1. Issue: Enforceability of arbitration clause that specified submittal of disputes to a defunct arbitration association. Hillhouse v. Chris Cook Construction, Inc. Supreme Court of Mississippi (2021). Summary: The 2013 contract for a residential design/construction project stipulated that all claims and disputes would be submitted to the Southern Arbitration and Mediation Association for binding resolution. The
1. Issue: Applicability of state building codes to a project undertaken by a bi-state commission created under the U.S. Constitution’s Compact Clause. Delaware River Joint Toll Bridge Commission v. Secretary, Pennsylvania Department of Labor and Industry. United States Court of Appeals for the Third Circuit (2021). Summary: In 1934 the State of New Jersey and the
Eight months into a residential construction project the homeowners and the contractor were at odds regarding the quality of the work and alleged “discrepancies” in the contractor’s invoices. After an unsuccessful mediation, the dispute was arbitrated. Following a five-day evidentiary hearing, the homeowners objected to the proceedings, complaining that the arbitrator had shown bias toward the contractor, and had repeatedly fallen asleep, including during the presentation of evidence by the homeowners. The arbitrator denied the homeowners’ motion that he recuse himself from the proceedings, and issued an arbitration award of $320,000 in favor of the contractor.
A subcontractor warranty endorsement (also known by various other names, such as “Subcontractor Endorsement” or “Contractor’s Special Conditions”) is a supplement to a general contractor’s commercial general liability (CGL) policy that lists risk-transfer requirements that the insured contractor must meet in its subcontracts. The endorsements sometimes impose harsh consequences, such as nullification of insurance coverage, on general contractors that fail to comply with the endorsement requirements.
Construction Associates of Spokane is a general contractor. An employee of a subcontractor, Merit Electric, was injured on a Construction Associates project and later sued the general contractor seeking damages for the injuries. Construction Associates tendered the lawsuit to Merit Electric’s insurance broker, asserting additional insured status under Merit’s commercial general liability insurance policy. In support of the tender, Construction Associates presented a certificate of insurance, issued by the broker, showing Construction Associates’ additional insured status.
The 2014 Corps of Engineers contract called for dredging of the Quillayute Waterway (including an adjacent marina known as the boat basin) in La Push, Washington. The waterway is dredged every 2-3 years. The solicitation for the contract urged bidders to conduct a site visit to inspect the “character, quality, and quantity of surface and subsurface materials or obstacles,” but the site visit was not mandatory. Marine Industrial did not inspect the site.
The architectural firm (Architect), Johnson Nathan Strohe, designed an apartment building in Denver. The Architect retained MEP Engineering (Engineer) for the design of the building’s mechanical, electrical, and plumbing systems. The professional services agreement between Architect and Engineer was drafted by the Engineer and contained a limitation of the Engineer’s liability.
Bulley & Andrews was the general contractor on a project on South Riverside in Chicago. Several years earlier Bulley & Andrews had acquired a company called Takao Nagai Concrete Restoration. Though it was eventually renamed Bulley & Andrews Concrete Restoration (Bulley Concrete), this subsidiary company was operated as a separate entity. The two companies had
Summary: The Graphic Builders (TGB) was the general contractor on an apartment building construction project in Boston. TGB retained a subcontractor, RCM Modular, to fabricate, deliver, and assemble modular components of the apartment building. TGB required RCM to furnish a subcontractor’s performance bond covering RCM’s work. Arch Insurance issued the required bond. Based on excerpts,
Summary: Forney Enterprises entered into a contract with the federal government to repair and upgrade staircases in the Pentagon. Forney then entered into a subcontract with Dickson, a professional engineer, under which Dickson, as “Project Manager,” performed supervisory duties including coordinating deliveries, inspecting materials, making field measurements, and supervising demolition. After more than three years
Summary: The City of Puyallup contracted with Conway Construction Company to build a road—reportedly America’s first arterial roadway built with pervious concrete. There were problems with the project, including contentions by the City that Conway’s work did not meet the requirements of the specifications, and site safety issues. The City eventually issued a notice of
Summary: Plaintiff Johnson-Lancaster supplied (and apparently installed) food service equipment as part of the renovation of the Prince George’s County Courthouse cafeteria. The subcontractor that had engaged Johnson-Lancaster failed to pay for the materials and services, resulting in a reported balance owed of $175,571. Johnson-Lancaster submitted a copy of its claim to the prime contractor,
APCO Construction was the general contractor on a Las Vegas construction project that ground to a halt in late 2008. APCO subcontracted wood-framing, sheathing, and shimming work to Zitting Construction. The subcontract stated that payment to Zitting was conditioned on APCO’s receipt of payment from the project owner, Gemstone—as the Nevada Supreme Court described it, this was “known colloquially as a pay-if-paid clause.”
DH Mechanical provided heating, ventilating, and air conditioning construction services for a building construction project in Chicago. A TDH employee plunged through an unguarded opening and fell 22 feet, sustaining serious injuries. The employee sued the construction manager, Prairie Management and Development, and the project owner, Rockwell Properties, alleging negligent supervision and monitoring of the work of the subcontractors and of the worksite; the lawsuit also included claims against other project participants. The lawsuit did not contain any direct or express claims or allegations against TDH Mechanical, which was not subject to injury litigation by an employee, by virtue of the workers’ compensation laws.
In 1934 the State of New Jersey and the Commonwealth of Pennsylvania enacted laws forming the Delaware River Joint Toll Bridge Commission. As stated in the Constitution (Article I), all agreements and compacts between the states must be approved by Congress—such approval was given to the toll bridge agreement between Pennsylvania and New Jersey in 1935. The Commission was granted sweeping authority to own, construct, maintain, and operate bridges and related improvements and facilities, and to “exercise all other powers…reasonably necessary to [the Commission’s] authorized purposes…,” specifically including the
exercise of powers with respect to its property and affairs. These broad powers were stated to be subject to an exception: the Commission was expressly denied the power to levy taxes.
construction specifications should be consistent with “the four C’s”: clear, concise, complete, and correct.
Applicability of statute that prohibits the contractual elimination of tort liability, to a contract clause waiving the right to subrogation. Rural Mutual Insurance Co. v. Lester Buildings, LLC. Supreme Court of Wisconsin (2019)
Project owner’s liability for delays arising from design review comments that deviated from the contractually-established design process. Appeals of RBC Construction Corp. Armed Services Board of Contract Appeals (2020), by Hugh Anderson
Timeliness of construction defect claims—commencement of California’s 10 year statutory repose period. Hensel Phelps Construction Co. v. Superior Court. Court of Appeals of California (2020).by Hugh Anderson
Summary: John Foley was an employee of a subcontractor. He injured his back while pulling rebar from a tangled storage pile. Builtech was the general contractor. Foley sued Builtech, alleging negligence, failure to provide a safe workplace, and premises liability. Builtech moved for summary judgment, contending that it did not have actual or constructive notice
Summary: Clark Bros., Inc., was the general contractor on an arsenic removal water treatment plant project for the North Edwards Water District in Kern County, California. Clark furnished a payment bond issued by Travelers. Clark entered into a subcontract with Crosno Construction under which Crosno was to fabricate, erect, and coat two 250,000-gallon welded steel
Summary: The McDonnel Group was the general contractor for the renovation of the historic Jung Hotel in New Orleans. McDonnel purchased a builder’s risk policy, expressly including flood insurance. Two years into the project, on August 5, 2017, a heavy rain caused $3.2 million in damage to the work in progress. McDonnel made a claim
Summary: Otter Creek Investments contracted with Olmstead for construction of a convenience store and gas station, on a cost-plus-fee basis. Eventually the project ran into budget problems, and there was confusion about the payment of some of the subcontractors. The contractor submitted conflicting invoices for the work, and failed to provide requested documentation and explanation.
Summary: The Corps of Engineers entered into a contract with Buck Town Contractors to rebuild a hurricane protection levee in St. Charles Parish, Louisiana. The design documents included detailed requirements regarding the placement of the specified geotextile material at the base of the levee. One requirement was that the geotextile was to be installed in
Summary: In 2009 Tropical Storm Ida struck El Salvador, causing widespread damage. Two years later the United States Agency for International Development (USAID) embarked on a program to build several schools and a health clinic in El Salvador, to replace facilities that had been destroyed or damaged by the storm. USAID had a master contract
Summary: In 2004 Skanska was the general contractor on a National Institutes of Health research facility project in Baltimore. Skanska subcontracted the masonry façade work to Long Masonry. Years later, in 2013, the façade that Long had constructed collapsed as a result of Long’s failure to construct the façade according to the design or industry
Summary: In 2003 the City of Cleveland concluded that relatively few city residents were employed on public works projects funded by the city. Cleveland therefore passed an ordinance requiring that 20% of the total construction work hours on major municipal construction projects be performed by city residents. Public works contracts were required to specify penalties
Summary: Broward County, Florida, entered into a contract with an architectural firm for construction phase services on a project at the Fort Lauderdale Airport. The County also entered into a contract with a construction contractor. Both contracts contained routine provisions that are found in industry-standard contracts, such as those published by EJCDC, concerning the role
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
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
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
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
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
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
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
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?
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.
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).
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.
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
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
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,
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
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
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
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
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
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
Previous Court Decisions
The following information was compiled for the October 2015 EJCDC Full Committee Meeting. Click the link below to download a PDF document that provides a handy reference guide to significant court cases concerning contractual relationships in construction projects in various jurisdictions within the U. S. Cases include:
Issue: Construction Manager at Risk’s right to rely on drawings and specifications furnished by Owner, under implied warranty of design. Coghlin Electrical Contractors, Inc. v. Gilbane Building Company. Supreme Judicial Court of Massachusetts (2015).
Issue: Construction Manager as Advisor/Agent—liability for site safety. Hunt Construction Group, Inc., v. Garrett. Indiana Supreme Court (2012)
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)
Issue: Interpretation of “substantial completion” with respect to a statute of Horning v. Penrose Plumbing & Heating, Inc. Supreme Court of Wyoming (2014)
Issue: Official immunity of engineering firm functioning as city engineer. Kariniemi v. City of Rockford. Court of Appeals of Minnesota (2015)
Issue: Viability of supplier’s claim against design engineer. State Ready Mix, Inc., v. Moffatt & Nichol. Court of Appeals of California (2015).EJCDC October 2015 case summaries
The following information was compiled for the June 2015 EJCDC Full Committee Meeting. Click the link below to download a PDF document that provides a handy reference guide to significant court cases concerning contractual relationships in construction projects in various jurisdictions within the U. S. Cases include:
Issue: Effect of failing to report a claim within the claims period, under a claims-‐ made-‐and reported professional liability policy. Anderson v. Aul. Wisconsin Supreme Court (2015)
Issue: Consequences of manipulation of unit price bids. Celco Construction Corp. v. Town of Avon. Massachusetts Appeals Court (2015)
Issue: Responsibility for ambiguity in escalator design. Otis Elevator Co. v. W.G. Yates & Sons Construction Co. United States Court of Appeals, Eleventh Circuit (2014)
Issue: Construction defects in condominium project. Saratoga at Toms River Condominium Association, Inc. v. Menk Corporation. Superior Court of New Jersey, Appellate Division (2014)
Issue: Did the contractor on a federal project make a formal claim, as a required precondition to seeking recovery of additional compensation? Construction Group, LLC v. Department of Homeland Security. United States Civilian Board of Contract Appeals (2015)
Issue: Enforceability of a no-‐damages-‐for delay clause. Zachry Construction Corp. v. Port of Houston Authority. Texas Supreme Court (2014)
Issue: Application of insurance policy’s “total pollution exclusion.” Advanced Waste Services, Inc. v. United Milwaukee Scrap, LLC. Court of Appeals of Wisconsin (2015)
The following information was compiled for the February 2015 EJCDC Full Committee Meeting. Click the link below to download a PDF document that provides a handy reference guide to significant court cases concerning contractual relationships in construction projects in various jurisdictions within the U. S. Cases include:
Issue: When does the statutory limitations period begin for an action based on a contractual indemnification clause? Miller-‐Davis Company v. Ahrens Construction, Inc. Michigan Supreme Court. (2014)
Issue: Implication of use of the term “condition precedent” in subcontract payment clause. Transtar Electric, Inc. v. A.E.M Electric Services Corporation. Supreme Court of Ohio (2014).
Issue: Enforceability of liquidated damages of $700/day. Boone Coleman Construction, Inc., v. Village of Piketon, Ohio. Court of Appeals of Ohio (2014)
Issue: impact of fraudulent concealment on limitation period for bringing a payment bond claim. Minnesota Laborers Health and Welfare Fund v. Granite Re Inc. Supreme Court of Minnesota (2014)
Issues: (a) Applicable statute of limitations for indemnification claim; (b) contractual stipulations regarding time when limitation period starts. 15th Place Condominium Association v. South Campus Development Team LLC. Appellate Court of Illinois (2014)
Issue: Subcontractor’s disregard of markings on structural drawings. Goodrich Quality Theaters, Inc., v. Fostcorp Heating and Cooling, Inc. Court of Appeals of Indiana (2014)
Issues: (a) duty to continue performance pending resolution of change order issue; (b) contractor’s failure to comply with notice requirement regarding differing site conditions. JEM Contracting, Inc., v. Morrison-‐Maierle, Inc. Supreme Court of Montana (2014
EJCDC-February-2015-case-summaries
The following information was compiled for the October 2014 EJCDC Full Committee Meeting. Click the link below to download a PDF document that provides a handy reference guide to significant court cases concerning contractual relationships in construction projects in various jurisdictions within the U. S.
EJCDC October 2014 case summaries
The following information was compiled for the June 2014 EJCDC Full Committee Meeting. Click the link below to download a PDF document that provides a handy reference guide to significant court cases concerning contractual relationships in construction projects in various jurisdictions within the U. S.
Summary of Relevant Court Cases – June 2014
The following information was compiled for the February 2014 EJCDC Full Committee Meeting.
Click the link below to download a PDF document that provides a handy reference guide to significant court cases concerning contractual relationships in construction projects in various jurisdictions within the U. S.
Summary of Relevant Court Cases – February 2014
The following information was compiled for the September 2013 EJCDC Full Committee Meeting.
Click the link below to download a PDF document that provides a handy reference guide to significant court cases concerning contractual relationships in construction projects in various jurisdictions within the U. S.
Summary of Relevant Court Cases – September 2013
The following information was compiled for the June 2013 EJCDC Full Committee Meeting.
Click the link below to download a PDF document that provides a handy reference guide to significant court cases concerning contractual relationships in construction projects in various jurisdictions within the U. S.
Summary of Relevant Court Cases – June 2013
The following information was compiled for the February, 2013 EJCDC Full Committee Meeting.
Click the link below to download a PDF document that provides a handy reference table of significant court cases concerning contractual relationships in construction projects in various jurisdictions within the U. S.
Summary of Relevant Court Cases – February 2013
The following information was compiled for the November, 2012 EJCDC Full Committee Meeting.
Click the link below to download a PDF document that provides a handy reference table of significant court cases concerning contractual relationships in construction projects in various jurisdictions within the U. S.
Table of Relevant Court Cases – November 2012
The following information was compiled for the June 9, 2012 EJCDC Full Committee Meeting.
Click the link below to download a PDF document that provides a handy reference table of significant court cases concerning contractual relationships in construction projects in various jurisdictions within the U. S.
Table of Relevant Court Cases – June 2012
The following information was compiled for the January 27, 2012 EJCDC Full Committee Meeting.
Click the link below to download a PDF document that provides a handy reference table of significant court cases concerning contractual relationships in construction projects in various jurisdictions within the U. S.
Table of Relevant Court Cases – January 2012
The following information was compiled for the October 8, 2011 EJCDC Meeting EJCDC Meeting.
Click the link below to download a PDF document that provides a handy reference table of significant court cases.
Table of Relevant Court Cases – October 2011
The following information was compiled for the May 13, 2011 EJCDC Meeting EJCDC Meeting.
Click the link below to download a PDF document that provides a handy reference table of significant court cases.
Table of Relevant Court Cases – May 2011
The following information was compiled for the June 24, 2010 EJCDC Meeting EJCDC Meeting.
Click the link below to download a PDF document that provides a handy reference table of significant court cases.
Table of Relevant Court Cases – June 2010
The following information was compiled for the February 10, 2010 EJCDC Meeting EJCDC Meeting.
Click the link below to download a PDF document that provides a handy reference table of significant court cases.
Table of Relevant Court Cases – February 2010
The following information was compiled for the September 25-26, 2009 EJCDC Meeting.
Click the link below to download a PDF document that provides a handy reference table of significant court cases.
Table of Relevant Court Cases – September 2009
Witt v. LaGorce – In the Witt v. LaGorce (3rd DCA Case No. 3D08-1812), the Florida 3rd District Court of Appeals has ruled that pursuant to Moransais v. Heathman, 744 So.2d 793 (Fla. 1999), and the Florida Statute licensing Geologists, even if an individual professional is specifically referenced in a limitation of liability provision, “such a limitation would be unenforceable as a matter of law.”
If the Court’s Decision herein becomes the law of Florida, individual professionals (except lawyers, who can limit their liability in accordance with the Rules regulating the Bar) and doctors (who can limit their liability pursuant to Florida Statutes) will face unlimited personal exposure to clients whether they operate those corporations or not. Further, this case may bring into question whether individual professionals can lawfully enforce a contractual indemnification provision.
The Florida Engineering Society and other design professional and related groups are filing a friend of the court brief in this matter before the Florida Supreme Court.
Witt v. LaGorce – The Florida Engineering Society and other design professional and related groups have filed a friend of the court brief in this matter before the Florida Supreme Court. Earlier following a trial, in Witt v. LaGorce (3rd DCA Case No. 3D08-1812), the Florida 3rd District Court of Appeals had ruled that pursuant to Moransais v. Heathman, 744 So.2d 793 (Fla. 1999), and the Florida Statute licensing Geologists, even if an individual professional is specifically referenced in a limitation of liability provision, “such a limitation would be unenforceable as a matter of law.”
If the appeals court’s decision herein becomes the law of Florida, individual professionals (except lawyers, who can limit their liability in accordance with the Rules regulating the Bar) and doctors (who can limit their liability pursuant to Florida Statutes) will face unlimited personal exposure to clients whether they operate those corporations or not. Further, this case may bring into question whether individual professionals can lawfully enforce a contractual indemnification provision.
The Supreme Court brief states that Florida design and construction professionals have negotiated limitation of liability provisions to allocate risk in consulting agreements for nearly 40 years. FES and FICE believe the trial court’s decision that limitation of liability provisions are invalid and unenforceable and will call into question the validity of thousands of contracts, bring great harm to the state’s construction industry, and lead to a flood of unnecessary litigation.
