Monthly Archives: June 2019

Duty owed by engineer-inspectors to negligent design-builder. W.C. English, Inc. v. Rummel, Klepper & Kahl, LLP. United States District Court, Western District of Virginia (2018), by Hugh Anderson

Even if the design-builder had been correct in deciding to switch to the shorter slab runners, what about the first 40% of the bridge that had been built with the taller slab runners, and presumably a thinner concrete cover—was there ever an intent to bring this discrepancy to VDOT’s attention?

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Categorization of construction repair costs as consequential or general damages. Keystone Airpark Authority v. Pipeline Contractors, Inc. Court of Appeal of Florida (2019), by Hugh Anderson

EJCDC publishes documents that contain mutual waiver of consequential damages clauses. These clauses are intended to protect against obscure and distant consequences, from outside the project scope. But as the Keystone case illustrates, the impact may sometimes be more direct. Perhaps it is no surprise that in many cases one party or the other—often a project owner—will remove such a waiver from a contract during the contract formation process.

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Does an indemnification agreement apply only to third-party claims? International Fidelity Insurance Co. v. Americaribe-Moriarty JV. United States Court of Appeals, 11th Circuit (2018), by Hugh Anderson

EJCDC has always viewed its indemnification clauses as applying to third-party claims only. That viewpoint has been reinforced in recent years through the express addition of the words “third party” in key indemnification clauses, such as the general indemnity in the Standard General Conditions of the Construction Contract (C-700—2018, Paragraph 7.18) and the engineer’s indemnification of owner in the Agreement between Owner and Engineer for Professional Services (E-500—2014, Paragraph 6.11).

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Surety’s entitlement to recover costs under general indemnity agreements with contractor and contractor’s owners. Arch Insurance Company v. Centerplan Construction Company, LLC. United States District Court, District of Connecticut (2019), by Hugh Anderson

Although the terms and conditions of the bonds were not significant factors in the court’s decision, it appears that the bonds on the project were similar to, perhaps the same as, the standard bonds developed by a collaboration of industry organizations (including EJCDC) and published by EJCDC. For example, the Arch performance bond appeared to require a conference of owner, contractor, and surety prior to a declaration of default—such a conference is one of the procedural steps required in EJCDC® C-610, Performance Bond, Paragraph 3.1.

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