Category Archives for "Court Decisions"

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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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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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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