Category Archives for "EJCDC"

Engineer’s liability for failure of rain tank that it designed; reliance on manufacturer’s information; standard of care, and contractor’s responsibility, by Hugh Anderson

Issue: Engineer’s liability for failure of rain tank that it designed, including issues of reliance on manufacturer’s information regarding the tank, standard of care, and contractor’s responsibility. William H. Gordon Associates, Inc., v. Heritage Fellowship Church. Supreme Court of Virginia (2016). Summary: Heritage Fellowship Church retained Gordon to conduct various civil engineering tasks associated with […]

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Viability of supplier’s claim against design engineer, by Hugh Anderson

Issue: Viability of supplier’s claim against design engineer. State Ready Mix, Inc., v. Moffatt & Nichol. Court of Appeals of California (2015). Summary: Bellingham Marine, as “project manager,” (in reality a design-­‐builder) hired Moffatt & Nichol, an engineering firm, to design a travel lift pier at the Channel Islands Harbor. Bellingham contracted with Major Engineering […]

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Official immunity of engineering firm functioning as city engineer, by Hugh Anderson

Issue: Official immunity of engineering firm functioning as city engineer. Kariniemi v. City of Rockford. Court of Appeals of Minnesota (2015). Summary: The City of Rockford, Minnesota, retained a private engineering firm, Bonestroo, to act as city engineer. One task was to design storm sewers, retention ponds, and street grading for a new residential development. […]

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Interpretation of “substantial completion” with respect to a statute of repose, by Hugh Anderson

Issue: Interpretation of “substantial completion” with respect to a statute of repose. Horning v. Penrose Plumbing & Heating, Inc. Supreme Court of Wyoming (2014). Summary: Mr. and Mrs. Horning awoke confused and disoriented one January morning. Their condominium unit was extremely cold. Investigation revealed a rupture in the furnace exhaust pipe. The couple had sustained severe […]

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Enforceability of limitation and waiver of liability clauses in a teaming agreement, after parties have entered into a subcontract, by Hugh Anderson

Issue: Enforceability of limitation and waiver of liability clauses in a teaming agreement, after parties have entered into a subcontract. URS Corp. v. Transpo Group, Inc. United States District Court for the Western District of Washington (2015). Summary: On a design-­‐build highway project, the design-­‐builder, Flatiron, withheld payment from the lead design firm, URS, asserting […]

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Construction Manager as Advisor/Agent—liability for site safety, by Hugh Anderson

Issue:  Construction  Manager  as  Advisor/Agent—liability  for  site  safety.  Hunt Construction Group, Inc., v. Garrett. Indiana Supreme Court (2012). Summary: Construction managers often provide services related to project safety. This case, arising from the construction of Lucas Oil Stadium in Indianapolis, examines whether a substantial set of contractual safety duties exposed the CM to liability to […]

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A Good Start for a Form P3 Agreement, by Jason C. Tomasulo

Jason C. Tomasulo, JD, is Senior Counsel with Cohen Seglias. Jason focuses his practice on construction law and government contracts. Jason represents owners, general contractors, subcontractors, suppliers and sureties. His experience includes all aspects of the construction process, from contract analysis and negotiation to project counseling to dispute resolution. He says, “In today’s economy, it […]

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A Personal Perspective on the use of P3s, by Chris Matthews

Chris Matthews, PE, is a Certified Project Manager with ARCADIS in Columbia, MD. For more than 15 years, Matthews has been a member of the EJCDC and has twice served as its Chair.  In an article published by the National Association of Surety Bond Producers in their Spring 2015 edition of Surety Bond Quarterly, Matthews shares his knowledgeable assessment […]

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Fair is Fair…Right? Basic Principles of Risk Allocation in Construction Documents – Part 2 by Kevin O’Beirne, PE

Continued from Part 1–How do [sub-standard] clauses get into [construction] contracts? The answer is twofold: 1) . . . as provisions are added and modified on an individual-paragraph basis. . . 2) They are often drafted by the owner’s attorney, who is often not a “contracts attorney” and may not fully-understand the effects of such provisions. . […]

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Fair is Fair…Right? Basic Principles of Risk Allocation in Construction Documents, Part 1, by Kevin O’Beirne, Chair EJCDC

Your mother probably taught you the original Golden Rule: “Do unto others as you would have them do unto you.”  Then when you were older you undoubtedly learned the real Golden Rule: “He who hath the gold maketh the rules.”  Unfortunately, the latter Golden Rule is usually a basic tenant of construction contract preparation, and […]

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