The United States Court of Appeals for the Fifth Circuit recently decided a case that
reiterated and reinforced the supremacy of contract language in resolving a dispute
concerning liability when actually encountered subsurface conditions differed from
those expected.
Massachusetts Court Upholds No Damages for Delay Clause
in Municipal Contract
In a recent decision, a Massachusetts Superior Court has reinforced a no damages
for delay clause in an action against a City arising out of the design and construction
of a municipal golf course. The Court dismissed the contractor’s complaint
against the City, ruling that the no damage for delay clause in the project manual
barred the contractor’s claims. Atlantic Golf Construction Ltd. v. City of Peabody,
No. 2002-00798 (Essex Super. Ct., filed February 28, 2002). The Court similarly
dismissed the City’s third-party complaint against the golf course designer seeking
contribution or indemnity. Donovan Hatem LLP represented the designer.
Court Holds that Contractor Was Not
an Intended Third Party Beneficiary
of a Contract Between the Owner and
Architect
A California appellate court has affirmed a trial
court’s order dismissing a complaint filed by a contractor
against an architect. In Greg Opinski Construction
Company v. Pacific Design Associates, Inc.,
2005 Cal. App. 5th Unpub. LEXIS 5525, the court held
that the contractor failed to establish that it was either
an intended third party beneficiary of a contract
between the city and the architect or that they had a
“special relationship” with the architect.
California Appeals Court Sets Aside
Arbitration Award Due to Untimely
Claim
In a breach of construction contract action, the California
Court of Appeals held that an arbitration
award that included damages for claims that were
not timely submitted was contrary to the California
Public Contract Code and, thus, not decided in accordance
with state law. Department of Transportation
v. Heritage Engineering Construction, Inc., 2004 Cal.
App.Unpub.LEXIS 10631. Therefore, the Court set
aside the award to the extent it included untimely
claims.
Surety is Entitled to Maintain a Negligent Misrepresentation Claim Against
Architect by Showing “Functional Equivalent” to Privity of Contract
In Travelers Casualty & Surety Co. v. Dormitory Authority of the State of New York (May 19, 2005)(Baer, J.), a federal
district court in New York held that a contractor’s surety is entitled to maintain a negligent misrepresentation claim
against the architect hired by the project’s owner to prepare plans and specifications, assist with the bidding process,
and to oversee the work.
Appellate Courts in Illinois and Minnesota
Address Expert Testimony
Expert testimony can play an important role in the
outcome of a case; parties often must rely on expert
testimony to establish a claim or defense. By definition
an expert witness is someone whose special
knowledge of a subject enables him/her to express
opinions and draw conclusions in his/her testimony
at trial. In an effort to limit uninformed and possibly
misleading testimony, courts have tried to establish
clear and consistent guidelines regarding experts.
Recently, the Appellate Court of Illinois and the Court
of Appeals of Minnesota addressed issues regarding
the use of expert testimony.
North Carolina Court Interprets Use of Lay Witness in Lieu of Expert Testimony in Professional Negligence Claims
By Douglas M. Marrano, Esq.
In a recent decision by the Court of Appeals of North
Carolina, the court decided a general contractor’s use
of its own employee in lieu of an expert witness
failed to establish the relevant standard of care for a
civil engineer or whether the engineering company
had breached the applicable standard of care. Handex
of the Carolinas, Inc. v. Cty. of Haywood, et al.,
607 S.E.2d 25 (N.C. Ct. App. 2005).
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