The Design and Construction Management Professional Reporter: September 2015

Inside this issue:

New Jersey’s Joint Tortfeasor Law Warrants Strict Appliation in the Courts

By Lauren M. Ippolito, Esq.

Sovereign Immunity Still (Mostly) for Sovereigns

By Lucas M. Blackadar, Esq.

New Hampshire Supreme Court Enforces the Statute of Repose

By Michael E. Coghlan, Esq.

Project Management Firm Has No Implied Duty to Ensure the Safety of Subcontractor’s Employees

By Gregory S. Paonessa, Esq.

Expert Testimony and Proof of an Independent Legal Duty Are Required To Establish a Design Professional’s Liability

By Lauren M. Ippolito, Esq.

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Uncertainty in the Design and Construction Process

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.

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Defining the Zone of Foreseeable Risk

By Lindsey D. Smith, Esq.

Contracts

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.

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The Economic Loss Rule – Variations on Enforcement

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.

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September 3 Roundtable at the Boston Harbor Hotel

Design-Build and P3s: Risk Allocation and Professional Liability Claims Experience

Please join us on Thursday, September 3 at the Boston Harbor Hotel for a discussion led by David J. Hatem on the increasingly popular design-build and P3 delivery methods. Beyond any question, design-build is on the rise as the delivery method of choice for many public owners seeking to contain cost overrun and other project risk exposures. In addition, P3, which combines design-build with private financing, is gaining interest across the United States.

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Donovan Hatem Welcomes New Associate

Donovan Hatem is pleased to announce that James Boyce, Esq. has joined the Associate group in the New York office.

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June 17 Roundtable at the Boston Harbor Hotel

Please join us on Wednesday, June 17 at the Boston Harbor Hotel for a panel discussion focused on recent court decisions impacting design professionals. Donovan Hatem attorneys will provide presentations on several of their cases in the last year involving professional liability claims against design professionals. Actually, there is much “good” to report!

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The Design and Construction Management Professional Reporter: May 2015

Inside this issue:

Is Perfection Possible? Managing Uncertainty and Expectations in Building Design and Construction.

By Sue E. Yoakum, Esq., AIA

Variations on Enforcement of the Economic Loss Rule

By Lindsey D. Smith, Esq.

Massachusetts Courts Deny Contractor’s Differing Site Condition Claim Based on Disclaimer Language in the Contract Documents

By Joseph M. Gesker, Jr., Esq.

Florida Defines the Zone of Foreseeable Risk

By Lindsey D. Smith, Esq.

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May 28 Roundtable at the Boston Harbor Hotel

Please join us on Thursday, May 28 at the Boston Harbor Hotel for “Construction Documents, Value Engineering, Shop Drawings, Submittal Reviews and Construction Phase Risks – Can They Be Avoided or Mitigated?”

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The Accountant/Attorney Liability Reporter: December 2014

Inside this issue:

Claim for Failure to Notify of Potential Fraud Allowed to Proceed

By Lindsey D. Smith, Esq.

Choice of Law and State Securities Law Prevent Dismissal of Auditor

By Adam C. Benevides, Esq.

Fiduciary Duty and Tolling of Limitations Period Considered in Connecticut

By Courtney A. Longo, Esq.

Alabama Court Dismisses a Fraud-by-Hindsight Action for Failure to Plead with Particularity

By Lauren P. Marini, Esq.

Appellate Court of Illinois Affirms Form 4549’s Sufficiency as Notice of Injury Triggering Statute of Limitations

By Amanda E. Mathieu, Esq.

In Pari Delicto: A Viable Defense in Limited Circumstances

By Jonathan A. Barnes, Esq.

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Donovan Hatem LLP Congratulates Colin M. Black and Daniel C. Poteet

Donovan Hatem is pleased to announce that Colin M. Black and Daniel C. Poteet have been elected partners of the firm. Both will continue to practice out of the Boston Office.

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Fidelity and Surety Law Committee Midwinter Meeting

Sue Yoakum, AIA and Dan Klancnik will be presenting Building Information Modeling (BIM) – Risks and Legal Concerns at the upcoming Fidelity and Surety Law Committee Midwinter meeting on January 22 from 1:30-2:15. This presentation will commence with a state-of-the-art BIM presentation by Dan Klancnik and follow with a timely presentation by Sue Yoakum on past, present and future risks associated with the use of BIM on a construction project. They will also address various legal concerns involving the use of BIM, identify “noise” relating to the use of BIM, and provide guidance regarding the handling and avoidance of BIM claims.

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Donovan Hatem LLP Welcomes New Associates

Donovan Hatem is pleased to announce that Amy Miller, Esq., Amanda Mathieu, Esq., Daniel Lagosh Jr., Esq., and Gregory Paonessa, Esq. have joined the Associate group in the Boston office.

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December 11 Roundtable at the Boston Harbor Hotel

Please join us on December 11 for our last roundtable of 2014! Cheryl Waterhouse, Esq., and Dan Poteet, Esq. will present Practice Requirements for A/E Firms. This roundtable will address various states’ statutory and regulatory provisions that impact the practice of architectural and engineering services through corporate entities. Breakfast and registration starts at 7:30 am in the Wharf Room, we hope to see you there!

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Brian C. Newberry unanimously re-elected House Minority Leader

Donovan Hatem LLP is pleased to announce that Brian C. Newberry, a partner has been unanimously re-elected as a Minority Leader of the Rhode Island House of Representatives. Newberry, representing District 48 in North Smithfield and Burrillville, was elected to lead the caucus for the 2015-2016 legislative session. He was first elected House Minority Leader in 2011 and has been serving the people of District 48 since 2008.

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Donovan Hatem LLP Welcomes New Associate in the New York office

Donovan Hatem LLP is pleased to announce that Michael P. Hess has joined the New York office as an Associate in the Professional Practices Group. Prior to joining Donovan Hatem, Mr. Hess was an Associate in a mid-sized law firm in New York handling all aspects of litigation from inception through trial. Notable representations include Pipia v. Turner Constr. Co., 114 A.D.3d 424 (1st Dept. 2014), and Lugo v. Purple & White Mkts., Inc., 104 A.D.3d 435 (1st Dept. 2013).

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2014 Massachusetts Super Lawyers

Donovan Hatem LLP, a multi-practice law firm, is pleased to announce that David J. Hatem, Esq., and Kenneth B. Walton, Esq., have been named Massachusetts Super Lawyers for 2014.

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ABX 2014

David J. Hatem, P.C., and Sue Yoakum, AIA will be presenting Fiduciary Duty and Liability of Design Professionals (session A31) at the upcoming ABX conference on October 28 from 10-11:30. This presentation explores the difference between fiduciary duty and standard of care and how to avoid, manage and separate fiduciary duty and standard of care risks. If you are attending ABX we would love to see you at our session!

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November 6 Roundtable at the Boston Harbor Hotel

Please join us on November 6 as David Hatem, P.C. presents Varying Risk and Responsibility for Design Adequacy in Alternative Project Delivery Methods at the Boston Harbor Hotel. This program will address how risk and responsibility for design adequacy is impacted in the context of project delivery approaches, between project participants in direct contractual relationships and between design professionals and third parties with whom the design professional has no direct contractual relationship. Registration and continental breakfast is at 7:30 am in the Wharf Room, the presentation will begin at 8am.

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Design and Construction Management Professional Reporter: September 2014

Inside this issue:

Only Firms Registered to do Business in Nevada May Recover Fees

By Craig MacLellan, Esq.

Public-Private Partnership and Design-Build Subsurface Projects: Who is Actually Responsible for Design and Subsurface Conditions Risk? A Call for Guidelines

By David J. Hatem, PC

Arbitration Finding that Owner Deviated from Architect’s Design Precluded Owner from Suing Architect in Subsequent Litigation

By Pamela C. Rutkowski, Esq.

Revised Kansas Professional Statute Creates Ambiguity in Engineering Practice

By Peter M. Vetere, Esq. and Jesse R. Taylor, Esq.

Massachusetts Superior Court Draws Distinction between Construction Manager at Risk Contracts and Traditional Design-Bid-Build Contracts in Allocating Project Risk and Responsibility for Design Adequacy and Cost Overruns

By Kristin A. Hartman, Esq.

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