The 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

By James L. Soucy, Esq.

A Resident Engineer Providing Inspection Services Owes No Duty to a Subcontractor

By James M. Boyce, Esq.

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The Art of Mediation

An infographic offering strategic mediation planning considerations.

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Donovan Hatem donates to the Salvation Army

Salvation Army
In the spirit of the holiday season, Donovan Hatem has donated to the Salvation Army.

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Two Partners Named to 2015 Super Lawyers List

Congratulations to David J. Hatem and Kenneth B. Walton for their inclusion in the 2015 Massachusetts Super Lawyers List. David was recognized for his work in Construction Litigation and Ken received the award for Civil Litigation.

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2015 in Review: Trending Topics, Strategies and Best Practices for Design Professionals

2015 was a busy year for the architecture, engineering and design industries. Join us as we discuss some of the most interesting questions posed by design professionals this past year and provide best practice strategies for the future.

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Relational Risk Allocation in D-B and P3s

Understand the various risks assumed by Design-Builder, Owner and Engineer Subconsultant in Design-Build and Public-Private Partnerships.

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How Ten Key Provisions in a Strong Design Professional Agreement Can Prevent or Terminate a Lawsuit

Donovan Hatem invites you to join us for a discussion led by Ken Walton, on AIA agreements and key provisions in a strong design professional agreement that can provide protection to design professionals. Effective use of these provisions can shield a design professional from potential legal liability or assist in terminating litigation after it has started.

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Reducing Our Carbon Footprint

With the holidays fast approaching Donovan Hatem is already considering the upcoming season and our commitment to reducing our carbon footprint.

Planting Trees

This year the firm will be planting at least 50 trees with our company’s seasonal e-card. This measure will offset about 50 tons of CO2 over the lifetime of the trees. eCO2 Greetings planted 10 trees on behalf of Donovan Hatem last year across a variety of registered forest restoration schemes, and this year we have increased our efforts to diminish the effects of climate change.

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Risk Management and Contractual Strategies for E-Communications and Construction Site Accidents

Risk Management and Contractual Strategies for E-Communications and Construction Site Accidents

Donovan Hatem invites you to join us for our next Design Professional Roundtable discussion led by Eric A. Howard on how design professionals can manage risk and develop strategies for dealing with issues and claims that may arise as a result of information transmitted in electronic communications such as e-mail, marketing materials and social media. This program will also address how design professionals can manage risk and develop strategies for dealing with indemnification rights, responding to interviews, and OSHA. Attendees will learn about standard contractual provisions including means and methods, site safety, defense and indemnification and additional insured protection for design professionals.

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An Engineer’s Professional Liability Case in New Hampshire

By Michael Coghlan

Design Professionals Do Have Choices
In a recent case against an Engineer performing residential home inspections in the State of New Hampshire, the court dismissed the case and awarded attorney’s fees against the Plaintiff Homeowner.

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Legislative Initiatives Impacting Design Professionals

Join us for our next Boston roundtable on Thursday, October 22. This panel discussion will be focused on the latest legislative actions impacting design professionals.

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Opportunities for Infrastructure Reform: Improving America’s Procurement System

Recently, the Brookings Metropolitan Policy Program hosted the first of a series of workshops, with support from insurance company AIG, focused on identifying the biggest challenges and opportunities for America’s procurement system for infrastructure and the built environment. Leveraging real world experience from practitioners in government, finance, insurance, law, and construction, Brookings identified the top four opportunities for smart infrastructure reform. Contributing his knowledge of the industry, Donovan Hatem attorney David J. Hatem was one of the participants in the Brookings workshop.

For more information on the research, read the entire Brookings report, Opportunities for Infrastructure Reform: Improving America’s Procurement System.”

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Requirements for Establishing a Design Professional’s Liability

By Lauren M. Ippolito

In a recent decision by the New York Supreme Court in June 2014, the Court affirmed that expert testimony is a necessity in a case where is it alleged that a design professional failed to adequately perform its services or improperly performed its work pursuant to a contract.

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Recent CM-At-Risk Massachusetts Supreme Judicial Court Decision – What Does It Mean for Project Participants?

On September 2nd, the Massachusetts Supreme Judicial Court (SJC) decided Coghlin Electrical v. Gilbane Building Company v. DCAMM (referred to here as “Coghlin“) involving an issue of first impression in Massachusetts (and throughout the United States), and one of critical importance to the successful utilization of the construction manager-at-risk delivery method (CMR).

Read David J. Hatem, PC‘s entire article published in ACEC Insights, Summer/Fall 2015.

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2015 ACEC Fall Conference

Don’t miss David Hatem at the 2015 ACEC Fall Conference!

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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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The Mechanic’s Lien – Are You Protected?

Gregory Paonessa recently had his article “The Mechanic’s Lien – Are You Protected?” published in Thomson Reuters’ Legal Handbook for Architects, Engineers and Contractors: Issues in Construction and Technology, Vol. 31, 2014/2015.

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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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Construction Manager at Risk May Have Design Risk According to Mass. SJC

Yesterday, September 2, 2015, the Supreme Judicial Court released its Coghlin v. Gilbane opinion. Note, the case has been remanded to the Superior Court for proceedings consistent with the SJC’s opinion.

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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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