Construction Risk

Case against Engineer Dismissed for Lack of Expert Affidavit

Where an insurance carrier brought a subrogation claim against a engineering firm and its subconsultants to recover insurance monies it had paid under its property policy to its insured townhouse owner as a result of damages to a party wall that occurred during remodeling, summary judgment was properly granted to the engineer due to failure of the property carrier to file an expert affidavit with its complaint, and also due to lack of any evidence of malpractice.

In Travelers Indemnity Company v. Zeff Design, Z One Design and Hage Engineering, 875 N.Y.S. 2d 456, 2009 (2009), the appellate court, in affirming the trial court summary judgment, stated that the record, including the contract document, made clear that the engineer had no obligation to perform any services related to installation of underpinning, shoring or bracing, or another other stability measures. The court also considered notations on the engineer’s drawings and specifications that “made clear” that all such work was the responsibility of the construction contractor who was required to retain a licensed professional engineer to provide all necessary designs and required inspections concerning the wall. The trial court record demonstrated to the court’s satisfaction that there was no evidence of negligence on the engineer’s part since, “since its specifications were not followed, and the settling happened only after there was a deviation from [engineer’s] instructions.”

Finally, Travelers failed to include an expert’s affidavit to support its conclusion that it was the engineer’s design “first and foremost” that failed. “A claim of malpractice against a professional engineer requires expert testimony to establish a viable cause of action.” Quoting from a recent decision the court explained, “A claim of professional negligence requires proof that there was a departure from accepted standards of practice, and that the departure was a proximate cause of injury.” Because Travelers failed to provide such proof from an expert in opposition to the engineer’s motion, “this also warranted dismissal of the complaint….”

About the author: All articles in this issue of the ConstructionRisk.Com Report are written by J. Kent Holland, 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 also founder and president of ConstructionRisk, LLC, a consulting firm providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of Report and may be reached at or by calling 703-623-1932. This article is published in Report, Vol. 12 No. 1 (January 2010).

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