The Design & Construction Management Professional Reporter: Fall 2023
Inside This Issue:
Note from the Editor
Donovan Hatem is pleased to present a special edition of its D&C Reporter. The publication is dedicated to the discussion of delivery methods and risk allocation for subsurface projects. David Hatem’s thought provoking and comprehensive analysis provides valuable guidance to industry professionals, and we trust you will find this article informative and helpful.
If you have any questions or wish to discuss this article or any issue impacting the design and
construction industry,
The Design & Construction Management Professional Reporter: Spring 2023
Inside This Issue:
Note from the Editor
Donovan Hatem is pleased to present its Spring 2023 D&C Reporter. This past winter saw dramatic shifts in weather from day to day. Economic conditions have been equally unsettled and oftentimes defy prediction, but there is a wide array of public and private projects that occupy the industry.
This edition discusses recent cases on the statute of repose as it applies to design professionals in a variety of contexts,
Read MoreThe Design & Construction Management Professional Reporter: September 2022
Inside This Issue:
Note from the Editor
As summer is ending, we hope this finds you well and refreshed. We look forward to positive energy in the industry with new spending and ambitious programs underway.
In this edition of the Reporter we discuss a case where the Civilian Board of Contract Appeals awarded equitable adjustment to a GSA contractor for defective specification in an RFI, a Nevada decision holding breach of contract by an architect under state law is not preempted by the ADA,
Read MoreThe Design & Construction Management Professional Reporter: Winter 2021/2022
Inside This Issue:
“Should Geotechnical Baseline Reports be the Universal and Exclusive Contractual Basis for Subsurface Conditions Risk Allocation?”
By: David J. Hatem, PC
Massachusetts Appeals Court Holds MEP Contractor’s Use of “Individual Expertise” to Support Hot Water Tank Installation is Protected by the Statute of Repose
Retail Tenants Continue To Seek Relief From Leases Due To Covid Induced Business Interruptions, While Results Remain Favorable For Landlords
By: Stephen F. Willig
To read a PDF version of the Winter 2021/2022 issue,
Read MoreThe Design & Construction Management Professional Reporter: December 2020
Inside This Issue:
“Rethinking and Recalibrating Design-Build”
By: David J. Hatem, PC
“Texas Court of Appeals Affirms Strict Compliance with Certificate of Merit Statute.”
By: Andrew S. Hassey
To read our December 2020 issue, please click here.
The Design & Construction Management Professional Reporter: July 2020
INSIDE THIS ISSUE:
“Florida Court Rules Architects Can Be Liable To Contractors For Negligence”
By: Michael Robertson
“Massachusetts High Court Rules that Consent to Settle Provisions in Professional Liability Policies are Enforceable”
By: Jon C. Cowen, Esq.
“District Court of Massachusetts Judge Certifies Question Concerning Statute of Repose Applicability to SJC”
“Vigor Works Decision Demonstrates Certain Risks for Designers and Contractors in Design-Build Arrangements”
To read our most recent issue,
Read MoreThe Design & Construction Management Professional Reporter: July 2019
Inside This Issue:
“Changing Professional Liability Practice Insurers: Perils for Consulting Engineers Involved in Design-Build Projects”
By: David J. Hatem, PC
“The Massachusetts Supreme Judicial Court Reaffirms Ruling that the Statute of Repose Permanently Bars All Claims”
By: Gwen P. Weisberg
To read our July 2019 issue, please click here.
The Design & Construction Management Professional Reporter: May 2019
Inside This Issue:
“Protection Under A ‘No Damages For Delay’ Clause In Contract Between Contractor and City May Not Be Extended To Third-Party Architecture Firm”
“Designers Utilizing Drones in Development Require Plans for Regulatory Compliance and Risk Management”
“Florida Appeals Court Finds Consequential Damages Waiver Provision Valid in Design Contract”
To read our May 2019 issue, please click here.
The Design & Construction Management Professional Reporter: Summer 2018
Inside This Issue:
“A Project Manager May Owe a Duty of Care to a General Contractor Without Privity of Contract”
“No One Would Buy the House: Tennessee Court Holds That Defendant Has Burden of Demonstrating Cost of Repairs to Damaged Real Property in Certain Circumstances”
“Practice Tips for Engineers Facing Ethical Dilemnas”
“U.S. District Court Finds “Faulty Workmanship” Exclusion in Professional Liability Policy Precludes Coverage for $894,671.97 Award”
“The Spearin Doctrine, in Relation to Design-Build Projects,
The Design & Construction Management Professional Reporter: April 2018
Inside this Issue:
Colorado Court of Appeals Rules On Implementation Of Settlement Setoff
Federal District Court Dismisses Cross-Summary Judgment Motions in Copyright Action
Massachusetts Appeals Court Reverses Dismissal of Complaint Under Anti-Slapp Statute
Penzel: Missouri Court of Appeals Applies Spearin and Modified Total Cost Damages in Two Instances of First Impression
Recent Case Highlight: Third Party Claims
By: Brian C. Newberry
To read our April issue, please click here.
The Design & Construction Management Professional Reporter: December 2017
Inside this Issue:
Design-Build & Public-Private Partnerships: Managing Cost Overrun Risk for Project Owners On Infrastructure Megaprojects
By: John Reilly P.E., C.P.Eng. and David J. Hatem, PC, Esq.
Abstract
Cost overrun risk for owners has been a significant concern, prompting development of a number of best practices to more realistically identify and quantify risks that impact cost and schedule on megaprojects and to prudently allocate those risks among project participants.
Design-build (DB) and public-private partnership (P3) projects present owners with the opportunity to transfer substantial design and construction risks to private sector participants.
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
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
Recent Case Highlights Important Business Lesson
Massachusetts Appeals Court Affirms Dismissal of Complaint Against Design Professionals Based Upon the Three-Year Statute of Limitations
Divergent Outcomes in Massachusetts Cases Demonstrate the Effect of a Comprehensive Bar Against Damages in a Subcontract
Read MoreThe 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
Limitation of Liability Provision May Not Preclude Recovery Under Chapter 93A if Claim is Based Upon Fraudulent Conduct
New Hampshire Supreme Court Rules Municipalities Have Limited Time to Bring Lawsuits Against Design Professionals for Municipal Contract Breaches
Considering the Costs of Contract Arbitration Clauses
Read MoreThe Design & Construction Management Professional Reporter: December 2016
Inside this issue:
Diverse and Bifurcated Design Roles: Distinguishing Design Responsibility and Design Risk Allocation
Read MoreThe 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
Colorado Supreme Court Finds Tort Claims Not Barred by the Economic Loss Rule if Supported by an Independent Duty
New York Appellate Court Enforces the Economic Loss Doctrine and Bars Contribution Claim
Resentful Homeowner Lacks Reliance and Proper Timing
Defense Verdict Highlights Importance of Defining Beneficiaries in Contracts
Read MoreThe 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
General Contractor’s Case Against Design Professional is not Barred by the Theory of Claim Preclusion
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
Expecting the Unexpected: Using Standard Construction Contingency to Establish Minimum Design Standard of Care
Read MoreThe 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
A Resident Engineer Providing Inspection Services Owes No Duty to a Subcontractor
By James M. Boyce, Esq.
Read MoreThe 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
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.
Read MoreThe Design and Construction Management Professional Reporter: May 2015
Inside this issue:
Is Perfection Possible? Managing Uncertainty and Expectations in Building Design and Construction.
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.
Read MoreDesign 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
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.
Read More
