The Design and Construction Management Professional Reporter: July 2007
Inside this Issue
New Hampshire Supreme Court Rejects Plaintiff’s Argument To Apply Both The “Special Relationship” And Negligent Misrepresentation Exception To The Economic Loss Doctrine
The New Hampshire Supreme Court recently discussed the application of the economic loss doctrine and clarified New Hampshire’s recognized exceptions to the doctrine. In affirming the district court’s decision granting the defendant’s motion to dismiss, the Court held that neither the “special relationship” exception nor the negligent misrepresentation exception to the economic loss doctrine applied given the facts of the case. Plourde Sand & Gravel Co. v. JGI Eastern, Inc., 917 A. 2d 1250 (N.H. 2007).
Limitation Of Liability Provisions May Not Be Used To Determine Good Faith Settlement Motions
The Court of Appeals of the State of California, Fourth Appellate District, recently affirmed the validity of “limitation of liability” clauses in contracts and held that the clause may not be used against third parties to determine if a good faith settlement was warranted. The court also potentially exposed design professionals to liability for economic damages from parties without contractual privity.
New Mexico Court Rules That Excess Insurance Carrier Must Defend A Design Professional Even Though The Primary Insurer’s Policy Limits Had Not Yet Been Reached
In Design Professionals Ins. Co. Inc. v. St. Paul Fire & Marine Ins. Co., 123 N.M. 398 (1997), the Court of Appeals of New Mexico held that an excess insurance carrier must defend a design professional even though the primary insurer’s limits have not yet been reached.
Federal Claims Court Rules That Architect’s Imperfect Plans Did Not Breach Duty or Contract
On April 29, 2005, The United States Court of Federal Claims issued an important opinion defining the standard of care owed by a design professional in fulfilling the terms of a U.S. government contract. In C.H. Guernsey & Co. v. United States, 65 Fed. Cl. 582 (2005), the court determined that the architect did not breach its professional duty of care or the implied warranty under its contract simply because its design was costly or difficult to implement.
Federal Claims Court Ruling Suggests That A Plaintiff’s Claims For Breach Of Contract Specifications And Differing Site Conditions May Be Combined
By Melissa S. Lee, Esq.
In Orlosky Inc. v. United States, 64 Fed. Cl. 63 (2005), the United States Court of Federal Claims considered whether a plaintiff could maintain separate claims for damages based on differing site conditions and for breach of warranty of contract specifications, where the alleged defect in the specifications was the failure to disclose the differing site condition. Because the plaintiff asserted additional claims for defective specifications based on facts other than the differing site condition, the court denied the defendant’s motion for summary judgment on this issue.
Immigration Impact On Employment Practices
By Gwen P. Weisberg, Esq.
In light of the current immigration climate, and the resulting increase in workplace audits, all employers should take the time to determine whether they are in compliance with all employee documentation requirements. Although often overlooked, immigration considerations may significantly affect a company’s employment practices and, for those companies failing to take immigration seriously, the results can be devastating. These requirements are equally applicable to private individuals who may employ non-immigrant aliens to perform household maintenance and care services.
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