Suit Limited to Breach of Contract/Warranty – Negligence Count was Duplicative and Dismissed

Breach of contract limited warranty was the only legal theory homeowner could pursue against builder. The negligence count was dismissed by the court as being duplicative of the breach of contract count and based on the exact same facts as what constituted the breach...

Court Affirms that Indemnification Clauses Traditionally Used and Interpreted as Extending Only to Third-Party Claims – Cannot be Used for First Party Damages from Breach of Contract

By: J. Kent Holland, Jr. The U.S. Court of Appeals for the District of Columbia affirmed a U.S. District Court decision that granted summary judgment to an engineer, holding that the statute of limitations had run on a breach of contract action, and the...

Contractor Under a GMP Contract Cannot Make Indemnification Claim against Engineer for Inaccurate Design Documents that Caused Extra Costs where there was no Third Party Claim

By Kent Holland Hensel Phelps Construction Co. (“Contractor”) was awarded a Guaranteed Maximum Price (GMP) contract for a Marriott Hotel in Washington, D.C. In preparing its GMP proposal, the contractor relied upon “Preliminary Design Documents” that had been prepared...

Engineer Liable for Rainwater Tank Collapse Where it Failed to Provide Appropriate RFI Responses to Contractor

Engineering firm designed site plans for a rain tank system to be buried under a parking lot for a new church sanctuary. As a contractor began constructing the project, it inquired of the engineer via a Request for Information (RFI) about concerns about the...

Economic Loss Rule Barred Claim against Contractor’s President

An error was made by a surveyor in setting the level for a foundation pad for a church building.   A construction contractor then proceeded to excavate dirt from the foundation area, believing the resulting level would be higher than required by the base flood...

Design Firms Held Unaccountable for Failing to Design in Compliance with ADA and FHA Requirements: Project Owner Cannot Sue for Breach of Contract or to Enforce Indemnity Obligations

By: J. Kent Holland ConstructionRisk, LLC Design Professionals that fail to design in compliance with ADA requirements cannot be sued by their clients for indemnification or breach of contract to recover the rectification costs to bring the building into compliance....

Prime Contractor Liable for Failing to Pay Sub Full Amount the Prime Received from Government for the Sub’s Work

Kent Holland, J.D. ConstructionRisk, LLC A subcontractor performing masonry work for renovations of buildings at the Langley Air Force Base recovered in a breach of contract action against the Prime Contractor who, after receiving full payment for the subcontractor’s...

Failure to Design According to the IBC Was Not Breach of Contract But Could be Malpractice

By Gail S. Kelley ConstructionRisk, LLC Where compliance with the IBC 2000 was not an explicit contract requirement, design firm’s failure to design a seismic retrofit in accordance with the IBC 2000 was not a breach of its contract. However, the firm’s...

A/E Failure to Meet Standard of Care Entitles Project Owner to Recover on Negligence Claim but not for Breach of Contract

Kent Holland ConstructionRisk, LLC In a decision that this author finds confusing, an appellate court in New York held that where there was expert testimony demonstrating that an A/E failed to meet the professional standard of care in designing sheer walls for the...

Economic Loss Doctrine Bars Negligence Claim Arising out of Breach of Contract

Where a condominium association filed suit asserting negligence claims against the general contractor that built the complex, alleging defective workmanship including deficient masonry work and use of unauthorized black building paper in place of specified...