When Engineer Refused Obligations under an Indemnification Clause to Defend its Homebuilder Client, Suit Against it for Breach of Contract does not Require Certificate of Merit

by Kent Holland | Oct 27, 2015 | indemnification clause, Newsletter Article

Kent Holland, J.D. ConstructionRisk, LLC Where an engineer entered into a contract with a homebuilder, its contract included a broad form indemnification clause that included a duty to defend and an obligation to indemnify for all claims and damages regardless of...

“Or Equal” Vendor Can Sue Architect for Tortious Interference with Contract for Drafting Disguised Sole Source Specification and Rejecting Or Equal Bid

by Kent Holland | Oct 27, 2015 | Newsletter Article

By Kent Holland, J.D. ConstructionRisk, LLC A vendor/installer of artificial turf (FieldTurf) for athletic fields sued the architect of record that prepared bid specifications for a university that could not be met by that vendor but allegedly could be met only by a...

Liquidated Damages Imposed on Contractor Even Where Contract was Terminated for Convenience and There was No Proof of Actual Damages

by Kent Holland | Sep 1, 2015 | Newsletter Article

Kent Holland, J.D. ConstructionRisk, LLC Where a contractor was late in performance, a town terminated the contract for convenience and subsequently claimed liquidated damages (LDs) against the contractor. Both the trial court and appellate court concluded that the...

Court Holds New Jersey Affidavit of Merit must be from Like-Licensed Professional

by Kent Holland | Sep 1, 2015 | Newsletter Article, standard of care

Gail S. Kelley, J.D., PE ConstructionRisk, LLC As of 2015, about a dozen states have passed so-called “Certificate of Merit” laws that establish a threshold requirement for filing professional negligence claims against design professionals. These laws, which evolved...

Private Engineering Firm that Functioned as City Engineer Entitled to Official Immunity

by Kent Holland | Sep 1, 2015 | Newsletter Article

Kent Holland, J.D. ConstructionRisk, LLC Where a city retained a private engineering firm to perform the services of “City Engineer,” including to “provide planning, design, and construction related services for public improvement projects.” Acting as city engineer,...

Indemnity Clause Void & Unenforceable Because Sub was not Sole Cause of Damages

by Kent Holland | Sep 1, 2015 | indemnification clause, Newsletter Article

Kent Holland ConstructionRisk, LLC On a condominium project, where an indemnification clause on its face made a subcontractor responsible for indemnifying the prime contractor for damages caused “in whole or in part” by the subcontractor, it was held that the state’s...