negligence

Subscribe to negligence via RSS

Atlantic City Associates, LLC v. Carter & Burgess Consultants, Inc., et al
2011 U.S. App. LEXIS 9191 (3rd Cir. May 4, 2011)

* Please note that the Third Circuit issued this opinion as a non precedential opinion pursuant to Third Circuit Internal Operating Procedure Rule 5.7.

Atlantic City Associates (“ACA”) hired Carter & Burgess Consultants, Inc. (“C&B”) to oversee construction of a development in Atlantic City, New Jersey. Following numerous delays, ACA sued C&B and obtained a total recovery, including attorneys’ fees, costs and interest, of nearly $13 million. On appeal, C&B argued that the District Court failed to apply several clauses of the parties’ agreement waiving consequential damages, and failed to enforce an additional clause limiting C&B’s total liability to its compensation.

Los Angeles Unified School District v. Great American Insurance Company
49 Cal. 4th 739 (July 12, 2010)

On July 12, 2010, the California Supreme Court filed a ruling significant to public entities entering into contracts for public works projects. In Los Angeles Unified School District v. Great American Insurance Company, the Court held that a public entity “may be required to provide extra compensation if it knew, but failed to disclose, material facts that would affect the contractor’s bid or performance,” even when the failure to disclose information was not fraudulent. Articulating a test modeled after the federal courts’ superior knowledge doctrine, the high court articulated four conditions that must be met for such liability to attach.

Indianapolis – Marion County Public Library v. Charlier Clark & Linard, P.C
2010 Ind. LEXIS 397 (Indiana, June 29, 2010)

The Indianapolis-Marion County Public Library entered into contracts with Woollen Molzan and Partners, Inc. (“Architect”) for the design for the renovation and expansion of the Library’s facility including its parking garage. The Architect entered into subcontracts with Thornton Tomasetti Engineers (“TTE”) and Charlier Clark and Linard, P.C. (“CCL”) to perform architectural and engineering services. TTE performed structural engineering services and CCL administered various services for the Project, including reviewing and inspecting the construction plans and construction progress to determine if construction was in general compliance with the construction documents. The Library never consulted directly with TTE or CCL.

Kuhn Construction Company v. Ocean and Coastal Consultants, Inc.
2010 U.S. Dist. LEXIS 71057 (D. Del. July 15, 2010)

Diamond State Port Corporation (“DSPC”) engaged Ocean and Costal Consultants, Inc. (“OCC”) to prepare engineered drawings, plans, and specifications for a project at the Port of Wilmington in Delaware. In soliciting bids, DSPC utilized the bid documents designed and prepared by OCC. Kuhn Construction Company (“Kuhn”) relied upon those documents to prepare its bid for work on the project. As the lowest bidder, Kuhn entered into a contract with DSPC.

Turnberry Pavillon Partners, L.P. v. M.J. Dean Construction, Inc.
2010 U.S. App. Lexis 9832 (9th Cir. May 13, 2010)

Developer built a luxury condominium tower and hired contractor to serve as both the construction manager and concrete subcontractor. A separate interior drywall and site wall subcontractor was also hired for the Project. A series of lawsuits arose. In the first lawsuit, construction manager was found liable for causing “lost production” and “uncompensated overtime” to site wall subcontractor due to its negligent concrete work as well as negligent construction management. While cross-appeals were pending on the matter Developer paid $2.1 to settle the site wall subcontractor’s claim. In a second case, condominium association sued Developer for construction defects. In turn, Developer filed a third-party complaint against construction manager as well as other subcontractors alleging that their negligence caused defects in the Project. Ultimately, the parties to the second suit reached a settlement whereby Developer and construction manager paid the condominium association $2 million and $600,000 respectively.

Village of Sturtevant v. STS Consultants, Ltd.
2010 Wisc. App. LEXIS 433 (Wis. Ct. App. June 9, 2010)

The Court of Appeals of Wisconsin recently considered whether a design professional could maintain a claim for contribution against a subcontractor on the basis that the subcontractor had a duty to advise that the design was not suited for the intended application. The Court of Appeals upheld the lower court’s dismissal of such claims on the basis that the subcontractor had no design or construction responsibility and therefore could not be a joint tortfeasor.

Lillibridge Health Care Services, Inc. v. Hunton Brady Architects, P.A.
2010 U.S. Dist. LEXIS 34210 (M.D. Fla. April 7, 2010)

Lillibridge Healthcare Services, Inc. sued Hunton Brady Architects, P.A. and Heery International, Inc. for breach of contract, negligent design, and negligent misrepresentation.

Hunton had entered into an agreement with Mediplex Medical Building Corporation (“MMBC”) to prepare documents and to provide other services for the construction of a four story, steel frame medical office building located in Celebration, Florida. MMBC assigned its rights under that contract to Lillibridge. Heery had assumed obligations under a subcontract with Hunton to perform the engineering work for the Project.

GEM Industrial, Inc. v. Sun Trust Bank
2010 U.S. Dist. LEXIS 31042 (N.D. Ohio Mar. 31, 2010)

The United States District Court for the Northern District of Ohio denied a contractor’s claims against a project’s lenders, where the contractor’s claims were based on the lender’s representations that the contractor would be paid.

GEM Industrial was the mechanical contractor for the construction of an ethanol production plant owned by GOE Lima, LLC. Due to budget overruns and cash flow problems, GOE fell behind on monthly payments to GEM. Eventually, GOE requested that GEM enter into a formal payment deferral. Before agreeing to the deferral, GEM asked to meet with representatives of the project’s debt and equity investors, SunTrust Bank and Paladin Homeland Security Fund, LP and Paladin Capital Group, LLC to confirm that sources of funding were available to pay construction costs. GEM asserts that, during its calls with SunTrust and Paladin, representatives for both entities promised and assured GEM that it would be paid for both its already completed work and its work going forward on the plant. After its calls with SunTrust and Paladin, GEM agreed to the payment deferral and continued to perform its mechanical work at the plant.

Excel Construction, Inc. v. HKM Engineering, Inc.
2010 WY 34 (Wyo. Mar. 23, 2010)

The Supreme Court of Wyoming recently reexamined its prior ruling barring a contractor’s assertion of negligence claims against design professionals economic loss rule.

The case pertained to a construction project for the replacement and improvement of water and sewer lines in the Town of Lovell, Wyoming. The Town of Lovell entered into an engineering services agreement with HKM Engineering, Inc. The Town also entered into a construction agreement with Excel Construction, Inc. No contract existed between HKM and Excel.

Flagstaff Affordable Housing LP v. Design Alliance, Inc.
223 P.3d 664, 2010 Ariz. LEXIS 11 (Ariz. Feb. 12, 2010)

In 1995, the Owner of a low income housing project, Flagstaff Affordable Housing Limited Partnership contracted with Design Alliance, Inc. (“Architect”) for the design of the Project. The design had to comply with the Federal Fair Housing Act’s (“FFHA”)accessibility guidelines. The Owner also contracted with Butte Construction Company (“Contractor”) for the construction of the apartments. The Project was completed in 1996.