Limitation of Liability Clause Ambiguous in Engineering Agreement

by Kent Holland | Jan 19, 2022 | Newsletter Article

A contract between an Engineer subconsultant and an Architect contained a limitation of liability clause stating that liability was limited to twice the amount of Engineer’s fee.  When Architect sued Engineer for damages the project owner was awarded in arbitration,...

Arbitration Award Affirmed Despite Objections that one of Arbitrators Failed to Disclose Relationship with Two of the Parties

by Kent Holland | Dec 21, 2021 | Newsletter Article

In an interesting court decision enforcing an arbitration award, the Court of Appeals of Washington, D.C. affirmed a three person arbitration panel’s decision in favor of a contractor against a subcontractor and rejected the subcontractor’s argument that the decision...

Engineer has no Exemption from Liability under Statute Providing Insurance Companies Exemption from Liability

by Kent Holland | Dec 21, 2021 | Newsletter Article

A summary judgment in favor of an engineer was reversed on appeal, with the court holding that an engineer that performed a post-loss insurance claim investigation was not protected by a state statute exempting liability for furnishing safety inspection or advisory...

Implied Warranty and Workmanship Claims Cannot be Waived by Homeowner

by Kent Holland | Dec 21, 2021 | Newsletter Article

Arizona Court of Appeals held that where homeowner signed a contract that waived its right to make claims against the Builder for breach of implied warranty of workmanship, the waiver was unenforceable.  Arizona common law precludes such waiver because it is deemed to...

Contract Drafting Tip: The Flow–Down Incorporation by Reference Clause

by Kent Holland | Dec 21, 2021 | Newsletter Article

This article is written from the subcontractor’s perspective.  When negotiating its subcontract, the subcontractor may be successful in obtaining reasonable clauses concerning standard of care, time for performance, indemnification, limited warranties and other...

Insurance Carrier could not assert the Contractual Liability Exclusion to Deny Coverage for Breach of Contract Claim that arose out of Negligence

by Kent Holland | Nov 23, 2021 | Newsletter Article

The contractual liability exclusion in a professional liability policy is often used by carriers to deny coverage for liability of the Insured design professional (DP) that arises out of the indemnification article of a contract.  For example, if the DP agrees to...