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Current Issues From 2008

• 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 

• A/E Would be Entitled to Compensation for Additional Services Due to Contractor Delay if it Hadn’t Failed to Prove Damages

• Contractor Recovers More in Quantum Meruit than it Would Have Under Void Contract

• Contractor Recovers as Additional Insured Despite Certificate of Insurance Being Issued After Date of Accident

• Documentation in the Age of  Web-Based