All Posts by Linda Yelton

Insurance company’s duty to defend and indemnify contractor against owner’s breach of contract claim. Crum & Forster Specialty Insurance Co. v. GHD Inc. United States Court of Appeals for the Seventh Circuit (2019), by Hugh Anderson

Summary: DVO Inc. (formerly GHD) is in the business of designing and constructing anaerobic digesters, which use microorganisms to break down materials in the absence of oxygen. This creates biogas, which can be used to generate electricity. DVO entered into a contract with a private owner, WTE, to design and build such a digester in […]

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Interpretation of ambiguous drywall finishing specifications. Appeal of KiewitPhelps. Armed Services Board of Contract Appeals (2019), by Hugh Anderson

Summary: The U.S. Army Corps of Engineers and KiewitPhelps (a joint venture) entered into a $524 million contract for construction of a new facility for the U.S. Strategic Command at Offutt Air Force Base near Omaha, Nebraska. The drywall work was subcontracted to Cleveland Construction, Inc. (CCI), for $16 million. HDR Architecture was the designer […]

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Contractor’s contractual indemnification obligation to project’s architect/engineer. Valdez v. Turner Construction Co. Appellate Division of the Supreme Court of New York (2019), by Hugh Anderson

Summary: The Dormitory Authority of the State of New York retained Skidmore Owings and Merrill (SOM) as architect and construction manager. SOM subcontracted the construction management to Turner Construction Company. The owner separately contracted with KJC Waterproofing for roofing work. During construction, a landscape contractor’s employee was injured when he became entangled in the straps […]

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Engineering firm’s exposure to liability to low bidder that did not receive the award of contract. John Rocchio Corp. v. Pare Engineering. Supreme Court of Rhode Island (2019), by Hugh Anderson

Summary: The Warwick Sewer Authority (WSA) retained Pare Engineering Corporation to design a sewer infrastructure expansion project and assist WSA in soliciting bids from construction contractors. Ultimately five contractors bid on the work. John Rocchio Corporation was the low bidder, at $2.32 million. The next low was $2.47 million. In a memorandum to WSA after […]

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Application of the statute of repose to breach of contract claims. New Riegel Local School District Board of Education v. The Buehrer Group Architecture & Engineering, Inc. Supreme Court of Ohio (2019). by Hugh Anderson

The new New Riegel school was substantially completed in 2002. In 2015, the school district brought claims against the project architect/engineer and two contractors, alleging that the building was beset by condensation, moisture intrusion, and other deficiencies as a result of improper design and construction. Later that year the school district sued the A/E and […]

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Engineering firm’s compliance with FEMA flood standards as a defense to subsequent negligence claims. Alexander v. The Woodlands Land Development Company. United States District Court for the Southern District of Texas (2018). by Hugh Anderson

Summary: The Woodlands Land Development Company and the Howard Hughes Corporation jointly developed a residential community called Timarron Park. They retained LJA Engineering and James Bowles to design the stormwater drainage system for the new development. The tract of land on which Timarron Park was ultimately constructed was a low area that included both a […]

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Does the design/construction statute of repose protect an engineering firm that conducted an inspection of a newly built structure for a prospective purchaser? Manney v. MBV Engineering, Inc. District Court of Appeal, Florida (2019), by Hugh Anderson

Summary: In 2002 Manney retained MBV Engineering to review the construction drawings and inspect a newly built house that Manney was planning to purchase. MBV informed Manney that the structural integrity of the house was excellent. Manney purchased the house. Thirteen years later Manney retained a structural engineer who reported that the house had significant […]

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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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