September Roundtable: The Eternal Triangle- Constructor Claims Against the Owner: Design Professional “In the Middle” or “Front and Center”?
Consider this relatively simple hypothetical (but very real and frequent) claim scenario:
The Constructor on a design-bid-build project asserts claims against the project owner for substantial additional costs and delays allegedly due to (a) design errors and omissions and (b) owner failure to pay for contract and extra work, and interference with the Constructor’s performance of the Work. (Assume all of (b) is unrelated to alleged performance deficiencies of the Owner’s Design Professional.) The project design was prepared by the Design Professional,
Preparing for a dispute involving liability claims requires careful planning and consideration. Learn whether a dispute is “right” for mediation and get an insider perspective from a panel of experienced mediators. This program will offer recommended steps for a successful mediation with a focus on design professionals, including how to effectively present positions, issues to consider during preparation, and creative solutions to reach a resolution. Along with providing the ingredients for a successful mediation, the program will also address how to reduce time and expense and how success should ultimately be defined in the mediation process.Read More
Inside this Issue:
Colorado Court of Appeals Rules On Implementation Of Settlement Setoff
By: Joseph M. Gesker
Federal District Court Dismisses Cross-Summary Judgment Motions in Copyright Action
By: Z. Michael Gu
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
By: Jennifer A. Lincoln
Recent Case Highlight: Third Party Claims
By: Brian C.
At the center of the debate in every claim against an architect or engineer is — did the professional services provided meet the standard of care? This question arises often on projects when construction costs and change orders start to rise and endanger the ability to build the project for the anticipated construction costs.Read More
PLEASE BE ADVISED: THIS EVENT HAS BEEN POSTPONED DUE TO INCLEMENT WEATHER. THE NEW DATE FOR THIS EVENT IS APRIL 19TH.
At the center of the debate in every claim against an architect or engineer is — did the professional services provided meet the standard of care? This question arises often on projects when construction costs and change orders start to rise and endanger the ability to build the project for the anticipated construction costs.
Come celebrate the new year and our 25th anniversary of the Roundtable Series with a look back at what’s ahead! Join us for a presentation on February 15th to hear some of the most noteworthy professional liability claims handled by Donovan Hatem attorneys.
Eric A. Howard will recap a few of their most interesting cases and highlight critical issues and trends for design professionals.
Climate change considerations are becoming increasingly important in the design process. Project owners are being presented and challenged with a range of decisions regarding design options with respect to climate risk. That field of options and range of corresponding owner decisions present professional liability risk issues for consulting engineers. Join us on January 25th to hear from a panel of experts about what is being done at the state and local levels to address that challenge and to promote best practices in engineering projects.Read More
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.
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.
Climate Change, Sustainability and Resiliency Considerations In Design: Professional Liability Risk Issues for Consulting Engineers
By: David J. Hatem, PC
Climate change, sustainability and resiliency (CCSR) considerations are increasingly becoming important in the design process. Project owners are being presented and challenged with a range of legally permissible decisions regarding design options reflecting greater or less sensitivity to CCSR considerations. That field of options and range of corresponding owner decisions present professional liability risk issues for consulting engineers.
Read the entire article on page 1 in the Fall edition of ACEC Insights.
Please join us on December 7th for Donovan Hatem’s Design Professional Roundtable which will feature a panel discussion on a variety of important subjects relating to assembling a collaborative design team. The panel includes:
- Josh Alston – Risk Manager, Nitsch Engineering
- Edward Hughes – Chief Financial Officer, Shepley Bulfinch
- Chad Wisler – Managing Principal Vanderweil Engineers
Donovan Hatem’s September 7th Design Professional Roundtable will feature a panel discussion on a variety of important subjects relating to professional liability insurance for design professionals. The panel will include underwriters from major professional liability insurers and will be moderated by David Hatem.Read More
The California Legislature recently passed Senate Bill 496 which significantly modifies California Civil Code section 2782.8 (“Code”). The Code, as modified January 1, 2011, provided that any design professionals entering into a public contract or contract amendment had a duty to defend a public agency under an indemnity agreement and pay the public agency’s costs of defense associated with the design professional’s negligence, recklessness or willful misconduct; there was no limitation on the payment of the costs of defense. The Code provided further that all contracts and all solicitation documents between a public agency and design professional were “deemed” to incorporate those indemnity and defense requirements by reference.Read More
In the April 2016 edition of the Design & Construction Management Professional Reporter, Donovan Hatem LLP reported that the Court of Special Appeals of Maryland, Maryland’s intermediate appellate court, issued a ruling that, in the absence of a contractual relationship on a public construction project, a design professional does not owe a duty of care to a contractor for purely economic losses. The Court declined to apply a “privity equivalent” analysis or impose an extra-contractual duty on the design professional since, as is the case with design-bid-build contracts, both the design professional and the general contractor were sophisticated businesses which had ample opportunity to define and allocate their risks in their contracts with the government owner.Read More
The need for design professionals to take climate change, sustainability, and resiliency (“CCSR”) into consideration in project design is growing. Of equal importance is the aspirational goal of educating owners to adopt CCSR objectives in project programs. These objectives need to be achieved in a process that adequately accounts for the management of design professional risks.
Roles in the Design Development Process
Design professionals, through their professional skill, acumen, and experience, provide services (including design) to their clients (typically private and public owners, and sometimes contractors and others) in making recommendations as to how to design a project that will achieve the programmatic objectives of their clients. Those recommendations typically emerge from studies that the design professional provides to its client. The scope and quality of those options and recommendations derive from the scope of services that the client engages the design professional to perform.Read More
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
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 SubcontractRead More
In 2017 the American Institute of Architects (AIA) updated its contract documents as part of its regular 10-year revisions. These well-regarded, industry standard agreements take into account recent developments in the design and construction industry.Read More
Congratulations to David Hatem for his recongition in Best Lawyers 2017 Survey Results New England. David was recognized for his contributions in the area of construction law.Read More
“Good Neighbor Design Practices” refers to a number of specific design considerations relating to permanent work for any given project (your client’s project) that may have external, and potentially adverse impacts and influences on adjacent structures or property.Read More
How do design professionals take into account adjacent external conditions and considerations in the design of their project? Good neighbor design practices require an understanding of the conditions (under, on and above) adjoining properties and structures, as well as identifying risks of damage and meeting the standard of care for structural design. Join us for a program focused on contractual and risk management recommendations for design professionals performing services in this context.Read More
Donovan Hatem welcomes Jennifer Lincoln to the Boston office as an associate in the Professional Practices Group. Jennifer’s practice concentrates primarily on advising and representing design professionals in drafting, negotiating and evaluating contracts. Prior to joining the firm, Jennifer worked as legal counsel and contracts specialist for a full-service construction and architectural firm in the MENA region, where she oversaw contract review and dispute resolution for all services including supervision, construction management, design, infrastructure, sustainability and planning, landscape, and development projects.Read More