California Legislature Modifies Indemnity Obligations for Design Professionals

By Gwen P. Weisberg, Esq.

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.

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Update: Maryland Court of Appeals Affirms Dismissal in Duty of Care Case

By Gwen P. Weisberg, Esq.

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.

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Climate Change, Sustainability, and Resiliency: Design Professional Roles and Risks

By David J. Hatem, PC

Climate Change, Sustainability, and ResiliencyThe 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.

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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.

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The Design & Construction Management Professional Reporter: March 2017

Inside this issue:

Acceptance of Initial Design Documents in Divisible Design Contract Triggers Accrual of a Breach of Contract Action Against Design Professional

By Molly E. Manson, Esq.

Limitation of Liability Provision May Not Preclude Recovery Under Chapter 93A if Claim is Based Upon Fraudulent Conduct

By Patricia B. Gary, Esq.

New Hampshire Supreme Court Rules Municipalities Have Limited Time to Bring Lawsuits Against Design Professionals for Municipal Contract Breaches

By James L. Soucy, Esq.

Considering the Costs of Contract Arbitration Clauses

By Brian C. Newberry, Esq.

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The Design & Construction Management Professional Reporter: December 2016

Inside this issue:

Diverse and Bifurcated Design Roles: Distinguishing Design Responsibility and Design Risk Allocation

By David J. Hatem, PC

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Public-Private Partnerships and Design-Build: Opportunities and Risks for Consulting Engineers

P3-DBAs P3 and DB approaches on bridges, roads, transit, water supply and treatment, tunnels, rail, and other public infrastructure projects continue to increase, consulting engineers need access to vital knowledge and reliable expertise to make conscientious and prudent decisions about P3 and DB project opportunities and risks.

The second edition of Public-Private Partnerships and Design-Build: Opportunities and Risks for Consulting Engineers presents new industry information and experience on P3 and DB approaches, and offers timely recommendations about the rewards, challenges, and risk exposures for consulting engineers in today’s still evolving P3 and DB project work environment.

All proceeds from the sale of this book are exclusively retained by ACEC. To learn more about this edition or purchase a copy, visit www.acec.org.

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A Tale of Two Cities: Retrospective and Prospective Views of the Big Dig and Megaproject Delivery

By David J. Hatem, PC and Gregory S. Paonessa, Esq.

From the 1950s until substantial completion of the Central Artery Tunnel (CA/T) Project in 2006, otherwise known as the Big Dig, Boston was a city divided. Dubbed the “Green Monster” by locals, the elevated Central Artery ran from the north of the City southbound over the Charles River and by the Boston Garden. From that point, it separated the North End from the West End, and Government Center, Faneuil Hall and the Financial District from the Waterfront. The Artery provided a never ending source of smog and soot which covered surrounding buildings and engulfed the City in noise from vehicular traffic. It plagued the City as an under-designed, ill-conceived means of traversing from the North to the South Shore and the I-95 corridor.

Read the entire article on page 5 in ACEC Insights.

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The Accountant/Attorney Liability Reporter: November 2016

Inside this issue:

Punitive Damages Claims Against an Accounting Professional May Be Allowed to Proceed Based on Gross Negligence

By Kristen R. Ragosta, Esq.

California Ruling Indicates MFAA Fee Arbitrations Now Subject to One-Year Statute of Limitations Defense

By Charleen M. Thunberg, Esq.

In Tax Scheme Case, Fraud Claim Against Attorney Allowed to Proceed

By Daniel Lagosh, Jr., Esq.

New York Dismisses Breach of Fiduciary Duty Claim Against Accountants Based Upon Statute of Limitations

By Ryan P. Moore, Esq.

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The Design and Construction Management Professional Reporter: September 2016

Inside this issue:

Supreme Court Rules That Grounds for Judicial Review of an Arbitration Award Cannot be Altered by a Contract

By Kristen R. Ragosta, Esq.

Colorado Supreme Court Finds Tort Claims Not Barred by the Economic Loss Rule if Supported by an Independent Duty

By Lauren E. King, Esq.

New York Appellate Court Enforces the Economic Loss Doctrine and Bars Contribution Claim

By Nicholas G. MacInnis, Esq.

Resentful Homeowner Lacks Reliance and Proper Timing

By Gregory S. Paonessa, Esq.

Defense Verdict Highlights Importance of Defining Beneficiaries in Contracts

By Brian C. Newberry, Esq.

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The Design and Construction Management Professional Reporter: April 2016

Inside this issue:

Mississippi Appeals Court Uses Seven Factors to Determine Whether Supervisory Powers Extend Beyond Contract Provisions Contained in A/E Contract

By Kristin A. Hartman, Esq.

General Contractor’s Case Against Design Professional is not Barred by the Theory of Claim Preclusion

By Daniel Lagosh, Jr., Esq.

Maryland Court of Special Appeals Upholds Dismissal in Duty of Care Case Based on Purely Economic Losses

By Lucas M. Blackadar, Esq.

Contractor’s Delay Claim Against the Architect Survives Motion to Dismiss in Virginia

By Ryan P. Moore, Esq.

Expecting the Unexpected: Using Standard Construction Contingency to Establish Minimum Design Standard of Care

By Kristen R. Ragosta, Esq.

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The Design and Construction Management Professional Reporter: January 2016

Inside this issue:

Owners, Take Heart – Amendment to Texas Condominium Law Gives Unit Owners a Voice in Construction Litigation

By Lucas M. Blackadar, Esq.

Risk Associated With Differing Site Conditions Can Be Expressly Assumed

By Amanda E. Mathieu, Esq.

Nullum Tempus Occurrit Regi? No, But the King Still Has a Long Time

By Lucas M. Blackadar, Esq. and Jonathan A. Barnes, Esq.

The Importance of Carefully Reviewing Contract Terms Including Those Incorporated by Reference

By James L. Soucy, Esq.

A Resident Engineer Providing Inspection Services Owes No Duty to a Subcontractor

By James M. Boyce, Esq.

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The Art of Mediation

An infographic offering strategic mediation planning considerations.

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Relational Risk Allocation in D-B and P3s

Understand the various risks assumed by Design-Builder, Owner and Engineer Subconsultant in Design-Build and Public-Private Partnerships.

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An Engineer’s Professional Liability Case in New Hampshire

By Michael Coghlan

Design Professionals Do Have Choices
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.

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Requirements for Establishing a Design Professional’s Liability

By Lauren M. Ippolito

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.

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

By Gregory Paonessa

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.

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In Case You Missed It: Sovereign Immunity Still (Mostly) For Sovereigns

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.

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D-B and P3s: Design Professionals Do Have Choices!

By David J. Hatem, PC

Design Professionals Do Have Choices

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?”

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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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