negligence

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Dur v. Western Branch Diesel, Inc.
2007 U.S. App. LEXIS 16237 (4th Cir. July 9, 2007)
Following the precedent of the Supreme Court of Virginia in Sensenbreunner v. Rust. Orling & Neale, Architects, Inc., 374 S.E.2d 55 (Va. 1988), the Fourth Circuit Court of Appeals upheld the district court’s grant of a motion for summary judgment. The Court held that damage to an owner’s boat caused by an electrical fire fell within the scope of the contract between the owner’s general contractor and the subcontractor and amounted to nothing more than economic loss, which barred the owner from maintaining a cause of action for negligence against the subcontractor.

Mellon v. Shriners Hospitals for Children
2007 Mass. Super. LEXIS 188 (Mass. Super. Ct. June 26, 2007)
The Superior Court of Massachusetts recently considered whether an architect of record on a construction project owed a duty to a third party construction worker on the project for injuries sustained as a result of improper installation of grates. To resolve this issue, the Court found that the whether a duty was owed rested on the language of the architectural services agreement at issue and the level of control the Architect exerted on the job site.

Integrated Project Services v. HMS Interiors, Inc.
2007 Pa. Super 246, 2007 Pa. Super. LEXIS 2606 (Pa. Super Ct., April 16, 2007)
This is an appeal from a decision in the lower court wherein a general contractor, “Integrated Project Services, (“General Contractor”) sued a subcontractor, HMS Interiors, Inc. (“Subcontractor”) for a declaratory judgment that the Subcontractor was obligated to indemnify the General Contractor for the General Contractor’s negligence. The Subcontractor filed a motion for judgment on the pleadings which was granted by the lower court and the General Contractor appealed that decision.

Carlson v. SALA Architects, Inc.
2007 Minn. App. LEXIS 74
The of Minnesota Court of Appeals reversed entry of summary judgment in favor of a purchaser of architectural services, holding, among other things, that the relationship between an architect and its client is not per se a fiduciary relationship. Rather, the Court held that whether a fiduciary relationship exists was a question of fact which was unable to be resolved on summary judgment.

EBWS, LLC v. Britly Corporation
2007 VT 37; 2007 Vt. LEXIS 69 (Vt. May 25, 2007)
The Vermont Supreme Court held that the cost of an owner’s anticipated voluntary payments of employee wages and for product purchases during the temporary shutdown of a creamery pending repair of construction defects were not recoverable consequential damages because they could not reasonably have been within the contemplation of the defendant when it contracted to build the creamery.

Turner Constr. Co. v. Am. Mfrs. Mut. Ins. Co.
2007 U.S. Dist. LEXIS 32640 (S.D.N.Y. Apr. 30, 2007)
Plaintiff Turner Construction Company entered into a construction management agreement with Central Synagogue in Manhattan for renovation work which included the installation of central air conditioning. The HVAC contractor on the project was Trident Mechanical Systems, Inc. During the project, a fire broke out, started by an employee of the roofing contractor who had been using a propane torch. The fire, which ordinarily would have caused minimal damage, was accelerated by exhaust fans that had been installed in the roof, and caused several millions of dollars damage to the landmark Synagogue. The Synagogue’s insurer, Wausau, sued Turner and some of the project’s contractors, to recover amounts it paid the Synagogue. The trial was bifurcated, trying liability first, then damages. Liability was determined as: Turner 50%, the roofing contractor 30%, the general contractor 15%, and Trident 0%. A settlement was reached before the damages portion of the trial began.

Universal Underwriters Insurance Co. v. A. Richard Kacin, Inc.
916 A.2d 686 (Pa. Super. Ct. 2007)
The Superior Court of Pennsylvania held that the American Institute of Architects’ (“AIA”) form waiver of subrogation clause barred a subrogation claim even where the loss was created by the contractor’s own negligence. Relying on Penn Avenue Place Assoc., L.P. v. Century Steel Erectors, Inc., 798 A.2d 256 (Pa. Super. Ct. 2002), the court held that a warranty provision did not invalidate the waiver of subrogation and opined that the warranty provision provided a remedy only to the extent that losses were not covered by insurance. The court further held that an insurer does not need to be party to the contract containing the waiver of subrogation clause nor does the insurer need to consent to or have notice of the waiver of subrogation clause in order for it to be enforceable.

Dynalectric Co. v. Whittenberg Constr. Co.
2007 U.S. Dist. LEXIS 27025 (W.D. Ky. Apr. 10, 2007)
Defendant project-owner Luther F. Carson Four Rivers Center, Inc. contracted with Whittenberg Construction Company to serve as general contractor in the construction of a fine arts facility and with defendant Ray Black & Son, Inc. to serve as construction manager. Whittenberg contracted the electrical contracting work to Plaintiff Dynalectric. Dynalectric brought suit against Four Rivers and Black, alleging that they had caused its work to take longer and cost more than anticipated and as a result Dynalectric had not been fully compensated for its work on the project.

Harborview Office Ctr., LLC v. Camosy Inc.
2006 Wisc. App. LEXIS 149 (Wis. Ct. App. Feb. 15, 2006)
Project owner Harborview entered into a contract for the construction of a three-story office building. After discovering significant water infiltration problems, Harborview filed suit against the parties who had provided services in its construction: the general contractor, the architectural firm, the installer of aluminum windows, and the installer of the Exterior Insulation and Finishing System (EIFS). Harborview alleged negligence and breach of contract against each and claimed that in order to resolve the water infiltration problem it would be necessary to remove and replace all of the building’s windows. Harborview hired an expert, who was an architect and engineer, to identify the causes of the problem, evaluate a correction process, and ultimately oversee the remediation process.

Matrix Construction, LLC v. Barton Malow and Schoolcraft College
2006 Mich. App. LEXIS 429, No. 265156 (February 21, 2006)
In Matrix Construction, LLC v. Barton Malow and Schoolcraft College, 2006 Mich. App. LEXIS 429, No. 265156 (February 21, 2006), the Court held that a contractor could not maintain a suit against a construction manager for negligence where the alleged duty arose under the construction manager’s contract with the owner.
Contractor, Matrix Construction, LLC entered into a contract with Owner, Schoolcraft College to furnish and install numerous items for a construction project. Owner also contracted with Construction Manager, Barton Malow to manage and supervise Contractor’s work on the project. Contractor filed suit against Construction Manager alleging that Construction Manager negligently managed the project by failing to properly “supervise, coordinate, plan and schedule the work performed on the project.”