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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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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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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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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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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Design-Build and Public-Private Partnerships: Risk Allocation of Subsurface Conditions

By David J. Hatem, Esq. This article, with permission from ASCE, can be found here.
“This material may be downloaded for personal use only. Any other use requires prior permission of the American Society of Civil Engineers.”

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Design and Construction Management Professional Reporter: April 2014

Inside this issue:

Massachusetts Superior Court Holds Contractor Liable for Loss of Subcontractor Productivity

By Justin Twigg

Public-Private Partnerships and Design-Build Subsurface Projects: Consulting Engineer Professional Liability Risk

By David J. Hatem, PC

New Jersey Supreme Court Requires Written Agreement to Enforce Settlement Reached Through Mediation

By Kristin A. Hartman, Esq.

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The Accountant/Attorney Liability Reporter, December 2013

Inside this issue:

Accounting Firm Not Liable for Malpractice where Client Knowingly Filed a False Income Tax Return

By Peter M. Vetere, Esq.

Connecticut Appellate Court Partially Reverses Trial Court’s Entry of Summary Judgment in Favor of Defendant Accountant, but Refuses to Apply CUPTA to Professional Malpractice Claims

By Craig J. MacLellan, Esq.

Statutes of Limitation in Accounting Malpractice Cases

By Adam C. Benevides, Esq.

Appellate Court of Illinois Rejects Contractual Defense in Allowing Claim for Breach of Fiduciary Duty to Proceed Against Accountant

By Daniel C. Poteet

PCAOB Proposed Expanded Language for Auditor Reports

By By Cheryl A. Waterhouse, Esq.

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Design and Construction Management Professional Reporter: December 2013

Inside this issue:

Connecticut Supreme Court Rules That Damages for Faulty Workmanship May Be Encompassed Within a Commercial General Liability Insurance Policy

By Kristin A. Hartman, Esq.

Florida Aborogates Individual Liability For Design Professionals

By Craig J. MacLellan, Esq.

Economic Rule Bars Claims for Negligent Misrepresentation Under Nevada Law

By Kristen R. Ragosta, Esq.

Massachusetts Superior Court Holds Architect Has No Liability to Guarantee Jobsite Safety

By Pamela C. Selvarajah, Esq.

New Jersey Court Finds Contractor’s Suit Against Architecture Firm Not Barred by Economic Loss Doctrine; Contractor’s Failure to File Affidavits of Merit Precludes only Professional Standard of Care Claims

By Rebecca McWilliams, AIA, Esq.

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Donovan Hatem LLP is pleased to announce the publication of: Public-Private Partnerships: Opportunities and Risks for Consulting Engineers, edited by David J. Hatem, PC and Patricia B. Gary, Esq.

Public-Private Partnerships: Opportunities and Risks for Consulting Engineers

Edited by David J. Hatem, PC and Patricia B. Gary, Esq. and published by ACEC, this book will provide a comprehensive guide to successfully navigating the important issues confronting consulting engineers in projects being delivered as Public-Private Partnerships (P3s), including risk management and professional liability issues. The book may be purchased through the ACEC’s online bookstore at www.acec.org. All proceeds from the sale of this book are exclusively retained by ACEC.

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Design and Construction Management Professional Reporter: July 2013

Inside this issue:

Design Professional’s Duty of Care to Third-Party Purchasers

By Ryan L. Belka, Esq.

Donovan Hatem LLP Wins Summary Judgment on Appeal to the Massachusetts Appeals Court

By Matthew F. Lenzi, Esq.

Florida Design Professionals Are Now Protected From Personal Liability

By Lauren P. Marini, Esq.

Architect Shielded from Liability by the Completed and Accepted Doctrine

By Adam C. Benevides, Esq.

The Supreme Court of Florida Limits Application of the Economic Loss Rule to Products of Liability Cases

By Peter C. Lenart, Esq.

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The Accountant/Attorney Liability Reporter, December 2012

Inside this issue:

AICPA Issues Exposure Draft Of Proposals For Financial Reporting Framework For Small And Medium Sized Entities

By John B. Connarton, Jr., P.C.

New Jersey Supreme Court Provides Guidance On The Application Of N.J.S.A. 2A:53A-25: The Accountant Liability Act’s Limitation On Third Party Lawsuits Against Accountants

By Matthew P. Tuller, Esq.

Accounting Firm As Taxpayer Brought Up Short On Difference Between Compensation and Dividends

By John B. Connarton, Jr., P.C.

Following The Saying That If You Don’t Succeed, Try, Try Again, The U.S. District Court For The Western District Of Pennsylvania Recently Issued A Decision Denying A Motion To Dismiss An Amended Complaint Filed Against An Accounting Firm Where Seven Months Earlier The Court Had Allowed A Motion To Dismiss The Original Complaint

By Justin M. Jagher, Esq.

Third Party Liability for Tax Opinions: Sixth Circuit Rules Opinion Letter Actionable Under RICO

By Daniel DeBlander

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Design and Construction Management Professional Reporter: December 2012

Inside this issue:

Attorneys’ Fees – How Much Can I Recover?

By Justin R. Giles, III, Esq.

Architect Succeeds In Limiting Liability By Memorializing Agreement For Changes In Scope

By Justin M. Jagher, Esq.

Absolute Legislative Immunity Regarding Alleged False Statements Pertaining To a Bidder’s Credentials Is Not Extended to Engineer Retained By City

By Matthew F. Lenzi, Esq.

Wisconsin Appellate Court Holds that Contract Claims are Barred by the Statute of Limitations and Contracts Incorporating both Products and Professional Services May be Encompassed within the Economic Loss Rule under the “Predominant Purpose” Test

By Pamela C. Selvarajah, Esq.

Recent Client Experience Reminds Companies to Take Care With “Form” Contracts of All Types

By Peter C. Lenart, Esq.

Supreme Judicial Court Rules Valid Contractual Limitation Period

By Colin M. Black, Esq.

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Massachusetts Extends Land Use Permits—Again

By Neal B. Glick and Peter M. Vetere. Read full article.

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The Accountant/Attorney Liability Reporter: September/October 2012

Inside this issue:

In Pari Delicto Defense Applies Against a Trustee Suing For Professional Negligence

By Amanda E. Mathieu, Esq.

PCAOB Issues Report on the Progress of the Interim Auditor Inspection Program

By John B. Connarton, Jr.

Legal Considerations for Adding a Partner to your Accounting Firm – One Cautionary Tale

By Sa’adiyah Masoud

Lender’s Lack of Reasonable Reliance on Audits of Borrower Precludes Finding Against Accountant

By John B. Connarton, Jr.

When Does Malpractice Occur?

By Justin R. Giles, III

Second Circuit Court of Appeals Affirms Importance of Pleading Requirements for Fraud and Strictly Applies Test for Accountant Liability to Investment Fund Investors Absent a Contractual Relationship

By Daniel C. Poteet, Esq.

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