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”
By: Catherine Maronski

“Vigor Works Decision Demonstrates Certain Risks for Designers and Contractors in Design-Build Arrangements”
By: Jennifer Lincoln,

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Partner Jon Cowen and the recent SJC Covid-19 Order highlighted in Mass Lawyers Weekly

Massachusetts Lawyers Weekly article on an emergency rule adopted by the Supreme Judicial Court in response to the COVID-19 pandemic.

Click here to read the article on this unique decision in today’s climate.

Donovan Hatem argued that, even in a Covid-19 environment, its client should not be forced to give trial testimony.

The Donovan Hatem team included Jon Cowen and Sean McCarthy

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September Roundtable: Measuring Design Professional Performance

Though we took a break, Donovan Hatem is still committed to providing our community with quality programming and we are excited to resume our Roundtable series for the rest of 2020! Please join us Wednesday, September 23 for our virtual Roundtable to discuss measuring design professional performance.

Topics include:

  • Standard of Care
  • Measuring Imperfection
  • Difference between Standard of Care & Owner-Implied Warranty
  • Role of Experts

Click here to register

Please email Roundtable@donovanhatem.com if you have any questions or concerns.

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Recent Win: NY Team Obtains Pre-Answer Dismissal for Client

Donovan Hatem’s NY team led by Scott Winikow and Steve Willig successfully secured a dismissal on behalf of our client from a $10 million suit in the United States District Court of New Jersey. Our client was engaged as an engineering consultant to a New Jersey municipality for a dredging project. The main contractor brought suit against its subcontractor claiming negligent work, and the subcontractor then sought to implead our client on the theories of contractual contribution and common law contribution and indemnification.

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Donovan Hatem Obtains Appellate Court Victory for Client!

Donovan Hatem secured an appellate court victory for a design professional client when the Massachusetts Appeals Court affirmed the Superior Court’s dismissal of a lawsuit that alleged defective design and construction of a luxury condominium. The Appeals Court, in its June 23, 2020 decision, agreed with the Superior Court’s dismissal of the claims against the design professional finding that the plaintiff’s claims were time-barred based on the expiration of the three-year statute of limitations for claims of professional negligence and negligent misrepresentation.

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David Hatem published in Tunnel Business Magazine

David Hatem was published in the June issue of Tunnel Business Magazine. His article, titled “Improving Risk Allocation on Design-Build Subsurface Projects,” addresses some root causes that have lead to the increasing concerns surrounding fixed-price contracting and how improving your risk allocation can help the efficiency of Design-Build projects.  To read the entire article, click here.

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Coronavirus (COVID-19) Response and Resources

As the world continues to deal with uncertainties surrounding the Coronavirus pandemic, Donovan Hatem is working collaboratively with one another and our clients to adapt quickly to unprecedented challenges. However, our commitment to our clients and our communities remains the same.
Below is a wide range of content pertaining to COVID-19 that we will be regularly updating. Please see the information below and contact us if you have further questions.
 

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Jon Cowen highlighted in Mass Lawyers Weekly cover article on case of first impression before Supreme Judicial Court

Mass Lawyers Weekly highlighted the recent Massachusetts Supreme Judicial Court decision holding that the state’s Lis Pendens statute mandates an award of appellate attorneys’ fees to the prevailing party on a special motion to dismiss:
DeCicco makes clear that there is risk to litigants who are of a mind to tie up pieces of real estate in the hopes of negotiating a better deal, said the defendant’s attorney, Jon C. Cowen of Boston.

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Donovan Hatem Client Entitled to Appellate Attorney’s Fees against Frivolous Claim of Title

On May 11, 2020, the Massachusetts Supreme Judicial Court decided a matter of first impression, holding that the state’s Lis Pendens statute mandates an award of appellate attorneys’ fees to the prevailing party on a special motion to dismiss. The Lis Pendens statute, M.G.L. ch. 184, section 15, provides a mechanism for persons with a legitimate claim to title or use of real property to record a notice with the registry of deeds, putting the world on notice of its claim.

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Donovan Hatem files Amicus Brief with Massachusetts Supreme Judicial Court Urging Court to Uphold Statute of Repose

On April 14, 2020, Donovan Hatem, LLP filed an Amicus (friend of the court) brief with the Massachusetts Supreme Judicial Court (SJC) in the matter of D’Allessandro v. Lennar Hingham Holdings, LLC (https://www.ma-appellatecourts.org, case number SJC-12891)  The brief was filed on behalf of the American Council of Engineering Companies of Massachusetts (ACEC) and the Massachusetts Chapter of the American Institute of Architects (AIA/MA).
In this case, the SJC will decide an issue concerning the application of the Statute of Repose to a multi-phase condominium development. 

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Article Authored by Jon Cowen Highlighted in ACEC/MA Winter 2020 Insights

Jon Cowen’s article on the recent SJC decision on consent to settlement was recently highlighted in the ACEC/MA quarterly newsletter. To read the full newsletter, click here. You can also view the original post here.
Jon also hosted a Roundtable webinar in conjunction with ACEC/MA highlighting major points in the case and how it affects Design Professionals. Click here, to view the presentation pdf.

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March Roundtable: Consent to Settlement: A Review of the Recent Supreme Judicial Court Decision

 
Jon Cowen gave an in-depth discussion on the Rawan v. Continental Casualty Co. case, recently issued by the Supreme Judicial Court, and how it affects the design community.
Topics included:

  • Protection of design professionals’ reputational interests
  • Impact on the handling of liability claims by professional liability insurers
  • Best practices in responding to claims while maximizing insurance coverage

For a copy of the presentation, 

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Donovan Hatem Clients Prevail!

The Donovan Hatem litigation team was able to achieve a favorable result for our clients, Blue Harvest Fisheries and Bregal Partners, clearing a path for Blue Harvest to close on a $19.3 million dollar transaction involving the purchase of 15 fishing vessels. Richard and Raymond Canastra say the reason they withdrew their competing offer to buy 15 of Carlos Rafael’s groundfish vessels, in New Bedford, Massachusetts, is because the lawsuit filed by Donovan Hatem on behalf Blue Harvest Fisheries scared off their backers.

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January Roundtable – A Look Back at What’s Ahead: A Review of 2019 and recent cases impacting Design Professionals

This new year to look back at what’s ahead!

Join us Wednesday, January 29, 2020,  for this timely case study presentation focused on common legal issues faced by design professionals including:

  • Statute of Limitations
  • Duty to Defend
  • Indemnification
  • Construction Control Affidavits

Speakers:
Jon C. Cowen, Partner, Donovan Hatem LLP

 
David MageePartner, Donovan Hatem LLP

If you would like to register for this event, 

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Massachusetts SJC Rules “Consent to Settle” Provisions Enforceable in Professional Liability Insurance Policies

by Jon C. Cowen
On December 16, 2019, in the case of Rawan v. Continental Casualty Company, the Massachusetts Supreme Judicial Court (SJC) issued an important decision affirming the right of design professionals, and their insurers, to include a “consent to settle” provision in professional liability policies. Donovan Hatem, LLP had filed a so-called amicus (friend of the court) brief in the case, on behalf of the American Council of Engineering Companies of Massachusetts (ACEC/ MA) and the Massachusetts Chapter of the American Institute of Architects (AIA/MA).

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“Fixed Price Affects Engineers Too!” David Hatem Published in Latest Engineering News-Record

In his letter to the editor, David discusses how a previously written article, “Fixing Construction’s Fixed-Price Condundrum,” highlighting that fixed-price procurement used on design-build and P3 projects negatively impacts contractors, has major significance for design professionals as well. David argues that liability issues arising for architects and engineers working on projects with design-build and P3 delivery methods with fixed-price procurement combined with increased unreasonable and imbalanced contractual risk allocation will render these project delivery methods unsustainable.

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David Hatem to Speak at ACEC/NHDOT’s 6th Annual Winter Technical Meeting on Design-Build

David Hatem will be speaking at ACEC/NHDOT 6th Annual Winter Technical Meeting on January 10, 2020. This year’s theme is Design-Build.
David will discuss the Pitfalls of Design-Build as well as participate on a panel exploring Design-Build in New Hampshire.

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October 2019 Roundtable: Design-Build – Professional Liability Risks for Design Professionals

These days, nearly half of the nation’s projects are delivered using the design-build method. It is projected to increase by 18 percent by 2021. There are perceived advantages: The Owner manages only one contract, the engineer and contractor work together as a team, and it is perceived that there are fewer negligence claims against the engineer.
 
Not true. The number of claims against the engineer is increasing and represents a significant concern for the profession.

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The 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.

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September 2019 Roundtable: State of the Union – Design Professional Education

Join us on Thursday, September 5, 2019, as David Hatem leads a discussion with top industry educators to explore the status of education for design professionals.
Topics include:

  • Current trends, including admissions processes, areas of concentrations, adequacy of supply of talent
  • Establishing diversity in the industry through the student body
  • NAAB, P.E and other relevant licensing requirements
  • Current curriculums and their impact
  • New ways of teaching and expanded educational offerings,
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