Read More
By Lindsey D. Smith, Esq.
While architects and engineers understand that, by signing a contract to perform design services, they owe a duty to those with whom they contract, they may not be aware that the law extends that duty to others with whom they did not contract. Moreover, they may not be aware that courts in different states apply different legal principles to determine the scope of the duty owed.Read More
By Lindsey D. Smith, Esq.
Courts in different jurisdictions come to different conclusions on similar legal issues, often, with vastly disparate consequences for design professionals. The economic loss rule—a doctrine preventing negligence claims seeking purely economic damages—is no different.Read More