ConstructionRisk.com Newsletters

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About the Newsletter

All articles in this issue of the ConstructionRisk.Com Report, unless otherwise indicated, are written by J. Kent Holland, a construction lawyer located in Tysons Corner, Virginia, (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners. He is admitted to practice law in Virginia and Maryland.  He is also president of ConstructionRisk, LLC, a consulting firm providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He provides the construction risk management website (www.ConstructionRisk.com), and publishes ConstructionRisk.com Report with 8 to 12 issues per year, as a complimentary newsletter providing case notes, articles and commentary on risk management issues concerning construction projects. He may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. Permission is granted to reprint or republish any article herein that is authored by Mr. Holland, provided that attribution to the author and publication (including website address) is given and the issue is cited in the following format: ConstructionRisk.com Report, Vol. 12 No. 7 (Nov 2010), J. Kent Holland, www.ConstructionRisk.com.

ConstructionRisk.com Report (June 2013)- Current Issue

• A1 - Teaming Agreement Found Unenforceable – Cyberlock Decision
• A2 - Florida Rewrites Rules on Individual Design Professional Liability
• A3 - Arbitration Award Does Not Establish Collateral Estoppel for a Non-Party
• A4 - Subcontractor’s CGL Insurance Carrier Owed No Duty to Defend Suit against Prime Contractor Where Allegations Concerned Economic Losses Claimed from Prime Contractor Construction Defects
• A5 - No Statutory Immunity for Engineer as Agent/Employee of City where Contractor Sued It for Tortious Interference with Contract and Negligence
• A6 - Terminated Contractor Cannot Sue Architect for Tortious Interference with Contract

ConstructionRisk.com Report (May2013)

• A1 - Subcontractor Owed Prime No Indemnity Obligation and Additional Insured Status Availed Nothing
• A2 - Design Professional Owes Duty to Third Party Condominium Unit Purchasers
• A3 - Unlicensed Subcontractor Cannot Recover against Contractor Even if Contractor Knew Sub was Unlicensed When Executing the Contract

ConstructionRisk.com Report (April 2013)

• A1 - Differing Site Condition Claim Barred by Contract Disclaimers
• A2 - Economic Loss Doctrine Did Not Bar Contractor Claim against Architect for Defective Specifications
• A3 - Contractor Permitted to Pursue Tort Claim against Engineer for Allegedly Defective Specs and Failure to Approve Payment Requests
• A4 - No-Damage-For-Delay Clause Enforced Even If Delay Caused by Owner’s Breach of Contract and Arbitrary Actions

ConstructionRisk.com Report (March 2013)

• A1 - Implied Warranty of Habitability Extended Beyond Initial Home Purchaser to Second Purchasers
• A2 - Common Law Indemnity Not Owed by Architect to Developer Where Developer’s Own Alleged Negligence was Subject of Suit by Owner
• A3 - Indemnification Clause in Prime Contract is not Incorporated by Reference into Subcontract Under New York Law in Absence of Express Agreement to Do So
• A4 - Spoliation of Evidence: Contractor Had no Duty to Preserve Concrete I-Beam that Fell and Caused Injuries

ConstructionRisk.com Report (Feb 2013)

• A1 - The “Completed and Accepted Doctrine” Bars Third Party Suit against Architect that Failed to Observe and Report an Obvious, Patent Construction Defect to Owner/Client
• A2 - Certificate of Merit Requirement was Waived by Engineer’s Failure to Timely Push for Dismissal
• A3 - Condominium Association Barred by Economic Loss Doctrine from Suing Consultant for Repair Costs, and Lacks Third Party Beneficiary Rights to Sue the Consultant for Breach of Warranty
• A4 - Engineer Owed Independent Duty to a Construction Contractor to Provide Design Specifications That Do Not Cause Delays and Disruptions
• A5 - Arbitration Results Between Owner and Contractor Have no Collateral Estoppel Affect in Subsequent Litigation Against Architect (Lost Profits not Recoverable in any Event)
• A6 - Subcontractor’s Waiver of Claims Against Payment Bond is Void and Unenforceable
• A7 - Subcontractor’s Waiver of Consequential Damages is Enforced where the Waiver Clause was Incorporated by Reference from the Prime Contract

ConstructionRisk.com Report (Jan 2013)

• A1 - Architect Liable to an Airport Maintenance Person who was Electrocuted While Working on an Electric Switchgear Box that had No Warning Labels
• A2 - Damages Not Recoverable Where Homeowner Failed to Prove the Reasonableness of Remedial Damages Incurred or the Difference-In-Value Damages
• A3 - Project Owner Permitted to Pursue Negligence Claim Based on Breach of Contract
• A4 - The Unrelenting Tide of the Duty to Defend
• A5 - Attorneys Fees Recovered to Enforce Indemnity Agreement

ConstructionRisk.com Report (Dec 2012 Special Issue)

• A1 - Federal Contracts: Attorneys Fees Incurred for REA Preparation and Negotiation are Allowable Says U.S. Court of Appeals in Tip Top Construction

ConstructionRisk.com Report (Dec 2012)- Current Issue

• A1 - Agreement to Indemnify Project Owner for Penalties due to Violations of Americans with Disabilities Act Is Void and Unenforceable
• A2 - Connecticut Supreme Court Reaffirms State's Immunity from Statutes of Limitation
• A3 - Additional Insureds Are Denied Coverage Where Carrier Rescinds Policy of Contractor That Had been Issued Based on Misrepresentations in the Policy Application Concerning the Nature of Contractor’s Work
• A4 - Employee Injured in Trench Collapse Cannot Circumvent Worker’s Compensation Bar Against Suing His Employer Absent Evidence of Intentional Wrong That Created Substantial Certainty of Injury or Death
• A5 - Bidder Cannot Sue Architect for Tortious Interference with a Business Expectancy for Recommending that Project Owner Reject Its Low Bid

ConstructionRisk.com Report (Nov 2012)

• A1 - GC Had No Site Safety Liability Since it did Not Exercise its Retained Control Over the Job Site to Such an Extent as to Affirmatively Contribute to the Injuries of a Subcontractor's Laborer
• A2 - Economic Loss Doctrine Bars Suit against Design Firm Where there is No Privity of Contract Regardless of Whether Designer Might Have Deviated from Industry Standards
• A3 - Injured motorist cannot sue design professional for the alleged negligent design of roadway beyond the statute of repose that is applicable to improvements to real property
• A4 - Common Law Indemnity Allows Surety to Maintain Claim against Architect for Loss Allegedly Caused by Architect’s Negligence
• A5 - Failure to Follow Change Order Request Procedure Results in Design-Build Subcontractors Forfeiting Right to Recover Their Costs for Extra or Changed Work They Performed

ConstructionRisk.com Report (Oct 2012)

• A1 - Economic Loss Doctrine Precluded Negligence Claim against Design-Builder Because Design-Build Project Considered a “Product” not a “Professional Service”
• A2 - Negligence Claim Barred Where Issues Arise Under Contract Performance, and Breach of Contract is the Sole Proper Remedy
• A3 - Statute of Repose Period Began to Run Only When Contractors Substantially Completed the last of their Overall Project Work Rather than the Date When Defective Materials Were Installed and Accepted for Beneficial Use
• A4 - Project Owner Has No Cause of Action Against Subcontractor With Whom it Has No Contract: Economic Loss Doctrine Applies
• A5 - CM Not Responsible for Jobsite safety or Liable to Contractor’s Employee for Injuries

Disclaimer

This newsletter Report is published and edited by J. Kent Holland, Jr., J.D. The Report is independent of any insurance company, law firm, or other entity, and is distributed with the understanding that ConstructionRisk.com, LLC, and the editor and writers, are not hereby engaged in rendering legal services or the practice of law. Further, the content and comments in this newsletter are provided for educational purposes and for general distribution only, and cannot apply to any single set of specific circumstances. If you have a legal issue to which you believe this newsletter relates, we urge you to consult your own legal counsel. ConstructionRisk.com, LLC, and its writers and editors, expressly disclaim any responsibility for damages arising from the use, application, or reliance upon the information contained herein.

Copyright 2013, ConstructionRisk, LLC

Publisher & Editor:
J. Kent Holland, Jr., Esq.
1950 Old Gallows Rd
Suite 750.
Vienna , VA 22182
703-623-1932
Kent@ConstructionRisk.com