Conflict of interest because of participation in peer review. In the Matter of HBI-GF, J.V. United States Government Accountability Office (2017), by Hugh Anderson

Summary: In March 2016, the Corps of Engineers retained Gannett Fleming to conduct an external peer review of the design of a six-mile cutoff wall project at the Herbert Hoover Dike embankment, at Lake Okeechobee, Florida. Gannett Fleming’s personnel, including a geotechnical engineer, reviewed project design documents, submitted more than 80 comments, and prepared findings […]

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Entitlement to arbitration under design agreement. Thomas Zimmer Builders LLC v. Kurt E. Roots and Monika Roots. Court of Appeals of Wisconsin (2018), by Hugh Anderson

Summary: In a residential construction dispute between contractor and homeowners, the homeowners (the Rootses) brought a third-party claim against architect Mark Udvari-Solner. Udvari-Solner moved to compel arbitration, based on the arbitration clause in the design agreement between the Rootses and Udvari-Solner Design Co., a corporation. The trial court denied the motion to compel arbitration, and […]

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Is an aggregate analysis a professional service that triggers the application of a certificate of merit requirement? Ronald R. Wagner & Co. LP v. Apex Geoscience Inc. Texas Court of Appeals (2018), by Hugh Anderson

Summary: Wagner was the construction contractor on a paving project. The Texas DOT (TXDOT) specifications required the contractor to provide aggregate meeting stated characteristics. During the bidding phase, Wagner had relied on a report, issued by a senior engineer at Apex Geoscience, that found that proposed aggregate from the Wilson Pit met the specification. Later, […]

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Did the payment bond issued for a design-build project provide protection to an engineering subcontractor? Aztec Engineering Group, Inc. v. Liberty Mutual Insurance Company. United States District Court, Southern District of Indiana (2017), by Hugh Anderson.

Summary: Aztec Engineering Group provided design services for the upgrade of 21 miles of state highway near Bloomington, Indiana, under a professional services subcontract with design-builder Isolux-Corson. Isolux-Corson’s work was in turn part of a Public Private Partnership to “design, build, finance, operate and upgrade” the highway. The design-build contract between the project’s Developer and […]

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Contractor-subcontractor relationship; wrongful termination of subcontractor. Randy Kinder Excavating, Inc. v. J.A. Manning Construction Co., Inc. United States Court of Appeals, Eighth Circuit. (2018), by Hugh Anderson

Summary: Kinder was the general contractor on a $10 million Corps of Engineers pumping station project on the White River in Arkansas. Manning was Kinder’s subcontractor for construction of a mechanically stabilized earth wall (a form of retaining wall). As the U.S. Court of Appeals put it, “As with many large-scale projects, this venture was […]

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What is the exercise of discretionary authority under a statute limiting the State’s liability? Rodriguez v. Department of Transportation. Court of Appeal of California (2018), by Hugh Anderson

Summary: The State of California is not liable for injuries except as provided by statute. The Government Claims Act allows for direct liability for injuries caused by the State maintaining a dangerous condition. However, this exposure to liability is limited: the State is allowed to raise the design immunity defense. This defense gives the State […]

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Owner’s claims against design-builder’s architect regarding design-builder’s applications for payment. Auburn Hills Tax Increment Finance Authority v. Haussman Construction Company. Court of Appeals of Michigan (2018), by Hugh Anderson

Summary: Haussman Construction retained Mayotte Group, Inc., an architecture firm, to design a four-story parking structure. Somewhat afterward, Haussman entered into an “Owner-Builder” agreement with the project owner, the Auburn Hills Tax Increment Finance Authority, agreeing to “serve as general contractor for the design and construction” of the parking structure. The Owner-Builder agreement identified Mayotte […]

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May a project owner sustain a claim against design professionals retained by the contractor? Stapleton v. Barrett Crane Design & Engineering. United States Court of Appeals, Second Circuit (2018), by Hugh Anderson

Summary: Keywell, the project owner, entered into contract with Pavilion Building for the design and construction of a commercial building in western New York. Pavilion subcontracted some or all of the design to Barrett Crane Design & Engineering. After completion, Keywell brought professional negligence and breach of contract claims in Federal court against Pavilion, Barrett […]

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Issue: Property damage insurance and waiver of subrogation. Ritacca Laser Center v. Brydges. Appellate Court of Illinois, Second District (2018)., by Hugh Anderson

Summary: A medical facility, Ritacca Laser Center, entered into a design-build contract to remodel a basement space into a surgical suite. The design-build contractor retained O’Hare Engineering for design and installation of the building’s HVAC system. A few days after the new facility’s grand opening, a fire caused extensive damage. The cause of the fire […]

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Issue: Termination of construction contract three years after completion. S.J. Louis v. City of Austin. Texas (2018). by Hugh Anderson

Summary: This is a pending case that has not yet reached the appellate stage, but bears monitoring. The case arises from a $161 million flood control tunnel project. The contractor allegedly used shoddy concrete and failed to install a tunnel liner or rebar in some places. Repairs were made and the city may or may […]

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