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Current Issues From 2008

December 2008, Vol. 10, No. 5

•   Copyright to Documents May be Enforced by Architect Several Years after Normal Passing of Statute of Limitations;

•  Contract Mods With General Release Language Did not Establish Accord and Satisfaction Defense for Government against Impact Claims Not Expressly Released ;

•  General Contractor’s CGL Policy Covers Damages Caused by Subcontractor, Including Damage to the Work (Stucco) as well as Resulting Water Infiltration;

•  Certificate of Payment Did not Render Architect and CM Liable to Surety for Overpayment to Defaulted Contractor  

September 2008, Vol. 10, No. 4

• Contractor did not Owe Indemnity for Economic Loss Incurred by Third Party Resulting from Contractor’s Excavation Work;
  

• Why it Pays to Rely on Outside Counsel and Consultants When Requesting an Equitable Adjustment ;
  

• Limitation of Liability Clause Enforced in North Carolina Case While Similar Clause Rejected in a Georgia Decision ; 
  

• Indemnity Clause in Contract between GC and Subcontractor Enforced to Require Sub’s Insurance Carrier to Defend and Indemnify GC in Wrongful Death Suit Caused in part by Alleged Negligence of GC
  

• Limitation of Liability Clause Enforced in A/E Agreement;.
  

• Indemnification Provisions of AIA Contract Did Not Require Contractor to Indemnify Client for Economic Losses Claimed by Adjacent Property Owner;
  

• Contractor Could Not Recover From Engineer for Interference 

• Fighting Back: Contractors Can Use Tort Law to Challenge Claims of Fraud, Deceit, and Dishonesty
  
•  Fraud Count Dismissed for Failure to State a Claim & Plaintiff Can’t Avoid Contract Terms by Claiming it was Unaware of the Term  

• Professional Liability Risks in BIM Applications:  If BIM is Here to Stay, How Can we Insure Errors and Omissions?

• Contractor not Entitled to Recover from Subcontractor who Met Specifications Even though Project Failed to Function as Intended;

• U. S. Needs Immigrant labor and Immigration Reform;

• Pitfalls of Using Collateral to Obtain Bonds

Issues From 2007 (Eight Total)

December 2007, Vol.9, No.8

• Attorneys Fees Recovery Granted by Court 

• Building Information Modeling: The Wave of the Future? 

• Surety Cannot Maintain Negligence Action against A/E for Alleged Failure to Adequately Inspect and Supervise Contractor’s Work

• Summary Judgment Granted Based on Limitation of Liability Clause  ;
• Construction Manager not Liable for Subcontractor Laborer’s Injuries Since it did not Control How Subcontractor Performed the Work;
• Defects in Contractor’s Own Work may be Covered by CGL Policy;

• Copyright Protection for Design Professionals

September 2007, Vol.9, No.6

• No Damage for Delay Clause Enforced;
  
• OSHA and Multi-Employer Worksite Safety Responsibility Significantly Changed;
  
• Repair of Subcontractor’s Defective Work on Concrete Slab
  not Covered by CGL Policy;
  
• Defective Roof Work Excluded from CGL Coverage but damage caused by defective roof to  property inside building is covered (Contractual Liability Exclusion not Applicable) ;
  
• Contractor’s Failure to Obtain Requisite Signatures
  on a Change Order Bars Breach of Contract Claim

• Liability of Construction Managers/Design Professionals to Injured Employees of Contractors:  Pennsylvania Supreme Court Takes Another Look;

• Performance Specifications:  Who has what Duty Concerning Design and Successful Performance of Completed Work?   (Plus Insurance Coverage for Defective Work);

• Subcontract Indemnification Clause did not Require Sub to Indemnify Prime for Damages Caused by Prime’s Own Negligence

• Turnabout at Trial:  Contractor Ordered to Pay $50 Million for Fraudulent Claims;
   
• Design Professional Decreed to be Fiduciary of Project Owner;  
  
• Entitlement to Contract Reformation to Recover Inflation Costs Exceeding Inflation Factor Specified by GMP Contract  ;
  
•  Women Construction Owners & Executives Adopts an Aggressive Agenda ;
  
• BIM:  The Professional and Legal Ramifications – 
  A Voyage into the Unknown ;
  
• Risk Managers for Two Large Contractors Wanted

• Why Project Owners Aren’t Made Additional Insureds Under a Design Professional’s Errors and Omissions Policy
• New TxDOT Consultants Errors & Omissions Procedures:
  Design Professionals and Insurers Beware!  

February 2007, Vol.9, No.2

• Why Should I Pay for Your Mistakes?  
  Indemnification: Addressing the Contract Language Details;

• Pollution Exclusions in CGL Policy Bars Coverage for 
  Carbon Monoxide Poisoning  
• Damage from Fill Material Eroding into Creek Excluded from Coverage by Pollution Exclusion 

• Presenting Delay Claims:  Where’s the Logic?; 
• No CGL Insurance Coverage for Defective Work  ;
• Limitation of Liability Clause Enforced;  

Issues From 2006 

• Arbitration Clause in AIA Design-Build Subcontract Bars Third-Party Claim in Litigation; 
• Architect’s Admissions in Settlement Agreement used against Him by State Board of Examiners to Revoke his License
• Additional Insured is not Covered for Sole Negligence
• Court Finds Coverage for Construction Defects Despite Exclusions to the Contrary

• Construction Manager not Responsible for Contractor’s Injury

• Third-Party Claim for Indemnification Survives SJ Motion  

• Mold Excluded in Homeowner’s Policy is not Covered as an Ensuing Loss of Leaking Water

• What is Intended by "Collapse" Covered by Insurance Policy?

• New Law Restricts Scope of Indemnity Clauses in Subcontracts
  for Residential Construction in California

• When is Landowner Liable to Independent Contractor's Employee for Site Safety?

• Contractor has Duty to Seek Clarification of Ambiguous Contract Terms

• Texas Mechanic’s and Materialman’s Liens A Complex Process Just Got More Complex

• Construction Risk Management Using Event Chain Methodlogy

• Pollution Exclusion of GL Policy Applied to Deny Coverage for Dry Cleaning Chemicals  

• Insurers Bear Environmental Damages and Defense Costs on Pro-rata basis Under Consecutive CGL Policies

• Contractor's Express Warranty Takes Precedence Over Owner’s Implied Warranty of Specifications
• Washington State DOT’s application of Affirmative Action Goals Held Unconstitutional
• Federal Strings Attached to Faith-Based Grants

• The Fair Housing Act: Discrimination in Multi-Family Residential Development, Construction, and Design

• Defective Workmanship Exclusion Bars Coverage for Falling Walls

• OSHA Not Required to Get Warrant to Conduct Surprise Inspection

• Design-Build Lessons Learned 2004

• aeProNet - Risk Management and Contract Guide for Design Professionals

Issues From 2005 

• Book Review: Design-Build Lessons Learned (2004 Edition)

• Ambiguity in Design-Build Contract Specs Interpreted in Favor of Contractor;

• Contractual Jury Waivers Held Invalid by California Supreme Court;

•  Contract & Risk Management Guide;

• Accord and Satisfaction Barred Contractor Claim for Additional Compensation

• Recent California Decision Erodes Certainty of 10-Year Statute of Repose Against Construction Defect Claims

• A Risk Adjusted GO-NO-GO Decision Process

• Waiver of Subrogation Enforced, Denying Insurance Company Recovery against Contractor it Alleged was Grossly Negligent

• New California Law Prohibits Type I Subcontractor Indemnity in Favor of Residential Builders

• Proving Constructive Acceleration Claims Can be Difficult for Contractors

• Don’t Touch That “Forward” Button!  Attorney-Client Privilege in an E-Mail Age  

• Contractor Complaint against Engineer Dismissed for Failure to File Expert Identification Affidavit

• Contractor Forfeited Right to Payment by Performing Work without a License

• Hurricane Katrina’s Impact on Existing U.S. Government Contracts

• New Book -- Risk Management & Contract Guide for Design Professional

• Store Owner not Liable for Injuries Sustained by HVAC Contractor's Employee

• DeFacto Takeover:  Are a Surety's Rights Protected?

• Indemnity Clause Requires Subcontractor to Indemnify Prime for Injuries Arising out of Prime's Own Negligence

July/Aug, 2005 - Vol. 7, No. 4

• Subcontractor forfeits right to arbitration by filing demand untimely

• Faulty Workmanship Coverage Under CGL Policy

• Architect Required to Review Adequacy of Engineer’s Structural Report   Before Proceeding with its Design Services

June, 2005 - Vol. 7, No. 3

• Using Negotiation, Mediation and Arbitration to Resolve Construction Disputes.

• Contractor Suit Dismissed for Failure to Follow Claim Procedures of Contract

• Framing professional negligence claim as breach of contract does not get around shorter statute of limitations period for negligence claims

• Managing Contract Changes

•  Contractors May Now Bring Direct Action for Economic Losses Against Design Professionals in Pennsylvania            
•  Pollution Exclusion in D&O Policy Applied to exclude Coverage for Alleged Business Torts
•  Project Manager Required by Fiduciary Duty to Owner to agree to Settlement with a Supplier Contrary to its Own Interest. 

February, 2005 - Vol. 7, No. 1

• Summary Judgment against Plaintiff who Failed to Provide Factual Support that she could Meet Burden of Proof of Negligent Design          
• Design Professionals Not Subject to Liability under Title III of the ADA and Washington ’s Law against Discrimination
• Project Manager Required by Fiduciary Duty to Owner to agree to Settlement with a Supplier Contrary to its Own Interest. 

Issues From 2004 

• Waiver and Release Language in Change Order Bars Further Recovery

• Arbitration Consolidation was Inappropriate

• Failure to Request Change Order Bars Contractor Recovery for Excess Units

• Do You Really Want to Cash that Check?

• Indemnification Clause Unenforceable if Negligent Parties Are Indemnified

• Insurance Carrier not Required to Treat CM as Additional Insured Under Contractor’s Policy

• Mold Loss Excluded Under Homeowner’s Policy – Summary Judgment for Carrier

• Personal Injury Case against Engineer Dismissed for Lack of Expert Testimony

• Contractor May be Sued for Lost Profits Arising out of Breach of Contract  

• Limitation of Liability Clause Protecting Owner is Not Voided by Owner's Breach of Contract or Alleged Bad Faith
• Statute of Limitations Applicable to Negligence Actions Rather than Breach of Contract Applied to Dismiss Action against Architect

• Standards Needed for Mold Exposure, Testing and Remediation

• Engineer Had No Duty to Warn General Contractor’s Employee of Danger

• No Liability Under New York Labor Law for Project Owner and Lender Where Worker’s Injuries Attributed Solely to His Own Fault
• Multi-Million Dollar Claim Invalidated by Court Due to Contractor’s Failure to Give Timely Notice 

 Issues From 2003 

• Broad Additional Insured Endorsement Entitles Contractor to Recover Damages under its Subcontractor’s Primary and Umbrella Policies

• Preventing Mold-Related Nondisclosure Claims

• Court Rejects Employees’ Claim against Employer for Fraudulent Concealment of Mold

• Incident Reports are Held to be privileged

• Absent Contractual Allocation of Risk of Delay, Subcontractor Cannot Recover Delay Damages from General Contractor Who was not Responsible for their Occurrence
• Punitive Damage Award Against Insurance Company Reversed by Supreme Court as Excessive

• Architect’s Decision Final where Contractor Failed to Satisfy Arbitration Filing Requirements

• Testing Your Ethical Barometer

• Sureties Walk a Fine Line Between Contractor Default and Claim Investigation
• Equitable Adjustment Allowed for Deductive Change

• Boilerplate Can Burn!
• Accord and Satisfaction Language Barred Contract Claim
• Differing Site Conditions, Defective Specifications: One Coin, Two Sides

• When to Stop Work for Non-payment  

• Insurance Company that Incorrectly Denied Pollution Coverage did not Act in Bad Faith when it Failed to Defend its Insured

• Liquidated Damages Clause and Waiver of Consequential Damages Clause Effectively Cap Damages Available against Design-Builder. 
• No Warranty of Design

• Highway Contractor Protected by State Immunity Statute
• Contractor Entitled to Rely Upon Government's Implied Warranty of Specifications

Issues From the Year 2002 

• Spiritual Journey of a Construction Lawyer
• Contractor not Responsible for Costs of Changes Caused by Building Code Violations Contained in Owner’s Drawings
• Electronic Discovery Issues – An Emerging Challenge
• Copyright Protection Granted to Land Surveyor’s Site Plan

• Anti-Indemnity Statute does not Void Additional Insured’s Coverage
•  Mold-Related Construction Defect Claims: Who is Liable for Alleged Damage Caused by Exterior Insulation Finishing Systems (“EIFS”) 
• Statute of Repose Applies to Contract and Negligence Actions
• Review of Ava Abramowitz book “Architect’s Essentials of Contract Negotiation” 

• Copyright Infringement of Design Documents
• Pennsylvania Jury Rejects Expert Testimony and Claim for Personal Injury Resulting from Mold
• Requirements of Expert Affidavit of Lawsuit Merit

• Contractors Receive Criminal Sanctions for Failing to Dispose of Canister of Fumigant Found at Jobsite 
• Don’t Let Your E-records Turn into Smoking Guns
• Stemming the Rising Tide of Insurance Costs

• General Contractor Liable for Injury to Independent Contractor’s Employee
• Managing Killer Clauses in Construction Contracts: Part II
• Suspension and Debarment: Guilt by Affiliation

• Knowledge of unsafe work-site conditions Does Not Establish Engineer Liability for Injuries to Construction Laborer
• Managing Killer Clauses in Construction Contracts: Part I

• Surety Update
• Do Contractor’s Warranties Ever Expire?

• 2002 Insurance Market Forecast: Construction

• Risk Management Workshop to be held in Atlanta
• Surety Fails to Pay on Bond for Default Termination
• Government Warranty of Performance-Type Specifications

• Bid Bonds on Federal Contracts - Just the Fax
• General Liability Subsidence Exclusion Is Major Concern
• Web-Based Project Management Systems - Virus Security Briefing

• Risk Management Workshop to be held in Atlanta
• Surety Fails to Pay on Bond for Default Termination
• Government Warranty of Performance-Type Specifications

Issues from the Year 2001 

• Surety Hit with Substantial Punitive Judgment

• Violation of New York City Ordinance Does Not Constitute Negligence Per Se

• Architect Cannot Sue Construction Manager for Negligence

• Alert: Are Terrorists Requesting Copies of Building Plans?
• Fee Offset May be Insured Claim
• No Damage for Delay Clause Not Enforceable
• Architect May be Liable to Unpaid Supplier

September 2001 - Vol.3, No.6

• A/E Potentially Liable to Contractor for Defective Design Documents.
• State Board Improperly Penalized Engineer that Performed Services Overlapping Those of Architects.
• Mold Problems Increase: Is Coverage Available?
• Architects Not Liable Under ADA

• Statutes of Repose Applicable to Construction Industry.
• Architect Wins Entitlement to Damages, but Recovers Nothing, Because it Failed to Keep Adequate Cost Records.
• Failure to Attend Pre-bid Site Visit Proves Fatal to Differing Site Conditions Claim.
• Insurance Carrier Had No Duty to Defend Engineer in Wrongful Death Action Based on Trench Collapse.

• Engineer Not Liable for Breach of Implied Warranty of Design   

• The Ball’s In My Court (Because I Drafted the Contract) and I’m the Referee (Or Chief Executioner)

• No Coverage Under CGL Policy for Loss Arising Out of Product Containing Asbestos

• Contractor Terminated for Default for Failure to Adequately Respond to Cure Notice  

• Expert Affidavit Required with Complaint

• No Damage For Delay Clause Not Enforced

• Statute of Repose Passes Constitutional Test

• Zurich Insurance Offers New Website

•  Risk of Differing Site Condition Not Shifted to Contractor

• A/E Not Liable for Negligence or Negligent Misrepresentation Without Expert Testimony

• Substantial Completion Not Granted Until Fire Alarm System is Successfully Tested

• Additional Insured Entitled to Be Defended Under General Contractor's Completed Operations Coverage

• Contractor Wins Claim on Implied Warranty of Specifications  

Issues from 1999 and 2000 listed below in descending order:
(Nine published in 1999 and Twelve published in 2000)

April 1999 - Vol. 1, No. 1

• Judgment Against Architects Reversed Due to Lack of Expert Testimony

• Architect not liable for premises injury without evidence that design violated the standard of care 

May 1999 -  Vol. 1, No. 2

• Contractor sues engineer for misrepresenting site conditions

• Indemnification language found ambiguous and unenforceable

• Economic loss doctrine bars owner's claim against subcontractor

June 1999 - Vol. 1, No. 3

• Change Order Bars Owner's Claim Against A/E

• No A/E duty to Subcontractor to Assure Payment Bond Procured or That General Contractor Paid Him Prior to Progress Payment Being Approved

July 1999 - Vol. 1, No. 4

• Contractor Required to Indemnify Negligent Party

• "No-Damage-for-Delay" Clause Unenforceable where City Withheld
  Superior Knowledge about Site Conditions and Caused the Delay

Aug. 1999 - Vol. 1, No. 5

• Limitation of Liability in Agreement Not Applicable to Causes of Action Arising Out of Contract Addendum

• Reciprocal Waiver of Subrogation Bars Insurance Company Claim Against Contractor for Fire Damage to Building

Sep. 1999 - Vol. 1, No. 6

• Inspection of subcontractor's Word Does Not Make Owner and Prime Contractor Liable for Safety

• Miller Act Surety Requirements Amended

• Environmental Consultants Are Sued for Cleanup Costs

• Recovery of Attorneys Fees: Indemnity Obligation

Oct. 1999 - Vol. 1, No. 7

• Year 2000: Implications For the Construction Industry

• ISO 9000: What Is It and How Will It Impact You?

Nov. 1999 - Vol. 1, No. 8

• Design-Build: Does It Guarantee Project Success?

• The Catastrophe and Waiver of Subrogation

• Delay Claims in Construction Cases: Common Pitfalls
• Managing Conflicts of Interest

• Architect Has No Warranty Obligation to Condo Association
• Contractor Not Liable for Emotional Distress
• How Jargon Complicates Construction

• Does Project Monitoring Make You Liable for Job Site Injuries?
• Sovereign Immunity Does Not Bar Contractor Claim for Contested Work
• Insurance Company Improperly Refused to Defend Additional Insured Under Contractor's Policy

• A/E Relied on Owner to Test Old Tank before Incorporating into New Project: Potential Liability for Death Caused by Tank Rupture
• Contractor Criminally Indicted for Death of Workers
• Copyright infringement by Reuse of Architect’s Plans
• A/E Contract Established Time Limit for Suit

• Contractor Not Bound By Architect’s Decision on Claim
• Cost of replacing defective work excluded under Builder’s Risk Policy
• Defective Workmanship Potentially Covered By Insurance
• Statute of Repose for Construction Projects Time-Bars Claim that could also be Asserted as Products Liability – with Longer Statute of Limitations Period

• No Excuse for a Bad Contract
• Insurance Recovery Forfeited by Failure to Report Damages Before Undertaking Repairs
• No Coverage Under CGL Policy for Contractor’s Professional Opinion
• Owner Not Liable For Site Safety

• No Compensation owed to contractor who performed extra work without written authorization
• Additional Insured Endorsement Limited
• CGL Policy does not cover contractor’s defective
• Liquidated damage assessment against contractor

• Contractor may sue construction manager for negligent misrepresentation and supervision.
• Architect may legally limit time period for being sued, but may be equitably estopped from enforcing the limitation.
• Cost of replacing contractor’s defective workmanship not covered by CGL policy.

• Continuing Education Made Easy via the Web.
• _{Quantum Meruit Recovery by Contractor against Cher}
• _{Contractor can’t recover insurance for damages caused by its breach of contract}
• OSHA Stanards create no liability for engineer and contractor for injuries to non-employee

• Differing Site Conditions: Can You Recover Increased Costs?
• Role of Architect in Controlling Construction Costs
• Editors Note