The Design and Construction Management Professional Reporter: October 2009
Inside this Issue
Analysis of Best Practices in the Management of Design Errors and Omissions
By Justin M. Jagher, Esq.
A recent study requested by the American Association of State Highway and Transportation Officials (AASHTO) focused on cost recovery procedures by individual state departments of transportation (DOT). The purpose of the study was to recommend a model for future handling of cost recovery procedures for Errors and Omissions occurring on highway projects. Although the study concentrates solely on road ventures, the recommendations offered are applicable to a wide range of design professional undertakings, particularly public agency projects.
Recent Court Interpretations of the Economic Loss Doctrine
By Marc A. Cohen, Esq.
The Nevada Supreme Court and the Arizona Appellate Court recently provided two distinct applications of the economic loss doctrine to design professionals. While the Nevada Supreme Court held that economic losses resulting from the alleged negligence of a design professional, in commercial settings, are precluded, the Arizona Appellate Court held that the economic loss doctrine does not apply to an Owner’s negligence claim against an architect.
Design Professionals Dismissed from Two New Hampshire Lawsuits
By John W. Dennehy, Esq.
Two New Hampshire Superior Courts recently dismissed Error and Omission claims against design professionals. In both actions, Donovan Hatem LLP represented the interests of the design professionals.
Georgia Court Upholds the Validity of an Owner-Design Professional Contractual Liability Limitation Provision
By Kristina S. Raevska, Esq.
A Georgia Appellate Court recently upheld the enforceability of a design professional’s limitation of liability contractual provision. At issue was a clause in an architect’s contract, limiting prospective liability to the greater of the amount of its fee or $50,000.00. The court reasoned that parties are free to agree on their contractual terms as long as the terms do not violate public policy. As such, an agreement to limit liability did not violate the public policy against indemnification of a party for damages and injuries caused by its sole negligence.
The Alabama Supreme Court Affirms General Contractor’s Recovery from Testing Engineer
By Samuel R. Pierce, Esq.
The Alabama Supreme Court recently affirmed a finding that a testing engineer was liable to a general contractor with which it had no contract. The Court affirmed that the engineer had negligently failed to perform necessary compaction tests or to inform the contractor that it could not determine the adequacy of the compaction at the pertinent construction site, and that this negligence caused the slab built on the site to crack.
Megaproject Issues and Challenges: Some Informal Remarks
By David J. Hatem, PC
I very much appreciate the opportunity to present some informal remarks about the subject of megaprojects – the theme of a forthcoming book** that I co-edited with my partner, David Corkum, was co-authored by individuals in many of your member firms, and will be published next month by ACEC. All of the proceeds for the book have been donated to ACEC. I plan to comment on two general areas: (1) what inspired the publication, and (2) selected thoughts about the megaproject experience, past, present and future.
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