Indemnification Clause in Prime Contract is not Incorporated by Reference into Subcontract Under New York Law in Absence of Express Agreement to Do So

by Kent Holland | Mar 5, 2013 | indemnification clause, Newsletter Article

Where an employee of an electrical sub-subcontractor was injured on the jobsite, he sued the project developer, the prime contractor, and others.  Those firms in turn filed a third-party claim against the sub-sub claiming the right to common law indemnity as well as...

Common Law Indemnity Not Owed by Architect to Developer Where Developer’s Own Alleged Negligence was Subject of Suit by Owner

by Kent Holland | Mar 5, 2013 | Newsletter Article

When a project owner (YMCA) sued a developer (Bovis Lend Lease) for breach of contract for approving a defective design proposed by the Architect and also for approving inferior or improper construction materials, Bovis could not legally maintain a common law...

Implied Warranty of Habitability Extended Beyond Initial Home Purchaser to Second Purchasers

by Kent Holland | Mar 5, 2013 | Newsletter Article

After having a house built by a Homebuilder, the purchasers sold it to another family three years later, and the new owners discovered water infiltration around their windows two years after that and filed suit against the Builder asserting breach of implied warranty...

Certificate of Merit Requirement was Waived by Engineer’s Failure to Timely Push for Dismissal

by Kent Holland | Feb 20, 2013 | Newsletter Article

A Texas requirement, that a plaintiff must file a certificate of merit signed by an expert when it files a complaint against an engineer, was deemed waived by the defendant (engineer) where the engineer substantially participated in the litigation process over a three...

The “Completed and Accepted Doctrine” Bars Third Party Suit against Architect that Failed to Observe and Report an Obvious, Patent Construction Defect to Owner/Client

by Kent Holland | Feb 20, 2013 | Newsletter Article

The “Completed and Accepted Doctrine” was held by a court to bar a slip and fall case against an architect who failed to observe that a construction contractor had failed to install “contrast marking stripes” on steps inside a theater the architect designed.  The...

Subcontractor’s Waiver of Consequential Damages is Enforced where the Waiver Clause was Incorporated by Reference from the Prime Contract

by Kent Holland | Feb 18, 2013 | Newsletter Article

Where a subcontract contained an “incorporation by reference” clause, expressly incorporating the terms of the prime contract between the general contractor and project owner, the “waiver of consequential damages” clause of the prime contract flowed down to the...