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TEXAS COURT OF APPEALS HOLDS THAT AGGREGATE ANALYSIS DOES CONSTITUTE THE PRACTICE OF ENGINEERING

In Ronald R. Wagner & Co., LP v. Apex Geoscience Inc. and Braun Intertec Corporation, 2018 WL 4344713 (Tex. Ct. App., Sept. 18, 2018), the Texas Court of Appeals held that preparation of an aggregate analysis report was not exempt from the Texas Engineering Practice Act. Ronald R. Wagner & Co., LP (“Wagner”), a contractor specializing in the application of pavement sealer and pavement surface treatment, bid a road project for the Texas Department of Transportation (“TXDOT”). Wagner received quotes for materials for the project from Advantage Asph

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LOUISIANA FEDERAL DISTRICT COURT RULES CONTRACTOR COULD NOT RECOVER FOR ACTS OF CONTRACT ADMINISTRATION MADE BY ARCHITECT IN GOOD FAITH

In Patriot Contracting, LLC v. Star Insurance Company, 2018 WL 1123586 (U.S. Dist. Ct., E.D. La.), the United States District Court for the Eastern District of Louisiana ruled that exculpatory clauses in the general contract benefitting the architect were enforceable.

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DESIGN PROFESSIONALS MAY OWE A DUTY DIRECTLY TO CONTRACTORS FOR DEFECTIVE PLANS AND SPECIFICATIONS

In Suffolk Construction Co., Inc v. Rodriquez Quiroga Architects, et al., 2018 WL 1335185 (U.S. Dist. Ct., S.D. Fla. Mar 15, 2018), the United States District Court for the Southern District of Florida held that an architect and engineer breached owed a duty to the contractor by providing design plans which the contractor relied upon.

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INDIANA FEDERAL DISTRICT COURT CLARIFIES THE REQUIREMENTS FOR APPLICATION OF ECONOMIC LOSS DOCTRINE

In City of Whiting, Indiana v. Whitney, Bailey, Cox, & Magnani, LLC, 2018 WL 1400890 (U.S. Dist. Ct., N.D. Ind. March 20, 2018), the United States District Court for the Northern District of Indiana held that an owner’s tort claim for damage caused by the failure of a retaining wall designed by a subconsulting engineering firm was barred because all claimed damages were to the overall project and therefore barred by Indiana’s economic loss doctrine.

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THE COURT OF APPEALS OF MICHIGAN HOLDS THAT AN ARCHITECT OWED NO COMMON LAW DUTY TO OWNER FOR ALLEGED PROFESSIONAL NEGLIGENCE

In Auburn Hills Tax Increment Finance Authority v. Haussman Construction Co., 2018 WL 385057 (Mich. Ct. App. January 11, 2018), the Michigan Court of Appeals held that the owner of a construction project could not maintain a professional negligence claim against the architect for failing to adequately review payment applications.

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THE SECOND CIRCUIT HOLDS A PROVISION FOR SEALED DRAWINGS DOES NOT SUFFICIENTLY LINK THE OWNER AND DESIGN PROFESSIONAL FOR PURPOSES OF CONTRACTUAL PRIVITY EQUIVALENCE TO ALLOW A DIRECT SUIT BY THE OWNER AGAINST THE DESIGN PROFESSIONAL

In Stapleton v. Barret Crane Design & Engineering, 2018 WL 985775, (2nd Cir. 2018), the United States Court of Appeals for the Second Circuit found that contractual privity, or its functional equivalent, did not exist between an owner and engineering firm retained by the design-builder, because there was no contract between the parties and the parties did not communicate directly to sufficiently “link” them.

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COURT OF APPEALS OF TEXAS HOLDS THE CERTIFICATE OF MERIT REQUIREMENT DOES NOT APPLY TO THIRD PARTY CONTRIBUTION CLAIMS

In Engineering and Terminal Services, L.P. v. TARSCO and Orcus Fire Protection, LLC, 525 S.W. 3d 394 (TX 2018), the Court of Appeals of Texas held the statutory requirement to file a Certificate of Merit along with a lawsuit based on professional negligence of an engineer does not apply to third party claims for contribution.

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CALIFORNIA FEDERAL DISTRICT COURT EXTENDS SPEARIN DOCTRINE TO A DESIGN BUILD PROJECT

In U.S. for benefit of Bonita Pipeline, Inc. v. Balfour Beatty Construction LLC, et. al., 2017 WL 2869721 (U.S. Dist. Ct., S.D. Cal.), the United States District Court for the Southern District of California ruled the Spearin Doctrine, in which an entity providing plans or specifications is liable for deficiencies in the plans or specifications, applies to subcontractors in design-build projects, even when plans or specifications are by definition meant to be further refined by the subcontractor.

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MISSISSIPPI COURT OF APPEALS HOLDS CLAIMS AGAINST ENGINEER ARE BARRED BY THE DOCTRINE OF ACCORD AND SATISFACTION

In Triangle Construction Company, Inc. v. Fouche and Associates, Inc., 218 So. 3d 1180 (Mississippi 2017), Triangle Construction Company, Inc. (“Triangle”) contracted with East Madison Water Association (“EMWA”) to build a water system in Madison and Leake Counties in Mississippi. The contract designated Fouche and Associates (“Fouche”) as the project engineer, although Fouche was not a signatory to the contract. Triangle nevertheless argued Fouche was a party to the contract because Fouche’s seal was affixed to the contract’s cover, was designated as the pr

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SUPREME COURT OF MONTANA RULES LIMITATION OF LIABILITY IS ENFORCEABLE IN A CONTRACT ACTION AS LONG AS IT DOES NOT CONTRACT AWAY ALL LIABILITY, BUT NOT IN A PROFESSIONAL NEGLIGENCE ACTION

In Zirkelbach Construction, Inc. v. DOWL, LLC, 402 P.3d 1244 (Mont. 2017), the Supreme Court of Montana ruled design professionals can contract to limit liability for a contract claim, even if the limitation is a nominal percentage of the overall fees paid, as long as the parties do not disclaim all liability outright. However, the Court held that the limitation did not apply to the negligence claim in the suit.

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CALIFORNIA COURT OF APPEALS HOLDS THAT THE RELATION BACK DOCTRINE DOES NOT APPLY TO THE CERTIFICATE OF MERIT REQUIREMENT IN PROFESSIONAL NEGLIGENCE ACTIONS AGAINST ARCHITECTS AND ENGINEERS

In Curtis Engineering Corporation v. Superior Court of San Diego, 16 Cal. App. 5th 542 (Cal. App. Ct. 2017), the Court of Appeals for the Fourth District of California addressed the impact of the relation-back doctrine on the certificate of merit law in professional negligence actions against design professionals. California’s certificate of merit law, codified in the Business and Professions Code, Section 411.35, requires an attorney to consult with an architect or engineer in the same discipline before filing a complaint against a licensed architect or register

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ILLINOIS COURT OF APPEALS AFFIRMS DESIGN PROFESSIONALS NOT LIABLE FOR BREACH OF WARRANTY OF HABITABILITY DESPITE CONTRACTOR’S INSOLVENCY

In Sierra Court Condominium Association v. Champion Aluminum Corporation, 2017 IL App (1st) 143364, 75 N.E.3d 260 (Ill. Ct. App. 2017), First District Appellate Court of Illinois reaffirmed architects and engineering firms are not subject to the implied warranty of habitability of construction, even in the event the developer and general contractor are insolvent.

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OREGON SUPREME COURT HOLDS THAT THE PRACTICE OF ARCHITECTURE INCLUDES THE DEVELOPMENT OF MASTER PLANS

In Twist Architecture & Design, Inc. v. Oregon Board of Architect Examiners, 361 Or. 507, 395 P.3d 574 (Or. 2017), the Supreme Court of Oregon ruled that the “practice of architecture” includes the preparation of master plans drawn to scale for the development of a project, even if construction drawings or specifications are not ultimately produced.

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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ANALYZES ARCHITECTURAL COPYRIGHT INFRINGEMENT BETWEEN TWO HOMEBUILDERS

In Sedgewick Homes, LLC v. Stillwater Homes, Inc., 2017 WL 3221488 (W.D. NC. 2017), the United States District Court for the Western District of North Carolina ruled there was a genuine issue of material fact as to whether Stillwater Homes, Inc. (“Stillwater”) infringed upon the copyrighted architectural plans of its competitor, Sedgewick Homes, LLC (“Sedgewick”). Sedgewick and Stillwater are home builders in North Carolina, who both interacted with two customers, the Bivins and the Shoemakers.

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SUBSTANTIAL COMPLETION IS DETERMINABLE BY COURTS DESPITE ARCHITECT’S OPINION

In Parkcrest Builders, LLC v. Housing Authority of New Orleans, 2017 WL 3394033 (E.D. LA. 2017), the United States District Court for the Eastern District of Louisiana held the Court could determine whether substantial completion had been achieved, despite a contract provision assigning this determination to the Architect.

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FLORIDA COURT OF APPEALS DETERMINES DESIGN PROFESSIONAL MUST HOLD LICENSE TO BE SUED FOR PROFESSIONAL NEGLIGENCE

In Sunset Beach Investments, LLC v. Kimley-Horn and Associates, Inc., 207 So. 3d 1012 (Fla. Ct. App. 2017), the Fourth District Court of Appeal of Florida held an engineering intern could not be liable for professional negligence. The Court explained an “engineer intern” could not be considered a professional because he does not maintain a license.

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MISSOURI COURT OF APPEALS INTERPRETS STATUTE REGARDING WHAT IS INCIDENTAL TO THE PRACTICE OF ARCHITECTURE

In Curtis v. Miss. Board For Architects, Prof. Engineers, Prof. Land Surveyors, and Prof. Landscape Architects, No. WD 80174, 2017 WL 2241516 (Mo. Ct. App. May 23, 2017), the Missouri Court of Appeals affirmed the Missouri Board of Architects, Professional Engineers, Professional Land Surveyors, and Professional Landscape Architects’ (the “Board”) disciplinary order against an architect for violations of a previous probation order. Donald Dustin Curtis was an architect based in Arizona and licensed in multiple jurisdictions, including Missouri. Mr. Curtis’s

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SUPREME COURT OF TEXAS CLARIFIES HOW CERTIFYING EXPERT MAY DEMONSTRATE KNOWLEDGE OF THE DEFENDANT DESIGN PROFESSIONAL’S AREA OF PRACTICE PURSUANT TO TEXAS’S CERTIFICATE OF MERIT STATUTE

In Melden & Hunt, Inc. v. East Rio Hondo Water Supply Corporation, No. 16-0078, 2017 WL 2492006 (Tex. June 9, 2017), East Rio Hondo Water Supply Corp. contracted with Melden & Hunt, Inc. to provide engineering-design and project-supervision services for a new water-treatment plant in San Benito, Texas. Following substantial completion of the project, East Rio complained about the quality of water treated at the plant and attributed the water-quality issues to the plant’s design and construction. East Rio subsequently filed a complaint against Melden & Hunt a

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK GRANTS AN ARCHITECT’S MOTION FOR SUMMARY JUDGMENT AGAINST CROSS CLAIMS FOR INDEMNIFICATION AND CONTRIBUTION BASED ON CONSTRUCTION DEVIATIONS FROM THE ARCHITECT’S DESIGN

In Corwin v. NYC Bike Share, LLC, No. 14-CV-1285, 2017 WL 1399034 (S.D.N.Y. Apr. 13, 2017), the Southern District of New York granted a Motion for Summary Judgment in favor of Alta Planning + Design + Architecture of New York, PLLC (“APD”) against the City of New York (the “City”) based on deviations from APD’s design of a bike share station which the Court concluded constituted an intervening cause of the alleged damage.

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO DENIES A MOTION FOR SUMMARY JUDGMENT BASED ON THE PLAIN MEANING OF AN ENGINEERING SERVICES CONTRACT

In United States of America v. Osborne, No. 4:11-CV-1029, 2017 WL 1135640 (N.D. Ohio March 27, 2017), the Northern District of Ohio denied a Motion for Summary Judgment filed by Third-Party Defendant William R. Gray Associates, Inc. (“Gray”) based on the permit procurement obligations in Gray’s agreement for engineering services with Third-Party Plaintiff City of Willoughby (the “City”).

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TEXAS’S CERTIFICATE OF MERIT STATUTE REQUIRES CERTIFYING EXPERT TO DEMONSTRATE KNOWLEDGE OF THE DEFENDANT DESIGN PROFESSIONAL’S AREA OF PRACTICE

In Levinson Alcoser Associates, L.P. v. El Pistolón II, LTD., No. 15-0232, 2017 WL 727269 (Tex. Feb. 24, 2017), the Supreme Court of Texas held Texas’s recently amended Certificate of Merit statute requires a plaintiff to accompany his complaint not only with a sworn Certificate of Merit from an expert stating the claim has merit, but also, the Certificate of Merit must demonstrate the expert has knowledge of the area of practice to which the complaint relates.

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT AFFIRMS A LOWER COURT’S DECISION GRANTING A MOTION FOR SUMMARY JUDGMENT BASED ON THE PROFESSIONAL SERVICES EXCLUSIONARY PROVISION IN A COMMERCIAL GENERAL LIABILITY POLICY.

In Orchard, Hiltz & McCliment, Inc. v. Phoenix Insurance Co., Nos. 16-1176 & 16-1231, 2017 WL 244787 (6th Cir. 2017), the United States Court of Appeals for the Sixth Circuit affirmed a lower court’s grant of Summary Judgment against the Engineer, Orchard, Hiltz & McCliment, Inc. (“OHM”)...

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COURT OF APPEALS OF KENTUCKY REVERSES A LOWER COURT’S DECISION GRANTING A MOTION FOR SUMMARY JUDGMENT BASED ON THE ECONOMIC LOSS DOCTRINE.

D.W. Wilburn, Inc. v. K. Norman Berry Associates, Architects, PLLC, No. 2015-CA-1254-MR (Ky. Ct. App. Dec. 22, 2016), the Kentucky Court of Appeals reversed a lower court’s grant of summary judgment in favor of Third-Party Defendant K. Norman Berry Associates, Architects, PLLC, the architect hired by the Oldham County Board of Education to design the North Oldham High School.

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APPELLATE COURT AFFIRMS GRANT OF SUMMARY JUDGMENT BASED ON ILLINOIS’ CONTRIBUTION ACT

In Sandlin v. Harrah’s Illinois Corp., 2016 WL 4585932 (App. Ct. Ill. September 2, 2016), the Appellate Court of Illinois (the “Appellate Court”) affirmed a lower court’s grant of Summary Judgment for Cross-Claim Defendant Hnedak Bobo Group, Inc. (“HBG”) dismissing Cross-Claim Plaintiff Harrah’s Illinois Corporation (“Harrah’s) claims for contribution.

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SUPERIOR COURT OF CONNECTICUT GRANTS DEFENDANT ARCHITECT’S MOTION TO DECIDE QUESTIONS OF LAW AND TO DISPENSE WITH JURY TRIAL BASED ON THE STATUTE OF REPOSE

In Town of Windsor v. Loureiro Engineering Assoc., 2016 WL 4007747 (Conn. Super. Ct. June 20, 2016), the Superior Court of Connecticut (the “Superior Court”) granted a Motion to Decide Questions of Law and to Dispense with a Jury Trial filed by Defendants Loureiro Engineering, Inc., Newman Architects, LLC, Herbert S. Newman, and Michael Raso (collectively, “Defendants”), the engineer and architects hired by Plaintiff the Town of Windsor (the “Town”) to design the Windsor High School auditorium.

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DISTRICT COURT GRANTS ENGINEER’S MOTION FOR JUDGMENT ON THE PLEADINGS BASED ON THE ECONOMIC LOSS DOCTRINE

In Venturedyne, Ltd. v. Carbonyx Inc., 2016 WL 3402807 (N.D. Ind. June 21, 2016), the Northern District of Indiana (the “District Court”) granted a Motion for Judgment on the Pleadings filed by Plaintiff/Counterclaim Defendant Venturedyne, Ltd. d/b/a Scientific Dust Collectors (“SDC”), an engineer hired by Defendant/Crossclaimant Carbonyx, Inc. (“Carbonyx”), to design and manufacture dust collection systems.

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ILLINOIS APPELLATE COURT REFUSES TO EXTEND THE IMPLIED WARRANTY OF HABITABILITY TO ARCHITECTS

In Bd. of Managers of Film Exchange Lofts Condo. Ass’n v. Fitzgerald Associates Architects, P.C., 2016 WL 2841978 (Ill. App. May 11, 2016), the Appellate Court of Illinois consolidated three appeals and affirmed the lower courts’ decisions not to extend the implied warranty of habitability to architects. All three consolidated cases involved condominium boards bringing actions against architects for breach of the implied warranty of habitability, a claim typically alleged against the developer.

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SUPREME COURT OF NEW YORK, APPELLATE DIVISION, AFFIRMS TRIAL COURT ORDER DENYING DEFENDANT ARCHITECT’S MOTION TO DISMISS BASED ON THE STATUTE OF LIMITATIONS, APPLYING THE CONTINUOUS REPRESENTATION DOCTRINE

In Bronstein v. Omega Construction Group, Inc., 2016 WL 1577185 (N.Y. App. April 20, 2016), the Supreme Court of New York, Appellate Division, affirmed a lower court’s denial of a Motion to Dismiss filed by Defendant Michael T. Cetera, an architect hired by Plaintiffs to provide architectural services. In 2006, Plaintiffs entered into an agreement with Mr. Cetera to prepare plans for an addition to their residence.

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