November 2005

October 2005
September 2005
July/August 2005
June 2005
April 2005
February 2005

1999-2004 Issues

Featured Books:

• A/E Potentially Liable to Contractor for Defective Design Documents.

• No A/E duty to Subcontractor to Assure Payment Bond Procured or That General Contractor Paid Him Prior to Progress Payment Being Approved
• Architect May be Liable to Unpaid Supplier

• Architects Not Liable Under ADA

• Contractor Not Bound By Architect’s Decision on Claim

• Contractor Not Bound By Architect’s Decision on Claim

• Recovery of Attorneys Fees: Indemnity Obligation

• Violation of New York City Ordinance Does Not Constitute Negligence Per Se  
•   Contractor not Responsible for Costs of Changes Caused by Building Code Violations Contained in Owner’s Drawings

• Change Order Bars Owner's Claim Against A/E

• Differing Site Conditions:  Can You Recover Increased Costs?
• Risk of Differing Site Condition Not Shifted to Contractor

• How Jargon Complicates Construction

• Architect Cannot Sue Construction Manager for Negligence 

• No Excuse for a Bad Contract
• Risk of Differing Site Condition Not Shifted to Contractor by Ambiguous Contract Language
• Failure to Attend Pre-bid Site Visit Proves Fatal to Differing Site Conditions Claim.
• No Damage for Delay Clause Not Enforceable
• Architect Cannot Sue Construction Manager for Negligence - No Contract Privity
• Managing Killer Clauses in Construction Contracts: Part I
• Managing Killer Clauses in Construction Contracts: Part II
• Review of Ava Abramowitz book “Architect’s Essentials of Contract Negotiation” 

• Copyright infringement by Reuse of Architect’s Plans
• Copyright Infringement of Design Documents
• Copyright Protection Granted to Land Surveyor’s Site Plan

• When a "Promise" Isn't a Promise - (Verbal)
• No Excuse for a Bad Contract
• The Ball’s In My Court (Because I Drafted the Contract) and I’m the Referee (Or Chief Executioner)

• Sovereign Immunity Does Not Bar Contractor Claim for Contested Work
• Change Order Bars Owner's Claim Against A/E

• Role of Architect in Controlling Construction Costs
•   Contractor not Responsible for Costs of Changes Caused by Building Code Violations Contained in Owner’s Drawings

• "No-Damage-for-Delay" Clause Unenforceable where City Withheld Superior Knowledge About Conditions
• Delay Claims in Construction Cases: Common Pitfalls
• Contractor Not Liable for Emotional Distress
• Is the Total Cost Method a Viable Means of Calculating Construction Damages Under Massachusetts' Law?
• Liquidated damage assessment against contractor
• Quantum Meruit Recovery by Contractor Against Cher  
• No Damage For Delay Clause Not Enforced
• Architect Wins Entitlement to Damages, but Recovers Nothing, Because it Failed to Keep Adequate Cost Records.
• No Damage for Delay Clause Not Enforceable
• Fee Offset May be Insured Claim

• A/E Potentially Liable to Contractor for Defective Design Documents.

• Cost of replacing contractor’s defective workmanship not covered by CGL policy.
  

• Design-Build: Does It Guarantee Project Success?

•   Risk of Differing Site Condition Not Shifted to Contractor

• Alternate Methods to Resolve Contract Disputes
• Are Construction Claims Inevitable
• Contractor Not Bound By Architect’s Decision on Claim
• CPM Scheduling Can Help In Resolution of Disputes
• Who Sues A/E's? 
• The Ball’s In My Court (Because I Drafted the Contract) and I’m the Referee (Or Chief Executioner)
• Electronic Discovery Issues – An Emerging Challenge

• Architect Wins Entitlement to Damages, but Recovers Nothing, Because it Failed to Keep Adequate Cost Records.
• Electronic Discovery Issues – An Emerging Challenge

• Economic loss doctrine bars owner's claim against subcontractor

• No Superfund Liability for Engineer
• No Coverage Under CGL Policy for Loss Arising Out of Product Containing Asbestos  
• Mold Problems Increase: Is Coverage Available?
• Pennsylvania Jury Rejects Expert Testimony and Claim for Personal Injury Resulting from Mold
• Mold-Related Construction Defect Claims: Who is Liable for Alleged Damage Caused by Exterior Insulation Finishing Systems (“EIFS”) 

• Environmental Consultants Are Sued for Cleanup Costs

• Judgment Against Architects Reversed Due to Lack of Expert Testimony
•  A/E Not Liable for Negligence or Negligent Misrepresentation Without Expert Testimony 
• Expert Affidavit Required with Complaint
• Requirements of Expert Affidavit of Lawsuit Merit

• Indemnification language found ambiguous and unenforceable
• Contractor Required to Indemnify Negligent Party
• Recovery of Attorneys Fees: Indemnity Obligation
• Anti-Indemnity Statute does not Void Additional Insured’s Coverage

• Inspection of subcontractor's Work Does Not Make Owner and Prime Contractor Liable for Safety

• Insurance Company Improperly Refused to Defend Additional Insured Under Contractor's Policy
• Cost of replacing defective work excluded under Builder’s Risk Policy
• Defective Workmanship Potentially Covered By Insurance
• Additional Insured Endorsement Limited
• CGL Policy does not cover contractor’s defective
• Contractor Can't Recover Insurance for Damages Caused by Its Breach of Contract  
• Cost of replacing contractor’s defective workmanship not covered by CGL policy.
• Insurance Recovery Forfeited by Failure to Report Damages Before Undertaking Repairs
• No Coverage Under CGL Policy for Contractor’s Professional Opinion
• No Coverage Under CGL Policy for Loss Arising Out of Product Containing Asbestos  
• Insurance Carrier Had No Duty to Defend Engineer in Wrongful Death Action Based on Trench Collapse.
• The Catastrophe and Waiver of Subrogation
• General Liability Subsidence Exclusion Is Major Concern

• ISO 9000: What Is It and How Will It Impact You?

• State Board Improperly Penalized Engineer that Performed Services Overlapping Those of Architects.

• Who Sues A/E's? 
• Quantum Meruit Recovery by Contractor Against Cher  
•  ASuit Against A/E for Negligence, Negligent Misrepresentation, Fraud, and Breach of Warranty Dismissed.
• A/E Potentially Liable to Contractor for Defective Design Documents.

• Limitation of Liability in Agreement Not Applicable to Causes of Action Arising Out of Contract Addendum

• Pennsylvania Jury Rejects Expert Testimony and Claim for Personal Injury Resulting from Mold

• The Reality Behind Paperless Litigation
• Electronic Discovery Issues – An Emerging Challenge
• Finding Law Related Sites (indexed by subject matter)

• Contractor sues engineer for misrepresenting site conditions
• Contractor may sue construction manager for negligent misrepresentation and supervision.
•  A/E Not Liable for Negligence or Negligent Misrepresentation Without Expert Testimony 

•  A/E Not Liable for Negligence or Negligent Misrepresentation Without Expert Testimony 
• Violation of New York City Ordinance Does Not Constitute Negligence Per Se  
• Architect Cannot Sue Construction Manager for Negligence 
  

• No Compensation owed to contractor who performed extra work without written authorization

• "No-Damage-for-Delay" Clause Unenforceable where City Withheld Superior knowledge

• When a "Promise" Isn't a Promise - (Verbal)

• A/E Relied on Owner to Test Old Tank before Incorporating into New Project: Potential Liability for Death Caused by Tank Rupture

• Alert: Are Terrorists Requesting Copies of Building Plans?

• Can You Tell the Market That Your Patent Is Being Infringed?

•   No Compensation owed to contractor who performed extra work without written authorization

• No A/E duty to Subcontractor to Assure Payment Bond Procured or That General Contractor Paid Him Prior to Progress Payment Being Approved

• Environmental Consultants Are Sued for Cleanup Costs

• Failure to Attend Pre-bid Site Visit Proves Fatal to Differing Site Conditions Claim.

• No A/E duty to Subcontractor to Assure Payment Bond Procured or That General Contractor Paid Him Prior to Progress Payment Being Approved

• Managing Conflicts of Interest
• How Jargon Complicates Construction
• Documentation in the Age of  Web-Based Project Management Systems
• Getting Defensive:  Cyber-risks, wireless risks, e-mail risks, web-based project management risks and risk management
• Web-Based Project Management Systems - Virus Security Briefing

• Prompt Payment Provisions Place Time Limits on the Withholding of Retainage on Federally Funded Projects
• Architect May be Liable to Unpaid Supplier

• Getting Defensive:  Cyber-risks, wireless risks, e-mail risks, web-based project management risks and risk management
• Spiritual Journey of a Construction Lawyer - Spiritual Risk Management?

• Inspection of subcontractor's Word Does Not Make Owner and Prime Contractor Liable for Safety
• Does Project Monitoring Make You Liable for Job Site Injuries?
• A/E Relied on Owner to Test Old Tank before Incorporating into New Project: Potential Liability for Death Caused by Tank Rupture
• Contractor Criminally Indicted for Death of Workers
• OSHA Standards Create no Liability for Engineer and Contractor for Injuries to Non-employee
• Owner Not Liable For Site Safety
• Knowledge of unsafe work-site conditions Does Not Establish Engineer Liability for Injuries to Construction Laborer
• General Contractor Liable for Injury to Independent Contractor’s Employee

• Government Warranty of Performance-Type Specifications

•  A/E Not Liable for Negligence or Negligent Misrepresentation Without Expert Testimony 
• Architect not liable for premises injury without evidence that design violated the standard of care 

• A/E Contract Established Time Limit for Suit
• Statute of Repose for Construction Projects Time-Bars Claim that could also be Asserted as Products Liability – with Longer Statute of Limitations Period
• Surety Fails to Pay on Bond for Default Termination

• A/E Contract Established Time Limit for Suit
• Statute of Repose for Construction Projects Time-Bars Claim that could also be Asserted as Products Liability – with Longer Statute of Limitations Period
• Statute of Repose Passes Constitutional Test
• Statutes of Repose Applicable to Construction Industry.
• Statute of Repose Applies to Contract and Negligence Actions

• Superior Knowledge about Site Conditions and Caused the Delay
• Differing Site Conditions:  Can You Recover Increased Costs?

• Substantial Completion Not Granted Until Fire Alarm System is Successfully Tested

• Miller Act Surety Requirements Amended
• Surety Hit with Substantial Punitive Judgment
• Surety Fails to Pay on Bond for Default Termination
• Surety Update
• Bid Bonds on Federal Contracts - Just the Fax

• Suspension and Debarment: Guilt by Affiliation

• Contractor Terminated for Default for Failure to Adequately Respond to Cure Notice  

• Architect may legally limit time period for being sued, but may be equitably estopped from enforcing the limitation.
• A/E Contract Established Time Limit for Suit

• Reciprocal Waiver of Subrogation Bars Insurance Company Claim Against Contractor for Fire Damage to Building
• The Catastrophe and Waiver of Subrogation

• Architect Has No Warranty Obligation to Condo Association
• Suit Against A/E for Breach of Warranty Dismissed Because Really Based in Tort and Not Contract, plus A/E did not Sell Anything 
• Engineer Not Liable for Breach of Implied Warranty of Design   
• Government Warranty of Performance-Type Specifications
• Do Contractor’s Warranties Ever Expire?

• Zurich Insurance Offers New Website

• Year 2000: Implications For the Construction Industry
• Will There be a Y2K Litigation Avalanche?
• Design Professional Y2K Liability and Defense
• Contractual Obligations Exposing A/Es to Y2K Responsibility
• EPA Encourages Y2K Testing of Wastewater Facilities
• Sewage Spill Results from Y2K Test
• Status of Water Industry with the Y2K Crisis

• Suits Against Vendors for Breach of Warranties

• Design Professionals and The Y2K Problem

• Corporations Seek Insurance Coverage for Y2K Costs
• President Signs Y2K Act

• ACEC 1996 Annual Survey of Professional Liability

• Environmental Law on the Web

• Using Web Searches for Gov. Services

• Litigators Internet Resource Guide

• Scooping on the Net:   Discovering Current Legal Developments

• Flashback! Employing Traditional Research Techniques on the Web

• Non-contractual liability of contractor for defective work

• Engineer's Decision Reviewable by Court Despite Contract Stating It Was Final

• Subcontractor's Defective Work Covered by Prime's CGL Policy with Broad Form   Endorsement

• Virtual Reference for Real Lawyers (How to create your own web library)

• - Highway Contractor Protected by State Immunity Statute
  - Contractor Entitled to Rely Upon Government's Implied Warranty of Specifications

• Liquidated Damages Clause and Waiver of Consequential Damages Clause Effectively Cap Damages Available against Design-Builder. 
• No Warranty of Design

These articles are distributed with the understanding that ConstructionRisk.com, LLC and J. Kent Holland, Jr., the editor, are  not hereby engaged in the rendering of legal services, and make no representation concerning the accuracy or applicability of the articles. Further, the content and comments in these articles are for general distribution and education, and cannot apply to any single set of specific circumstances. If you have a legal issue to which your believe these articles relate, we urge you to consult your own legal counsel. ConstructionRisk.com expressly disclaims any responsibility for damages arising from the use, application, or reliance upon the information contained herein.