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Inside This Issue:

  • 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

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Article 1

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Limitation of Liability Clause Enforced

By: J. Kent Holland, Jr.

Where the developer of an apartment complex brought suit against a professional engineering firm, seeking damages allegedly resulting from the negligent design of the storm water drainage system for the complex, the court granted a partial summary judgment based on a limitation of liability (LoL) clause in the engineer’s contract.  The engineer’s motion contended that its damages were limited, pursuant to the terms of the parties’ contract, to the amount of fees paid to it by its client.  On appeal, the summary judgment was sustained, with the court rejecting numerous and varied arguments by the plaintiff that the LoL violated public policy and was unenforceable.  This decision succinctly addresses the public policy issues and the right of parties to contract as they wish.

After the apartment complex was completed in accordance with the designs and specifications of the defendant, Planners & Engineers Collaborative, the plaintiff, Lanier, observed erosion, subsidence, and pavement settling and cracking on the property.  Lanier subsequently had the storm drainage system repaired and modified to increase its water capacity.  Lanier sued PEC seeking damages for the alleged negligent construction of the storm water drainage system, breach of express contractual warranty, and litigation expenses.  With its answer denying liability, PEC also counterclaimed for it attorneys fees in defending the litigation.

PEC subsequently filed a motion for partial summary judgment, seeking to limit the damages Lanier could recover in the lawsuit to the amount of fees it paid PEC, pursuant to the parties’ agreement.  The trial court concluded that the limitation of liability clause  contained in the agreement was enforceable and granted PEC’s motion.  The plaintiff alleged it had already spent  $250,000 to repair the drainage system and anticipated expending additional sums, possibly bringing the total damage amount to over $500,000. But since the fees paid to PEC amounted to $80,514, this was the limitation of liability (LoL) that was enforced by the court pursuant to the contract.

The plaintiff argued that the LoL clause violated public “because it attempts to insulate a licensed professional engineer, whose work inherently and necessarily impacts upon public safety and welfare, from the full consequences of its failure to exercise reasonable care and skill in the performance of its practice.”  The court disagreed.

In explaining its reasoning, the court began by reiterating the axiom that “unless prohibited by statute or public policy [,] the parties to a contract are free to contract on any terms and about any subject matter in which they have an interest.” In this case the court found no specific statute prohibiting a contractual agreement to limit damages, and therefore found no conflict between the damages limitation clause and the public policy of the state.

One of the principal cases relied upon by the plaintiff was a decision in Emory University v. Porubiansky holding that an exculpatory clause contained in a contract for services between a patient and a dental clinic was void as against public policy.  In that case, however, the patient’s release was as to all claims and damages of any kind and amount.  In contrast, the court found significant that in the instant case the contract provision at issue did not release PEC from liability for Lanier’s claims but “simply limited Lanier’s damages to the amount of fees paid under  the contract.”  For this reason, the court concluded that the Porubiansky holding cited by the plaintiff was inapplicable.

Another argument by the plaintiff was that  “allowing professional engineers to limit their liability to the amount of their fee is contrary to sound public policy because it would remove an incentive to exercise care in practicing their profession.” This argument, said the court,  is without merit because, “The damages limitation clause at issue merely limits the amount of damages the engineer might owe to Lanier.  It does not, however, preclude recovery against PEC by a third party for personal injuries resulting from PEC’s design or construction.”

Using the kitchen sink approach to legal argument, the plaintiff tried yet another statute, arguing that the damages limitation clause violates a Georgia statute that provides in relevant part that:

“[an] … agreement relative to the construction, alteration, repair, or maintenance of a building structure … purporting to indemnify or hold harmless the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee, his agents or employees, or indemnitee is against public policy and is void and unenforceable.”

In rejecting this argument, the court found that the  damages limitation clause in the instant case does not exculpate PEC from any wrongful conduct or release them from liability, but “ merely limits the amount of damages Lanier may recover from PEC.”  For this reason, the court held that the clause did not violate the statute.

Finally, in this author’s opinion, going beyond the kitchen sink and into the slop basin, the plaintiff argued that the limitation of liability clause in the parties’ contract constitutes a liquidated damages penalty prohibited by Georgia law.  It took the court only a few short paragraphs to punch holes through this argument.  As stated by the court, the contention was without merit because “the parties did not agree to a fixed measure of damages.  Instead, they agreed to a limit on the amount of damages Lanier could recover from PEC.  Though they will be capped, the amount of damages, if any, will have to be determined by a trier of fact.  Thus, the contract term is not an unenforceable penalty and Lanier’s argument on this basis fails.”  For these reasons, the summary judgment was affirmed by the court in Lanier at McEver, L.P. v. Planners & Engineers Collaborative, Inc., 646 S.E. 2d 505 (2007).

Comment: As this case explains in just a few short pages, limitation of liability (LoL) clauses are not disfavored by courts.  Courts in most jurisdictions honor the intent of a contract.  An LoL clause is not a pure exculpatory clause relieving a party of any and all liability.  It merely places a cap on the extent of the liability.  Design professionals and other professional services consultants have long used these provisions in their contracts.  The small fee or profit margin that a consultant receives for its services on a project does not justify opening itself up to unlimited liability. For example, it would seem unrealistic for firms that perform environmental site assessments (ESA’s) and property condition assessments (PCAs) for just a few thousand dollars each (with a profit of only a few hundred dollars) to perform their services without limiting their liability – especially in our increasingly litigious society in which their clients seem to have a propensity for filing multi-million suits against them.

In recent litigation in the state of Maryland, I defended a firm that was sued for alleged negligent performance of an ESA and PCA.  The plaintiff also included counts based on allegations of fraud and negligent misrepresentation. Based on an LoL clause that limited liability to $50,000 or fee (whichever was higher), we moved for partial summary judgment on the breach of contract count and on the negligence counts.  This was granted by the court.  This was done prior to incurring the expense of taking depositions. The court also dismissed the fraud and negligent misrepresentation counts based on a lack of pleading sufficient facts to support those counts of the complaint. After obtaining this partial summary judgment we filed an answer to the balance of the complaint remaining and, similar to case discussed in this case note, we countersued the plaintiff for attorneys fees.

Since we were unable to obtain a reasonable settlement offer after the partial summary judgment, we had to proceed with depositions.  After these were completed, we moved the court for total summary judgment to dismiss the plaintiff’s case.   Before the court decided that motion, the parties agreed (with little settlement money changing hands) to dismiss the complaint and counter-claim. What is most frustrating, however, is the amount of time and expense required to go through the legal process to obtain the result.  In a future issue of this Construction Risk.com Report, look for an article that I am considering writing on the subject of the possibility of filing defamation actions against plaintiffs for making unsubstantiated allegations of fraud against design firms.  With plaintiffs increasingly reaching beyond the  kitchen sink to allege fraud against consultants, it may be reasonable and appropriate to pursuing defamation actions against those who file fraud allegations, when the true action is based merely on breach of contract or negligence.

About the author: Kent Holland is a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects – including assistance with contract drafting, review and negotiation; change order and claims analysis (preparation or defense); risk management advice concerning insurance coverage – including assistance with negotiating and drafting the terms and conditions of policies and endorsements, advice to insurance underwriters; guidance to those procuring insurance; change order and claim preparation, analysis and defense; contract preparation; contract review and contract negotiation.  Mr. Holland is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 9, No. 7.

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Article 2

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Construction Manager not Liable for Subcontractor Laborer’s Injuries Since it did not Control How Subcontractor Performed the Work

By:  J. Kent Holland, Jr.

Where a construction manager, Tishman, only exercised general supervisory powers and did not control the means and methods by which a subcontractor performed its concrete work, the construction manager had no liability for injuries sustained by a laborer of the subcontractor.  The factual background involved a laborer employed by a concrete subcontractor  working on a construction project near Times Square.  He was injured when a pressurized concrete delivery pipe whipped around and caused him to fall.  The incident occurred while several coworkers were attempting to remove an obstruction from the pipes. In the case of Hughes v. Tishman Construction Corp., 836 N.Y.S. 2d 86 (2007), the laborer claimed Tishman negligently supervised the work. Tishman moved for summary judgment dismissing plaintiffs’ causes of action under Labor Law §  200 and for common-law negligence, on the ground that it did not control the means or methods of the work performed by Hughes.  The trial court denied the motion for summary judgment because it deemed there to be questions of fact to be determined by a jury.  This was reversed by the Appellate Division, First Department,  of the New York Supreme Court, which held Tishman was entitled to summary judgment.

Summarizing the existing law in New York, the appellate court stated that where a claim under Labor Law §  200 is based upon alleged defects or dangers arising from a subcontractor’s methods or materials, liability cannot be imposed on an owner or general contractor unless it is shown that it exercised some supervisory control over the work   “General supervisory authority,” said the court,  “is insufficient to constitute supervisory control;  it must be demonstrated that the contractor controlled the manner in which the plaintiff performed his or her work, i.e., how the injury-producing work was performed.”

Deposition testimony demonstrated to the court’s satisfaction that Tishman’s project superintendant did not act in a manner to control how the subcontractor performed its work.  The court explained that Tishman’s project superintendent, testified that his job was to “[o]versee all job site activities as it [sic ] pertains to the schedule and conformance of plans and specifications,” and “monitor[ ] the [project’s] milestone schedule [i.e., schedule of all activities from start to completion of project].”  He also testified that Tishman did not control the means or methods of the subcontractors.   The court concluded that Tishman’s assistant superintendent, (Mr. Iannotta) “merely observed the concrete work and encouraged Hughes and his coworkers to “hurry up” and finish spreading the concrete.  Iannotta’s presence and encouragement are not sufficient to establish the requisite supervisory control.”

In seeking to show that Tishman controlled the work, the plaintiff presented testimony by another laborer that  because concrete brought to the site must be used within a relatively brief window of time, “everybody is yelling at you to … hurry up.”  The court found that regardless of the subjective feelings of “pressure” Hughes may have experienced as a result of Tishman’s admonitions to “hurry up,” this is of no legal consequence because, “Those feelings do not bear on, and thus are insufficient to demonstrate a triable issue of fact with respect to, whether Tishman controlled the manner in which Hughes performed his work.”

Deposition testimony that the court stated buttressed its conclusion that Tishman did not control the manner in which the work was performed included the following passage from one of the laborer’s depositions:

Q: When [Iannotta] was yelling for every one to hurry up and get the machine unclogged, did he tell you how to unclog the machine?

A: No.

Q: Has he ever told you how to go about doing your job?

A: No, he is just a super that pushes the work.

Q: Whom did you take orders from while you were at the job, who is your boss?

A: My boss was [a foreman for Sorbara].

*   *   *   *   *   *

Q: On the date of the accident, when you went about your job responsibilities, you testified before that the only person who supervised you was [a foreman for Sorbara];  is that correct?

A: Yes.

In addition, there was deposition testimony by the site safety manager that was working under subcontract to Tishman.  His testimony was as follows:

Q: While you were at the [site], did you ever personally observe or overhear [Essen] or [Iannotta] or anyone from Tishman instruct a contractor such as Sobarra [sic ] on the means and methods of their work?

A: For clarification when you say means and methods, referring [sic ] if they saw something is–that they didn’t like and they wanted changed;  what are you asking?

***3 Q: How to actually do the work?

A: No.

Q: Specifically with respect to the pouring of concrete or pumping out of concrete, did you observe or overhear them telling the contractors how to pour or pump the concrete?

A: No, sir.

The court said that the site safety manager employed by another contractor, Site Safety, Inc. testified that he observed Iannotta, Tishman’s assistant superintendant, overseeing the work on a “daily basis” and that if Iannotta “saw something that he didn’t think was right, [he] would tell them to change it.”  But this testimony, says the court, “demonstrates nothing more than that Tishman’s assistant superintendent was not an idle or passive presence.  Particularly given its utter generality, it does not undermine Rizzo’s later and specific testimony that neither Essen nor Iannotta controlled the manner in which Hughes performed his work.”

In its holding, the court concluded: “Site Safety, Inc., which Tishman hired to comply with Administrative Code of City of New York §  27-1009(d), did not control the manner in which Hughes performed his work.  Site Safety’s role on the site was limited to performing safety-related tasks;  it did not have the authority to control the manner in which the trades performed their work nor did it attempt to do so.  That Tishman, Site-Safety, or both, may have had the authority to stop work for safety reasons is insufficient to raise a triable issue of fact with respect to whether Tishman exercised the requisite degree of supervision and control over the work being performed to sustain a claim under Labor Law §  200 or for common-law negligence.”  The court concluded:  “At bottom, the evidence submitted in support of Tishman’s motion demonstrates that Tishman only exercised general supervisory powers.”   For these reasons, the court held that summary judgment should have been granted for Tishman.

Comment: This decision clarifies that the overarching principle under the New York law at Labor Law section 200 and under general common-law negligence is that liability may only be imposed on a general contractor or construction manager who controls the manner in which a subcontractor’s laborer perform his work.  Two separate lines of cases in New York could lead to different results.  In a dissenting opinion, one of the justices objected to the holding of the majority because he believed “the presence of a site safety coordinator who could stop work at the site would raise a triable issue of fact as to supervision and control sufficient to defeat a summary judgment motion.”   What was key to the majority’s conclusion was the deposition testimony.   Tishman and its site safety subcontractor testified quite plainly that they did not control the subcontractor’s work.  The subcontractor laborers likewise testified that Tishman did not direct them or instruct them how to perform their work.   This decision of the court sets important precedent that will be instructive to the courts in applying the law as well as to construction managers in performing their services in a manner to be within the holding of this decision.

About the author: Kent Holland is a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects – including assistance with contract drafting, review and negotiation; change order and claims analysis (preparation or defense); risk management advice concerning insurance coverage – including assistance with negotiating and drafting the terms and conditions of policies and endorsements, advice to insurance underwriters; guidance to those procuring insurance; change order and claim preparation, analysis and defense; contract preparation; contract review and contract negotiation.  Mr. Holland is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 9, No. 7.

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Article 3

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Defects in Contractor’s Own Work may be Covered by CGL Policy

By J. Kent Holland, Jr.

The Texas Supreme Court in the recent decision of Lamar Homes v. Mid-Continent Casualty Company, 2007 WL 2459193 (Tex.), concluded that allegations of unintended construction defects, whether caused by the insured prime contractor or its subcontractor, may constitute an “accident” or “occurrence” under a CGL policy.  In addition, the court found that that allegations of damage to, or loss of use of, the home itself (or the contractor or subcontractor’s work) may also constitute “property damage” sufficient to trigger the duty of the insurance carrier to defend the insured under a CGL policy.

The facts giving rise to the litigation concern the purchase of a new home from Lamar Homes, Inc. Several years after their purchase, the purchasers (DiMares) encountered problems they attributed to defects in their foundation. The DiMares sued Lamar and its subcontractor in federal district court in Texas complaining about these defects. Lamar forwarded the lawsuit to Mid-Continent Casualty Company to defend and indemnify it under a commercial general liability (CGL) policy. Mid-Continent refused to defend, prompting Lamar to seek declaratory judgment of its rights under the CGL policy.

Summary judgment was granted by the federal court for the insurance carrier because the court found the carrier had no duty to defend Lamar for construction errors that harmed only Lamar’s own product. The court reasoned that the purpose of a CGL policy is “to protect the insured from liability resulting from property damage (or bodily injury) caused by the insured’s product, but not for the replacement or repair of that product.”

The federal district court concluded that an injury to the insured contractor’s own work (the home) should not be considered an “occurrence” of property damage because the cost to correct faulty workmanship is an economic loss that a CGL policy should not cover. The district court further reasoned that defective construction could only be an occurrence when the defect caused bodily injury or damaged the property of a third party. Because the plaintiffs here did not allege damage to a third party’s property, the court concluded the carrier’s duty to defend had not been triggered.

Due to conflicting decisions in Texas state courts concerning coverage intent, the federal court decided not to enforce the summary judgment decision but to instead first ask the Texas Supreme Court to resolve the conflict between the state court cases.

As an initial matter, the Texas Supreme court determined that defective construction or faulty workmanship that damages only the work of the insured may be an “occurrence” which is  defined, in part, as an “accident.”  The term “accident” itself is not defined in the policy.  The insurance company  argued that faulty workmanship is not an accident because injury to the general contractor’s work is an expected and foreseeable consequence. The court found this argument unpersuasive, saying that Texas courts have not adopted foreseeability as the boundary between accidental and intentional conduct.  The carrier’s argument, said the court, includes a false assumption–that the failure to perform under a contract is always intentional (or stated differently “that an accident can never exist apart from a tort claim”).

The Texas court explained that by applying previous Texas decisions, the federal court reached the conclusion that the terms “accident” and “occurrence” include damage that is the “unexpected, unforeseen or undesigned happening or consequence” of an insured’s negligent behavior, including “claims for damage caused by an insured’s defective performance or faulty workmanship.” The federal district court here drew a distinction between faulty workmanship that damaged the insured’s work or product and faulty workmanship that damaged a third party’s property. The federal district court cited Federated Mutual Insurance which concerned only the latter circumstance, and thus the district court reasoned that faulty workmanship that damaged the property of a third party is a covered “occurrence,” whereas faulty workmanship that damaged the property of the insured contractor is not.

But the Texas Supreme Court took issue with the district court’s interpretation because the CGL policy does not define an “occurrence” in terms of the ownership or character of the property damaged by the act or event. Rather, the policy asks whether the injury was intended or fortuitous, that is, whether the injury was an accident.   The Texas court decided there was no logical basis within the “occurrence” definition for distinguishing between damage to the insured’s work and damage to some third party’s property.  With regard to the question of whether an insured’s faulty workmanship was intended or “accidental” the court stated that this is dependent on the facts and circumstances of the particular case.

The court next turned to the question of whether defective construction or faulty workmanship damaging only the general contractor’s work is “property damage” under the CGL policy.  The definition of “property damage” does not on its face, says the court, eliminate the general contractor’s work.   In this case, the DiMares alleged that Lamar was negligent in designing and constructing their home’s foundation and that Lamar’s defective workmanship caused the home’s sheetrock and stone veneer to crack. The federal district court stated that damage to the homebuilder’s own work, the home, cannot be “property damage” because CGL insurance exists not to repair or replace the insured’s defective work and that such an interpretation transforms CGL insurance into a performance bond.

The Texas Supreme Court rejected the federal district court’s analogy to performance bonds and proceeded instead to analyze the “Damage to Your Work” exclusion of the CGL policy – particularly with regard to the exception to the exclusion for work performed on the Insured’s behalf  by a subcontractor. In doing so, the court concluded that it agreed with the position of the Insured contractor   that this exception was added to protect the insured from the consequences of a subcontractor’s faulty workmanship causing “property damage.” “Thus, when a general contractor becomes liable for damage to work performed by a subcontractor–or for damage to the general contractor’s own work arising out of a subcontractor’s work–the subcontractor exception preserves coverage that the “your-work” exclusion would otherwise negate.”

Rather than argue around the subcontractor exception, the insurance carrier argued that coverage only was intended to cover tort damages and must be denied as contractual “economic damages”  The court states: “Contrary to the carrier’s contentions, the CGL policy makes no distinction between tort and contract damages.”  The proper inquiry, says the court,  is “whether an “occurrence” has caused “property damage,” not whether the ultimate remedy for that claim lies in contract or in tort.”  And, according to the court, “claims for damage caused by an insured’s defective performance or faulty workmanship may constitute an ‘occurrence’ when ‘property damage’ results from the unexpected, unforeseen or undesigned happening or consequence of the insured’s negligent behavior.”

About the author: Kent Holland is a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects – including assistance with contract drafting, review and negotiation; change order and claims analysis (preparation or defense); risk management advice concerning insurance coverage – including assistance with negotiating and drafting the terms and conditions of policies and endorsements, advice to insurance underwriters; guidance to those procuring insurance; change order and claim preparation, analysis and defense; contract preparation; contract review and contract negotiation.  Mr. Holland is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 9, No. 7.

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Article 4

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Copyright Protection for Design Professionals

J. Kent Holland, Jr.

The question of who will own a design professional’s instruments of service is one issue of great concern when I review professional services contracts that design professionals are being pressed to sign by project owners.  Standard form agreements such as those of the AIA and EJCDC state that designer maintains ownership and copyright of the documents – with a license being granted to the project owner to use them for its project.  When project owners draft their own agreements, however, they sometimes change the normal language concerning the plans and drawings (Instruments of Service) to state that copyright will be given exclusively to the project owner instead of to the design firm.   When confronted with this request, parties need to carefully consider what is really appropriate, and what protections, including payment and indemnification will be granted to the design firm in the event of reuse of the documents.  Two federal circuit court cases decided in 2006, which are briefly discussed below, provide practical guidance concerning copyright infringement of design documents.

Ordinary Observer Test to Determine Substantial Similarity

A firm, T-Peg, Inc.,  that sells complete packages for timber frame homes (including design plans and construction materials) provided preliminary plans for construction of a house to its client, landowner, which were used by the owner to obtain a building permit. After receiving its building permit the owner advised T-Peg that it was not going to purchase the package and it failed to pay the balance of what it owed for the preliminary plans.  Subsequently, the owner had another firm that had no in-house architects build a timber frame house using a design that looked similar to T-Pegs plans.   T-Peg sued the owner and its new firm for copyright infringement.  Summary judgment was granted for the owner by the trail court but this was reversed on appeal, with the court holding that the trail court had failed to make an appropriate comparison of the designs.  According to the Court, “the overall form as well as the arrangement and composition of spaces and elements in the design” could be considered by a reasonable jury to find substantial similarity.  This is called the “ordinary observer” test.  T-Peg, Inc. v. Vermont Timber Works, Inc., 459 F.3d 97. (1st Cir. 2006).

Owner Violated License Agreement by Reusing Plans without Prior Approval

A developer’s licensing agreement with its architect allowed it to use the architect’s plans for a single project, with reuse permitted only by first obtaining the architect’s written authorization and paying a reuse fee, plus a per unit fee.  When the developer subsequently asked the architect for permission to reuse the plans on another project, the architect asked the developer to execute a new licensing agreement for the reuse.  The developer refused to sign the new agreement and asserted that it would instead rely on the original agreement, paid the “per-unit fee” and proceeded to use the plans for its new development.  The developer did not pay the “base reuse” fee referenced in the original agreement, nor did it obtain the architect’s express written approval for reusing the plans.  The architect sought a preliminary injunction which was denied by the trial court in part because the new development was already complete and the developer stated it would not reuse the plans in the future.  In reversing the trial judge’s decision, the appellate court focused on the failure of the developer to obtain the required written permission for reuse and the apparent lack of good faith in proceeding with construction prior to obtaining that permission.  LGS Architects, Inc. v. Concordia Homes of Nevada, 434 F.3d 1150 (9th Cir. 2006).

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RED VECTOR.COM — ON-LINE COURSES


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ABOUT THIS NEWSLETTER & A 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.

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