North Carolina Court Clarifies [1] Plaintiffs Have the Burden of Proving—not Pleading—That Their Claim Was Filed Within the Statute of Repose and [2] the Statute of Repose Commences on Substantial Completion for Each Contractor

In August 2022, the North Carolina Court of Appeals held that claims against an engineer and a subcontractor were improperly dismissed at the pleading stage where the plaintiff did not allege an act or date of substantial completion regarding the statute of repose in its complaint. Gatson County Board of Education v. Shelco, LLC, 877 S.E.2d 316 (N.C. Ct. App. 2022) concerned an action by the Gatson County Board of Education (the “Board”) against Shelco,

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Federal Court in South Florida: Original Architect Liable for Design Flaws in Original Plans Despite Appointment of Successor Architect

By Allison K. Jones

The Unites States District Court for the Southern District Court of Florida issued an opinion in Hotels of Deerfield, LLC et al. v. Studio 78, LLC et al., (2022 WL 731944 (S.D. Fla., Mar. 11, 2022) (Singhal, J.)  holding a project’s original architect responsible for design flaws in his drawings, even though he had been replaced by a successor architect. This was the case even though the building was constructed solely based on the successor architect’s design and specifications.

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The Assignment of a Design Agreement Must Be Carefully Drafted

By Gail Kelley

When contemplating entering into a design-build agreement for a Project, owners often contract with a design professional to provide various services for the Project before they enter into an agreement with the Design-Builder.   Depending on what these services entail, the documents developed by the design professional may serve as the Basis of Design for the design-build agreement, or the Owner may assign the design professional’s agreement, including the documents prepared under the agreement,

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The Economic Loss Doctrine’s Relevance To Construction Cases And Recent Application In Arizona And North Carolina

By Jessica Scarbrough


Understanding and calculating damages that may be recoverable is an essential element in any claim or lawsuit, as such informs on how to defend and how to work toward a resolution.  This is especially relevant in construction litigation where damages can be large and accrue over a sustained period of time.  Of equal import is knowing what is not recoverable.  The economic loss doctrine (“ELD”) is one limitation on recoverable damages that will often apply to construction cases. 

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Massachusetts Superior Court Finds Injured Pedestrian’s Claims Against Contractor Not Time-Barred, Despite Arising 6+ Years After Project Completion

By Jena M. Richer

The Massachusetts Superior Court recently refused to dismiss a pedestrian’s personal injury claim against a contractor, rejecting the contractor’s argument that such claims should be time-barred under the Massachusetts statute of repose in Lefta v. Signet Electronics, Inc., 2022 WL 16855617, at *1 (Mass. Sup. Ct.).

Lefta involved a pedestrian injured by a faulty door lock at a nursing home. Years before that incident, in October of 2010,

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Texas Appellate Court Holds Certificate Of Merit Against One Design Professional Does Not Apply To Sub Consultant By Mere Reference To Such In A Pleading

By Stephen F. Willig

The Texas Court of Appeal (14th District) issued an April 2022 opinion in Thompson Hancock Witte &
Associates v. Stanley Spurling & Hamilton
, 2022 WL 1010270, affirming that state’s requirement for a certificate of merit in a suit against a design professional. In particular, the Court held a certificate of merit directed toward one professional would not, through simple reference in a pleading, apply to another professional even though the alleged breach of the standard of care is the same for both.

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Statute Of Repose: New York May Finally Be Joining The Rest Of The Country

By Andrew M. Radespiel

A Statute of Repose, for purposes of this discussion, bars a claim against design professionals and contractors after passage of a certain amount of time from project completion.   This is similar to but different than a Statute of Limitations, which sets a deadline to commence a lawsuit measured from the time an injury occurs or when a professional engagement, if injury occurred during that engagement, ends. The rationale behind the former is to allow design professionals and contractors to put a project to rest,

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Nevada Supreme Court Finds Breach Of Contract Against Architect Under State Law Is Not Preempted By The ADA

By Thomas D. Duquette

In December 2021, the Nevada Supreme Court held state law claims brought against an architect for failure to comply with ADA Guidelines were not preempted by the Americans with Disabilities in Board of Regents of Nevada System of Higher Education on Behalf of the University of Nevada, Reno v. Worth Group Architects, P.C., 499 P.3d 1177 (Nev. 2021). Worth Group Architects, P.C. (“WG”) was contracted to design renovations to Mackay Stadium,

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Equitable Adjustment Awarded To Contractor For Defective Specification In RFI

by Michael S. Robertson

On November 21, 2021, the Civilian Board of Contract Appeals (the “Board”) (an independent tribunal within the General Services Administration (“GSA”) that presides over contract disputes between government contractors and agencies under the Contract Disputes Act) issued a decision in Wu & Associates v. General Services Administration.  Wu & Associates (“Wu”) challenged a denial by the GSA for additional funds for claimed expanded scope of work. Specifically, Wu sought additional funds to strengthen flooring in order to move heavy equipment for an elevator modernization project.

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