Design Build

September 29, 2017

UCF sues over defects to football stadium

Source:, September 29, 2017
By: Mary Shanklin

The University of Central Florida’s football stadium has some problems, according to a construction-defect lawsuit the school filed against architects and contractors.

Nicknamed the Bounce House when it opened a decade ago because it shifted slightly as fans jumped in unison, the venue’s metal framing for seating now has “defects and deficiencies” according to the university’s complaint filed this month. in Orange County Circuit Court. The school cited defects with “other framing accessories” in the stadium, too, although it did not elaborate on those in the lawsuit.

UCF has filed a lawsuit to hold the companies involved in constructing the stadium accountable for their role in creating premature wear of the steel,” spokesman Chad Binette said. “We contend that it is requiring more maintenance than it should for its age and use.”

UCF owns Spectrum Stadium and oversaw construction of the 45,000-seat arena together with the Golden Knights direct support group.…

September 29, 2017

Foundation flaws at center of lawsuit filed by Keller school district

Source:, September 29, 2017
By: Sandra Engelland

It was a few years ago when maintenance workers and staff at Trinity Meadows Intermediate School began to notice problems.

Cracks in the walls. Doors that would stick. Heaving sidewalks and widening gaps and cracks in visible parts of the concrete slab.

Now, 11 years after the Keller district’s school opened in north Fort Worth, officials say the problems are much worse than the structure’s age and have filed a lawsuit against the firms that designed and built the $23 million school.

The culprit, according to the lawsuit, is a faulty foundation.

No extensive repairs have been required to date at Trinity Meadows, said Hudson Huff, director of facilities services for the Keller school district. But some work may be needed in the next five years, Huff said.

Officials say it was necessary to file a suit to protect the school district’s interests.…

September 28, 2017

Officials say Oroville Dam’s design and construction caused spillway failure

Source:, September 6, 2017
By: Mary Tyler March

Dive Brief:

  • Months after a spillway failure forced the temporary evacuation of 188,000 Sacramento, CA, area residents, independent safety experts say poor design and construction, as well as inadequate inspections, caused February’s collapse at the Oroville Dam, The Mercury News reported.
  • Thin concrete, insufficient foundations and ill-placed drains caused water to seep through cracks and seams in the dam. Officials said the state could have found such faults if it had used contemporary engineering standards to inspect the 50-year-old structure, though that still could not have corrected the initial problems.
  • The Association of State Dam Safety and the U.S. Society on Dams are performing an independent review of the incident to inform other dam managers of failure warning signs. State and federal teams are also investigating the collapse.
September 28, 2017

Professional Services Exclusion Negates Coverage for Liability Arising Out of Insured’s Failure to Mark Oil Pipeline

Source:, September 18, 2017
By: Jeffrey S. Crowe and Jennifer Hoffman, Sheppard Mullin Richter & Hampton LLP

Energy Insurance Mutual Limited v. Ace American Insurance Company, 14 Cal.App.5th 281 (2017); First Appellate District Court of Appeal, Division Four, Case No. A140656 (July 11, 2017). In Energy Insurance Mutual Limited v. Ace American Insurance Company, the California Court of Appeal held that a “professional services” exclusion applied to bar coverage for claims made against an oil pipeline owner, Kinder Morgan, and its temporary staffing agency, Comforce, following an explosion at a construction site. Kinder Morgan had hired two temporary employees from Comforce to work as construction inspectors on a water supply line project. As a result of Kinder Morgan’s alleged failure to properly mark the oil pipeline, an excavator punctured a high-pressured petroleum line and caused the explosion.…

September 27, 2017

Limitation of Liability Clause Enforced to Limit Recovery to only $550,000 of a $9.5 Million Jury Verdict

Source:, September 2017
By: J. Kent Holland, Jr.

Where a housing developer won a jury verdict for more than $9.5 million against a geotechnical engineer, the court applied the limitation of liability (LoL) clause in the geotech’s contract to cap the liability at $550,000. The developer attempted to avoid the LoL by arguing that the geotech’s conduct was willful and wanton. The trial court allowed evidence in that regard, but the jury found the conduct was not willful and wanton. Therefore, the LoL clause withstood the challenge.  Taylor Morrison of Colorado, Inc. v. Terracon Consultants, Inc., 2017 WL 2180518, 2017 COA 64 (2017).

Of note was the fact that the court allowed the plaintiff’s expert witness to describe in detail the actions of the geotech it deemed to be at fault, but it excluded testimony by the expert that this conduct was “willful and wanton” because that is “not an engineering concept” but rather a “legal concept” for which an engineer cannot testify.

There was a question of whether the geotech’s deposit of $550,000 into the court registry, and an email to counsel for the developer addressing a “mutual dismissal” constituted a statutory “offer of settlement” that would have allowed the geotech to recover an award of its costs and fees of litigation. The court held it did not.…

September 27, 2017

Architect/Design-Builder Responsible for Construction Subcontractor’s Site Safety

Source:, September 2017
By: J. Kent Holland, Jr.

On a design-build project where an architect held the prime contract under DBIA forms 530 and 535, it was liable for overall site safety – including that which it had by subcontract expressly delegated to its construction subcontractor.   Because the language of the prime agreement imposed safety duties on the prime design-builder, the court held that those duties could not be avoided or delegated down to a subcontractor.   Ryan v. TCI Architects/Engineers/Contractors, Inc., 72 N.E. 3d 908 (Indiana 2017).

This case deals with a general contractor. The question was whether it assumed a non-delegable duty of care to keep a worksite safe when it executed the DBIA form contract. Looking at the language of the contract, the court held that the contract demonstrated the design-builder’s intend to assume a duty of care for everyone at the site.

An employee of a sub-subcontractor sustained a workplace injury. The injured individual filed suit against the design-builder to recover for its injuries. The trial court, on the basis that the subcontract agreement between the prime and sub stated that all site safety responsibility was delegated to the subcontractor, granted summary judgment for the design-builder.…

September 27, 2017

Crum & Forster prevails in claims-made policy period dispute

Source:, August 23, 2017
By: Judy Greenwald

A federal appeals court has upheld Crum & Forster Specialty Insurance Co. Inc.’s denial of an insurance claim for a claims-made policy by a construction firm because the claim was not submitted within the policy period, even though it was submitted during the policy’s subsequent renewal period.

Morristown, New Jersey-based Crum & Forster issued a professional errors and omissions liability claims-made policy to Anchorage-based Alaska Interstate Construction L.L.C. with an initial policy period of Dec. 1, 2011, to May 1, 2013, and then a renewal policy with a policy period of May 1, 2013, to May 1, 2014, according to Tuesday’s ruling by the 9th U.S. Circuit Court of Appeals in San Francisco in Alaska Interstate Construction L.L.C. v. Crum & Forster Specialty Insurance Co. Inc.

A claim against the policy was made by a wine producer on Jan. 10, 2013, during the initial policy period.  But Alaska Interstate did not report the claim until June 19, 2013, during the renewal policy period, according to the ruling.

After Crum & Forster denied coverage, Alaska Interstate filed suit in U.S. District Court in Anchorage, which granted the insurer summary judgment.

A three-judge appeals court panel unanimously upheld the lower court. Alaska Interstate argues “‘policy period’ can reasonably be interpreted as encompassing both the initial and renewal policy periods,” said the ruling.  “Under this interpretation, (Alaska Interstate) would have made and reported the claim within the single continuous policy period.”

But this proposed interpretation of “policy period” is not reasonable, said the ruling.  “According to the plain language of the policies, a claim must be made and reported within a single policy period, as stated in the Declarations for a given policy,” it said.

“An insured cannot reasonably expect coverage under such circumstances,” the ruling said, in upholding the lower court.…

September 15, 2017

Keeping Construction Risks Less Risky

Source:, August 14, 2017
By: John J. Sylvanus, Barley Snyder

Major construction is full of risk and reward. Owners, architects, engineers, contractors and subcontractors – all are bound to each other by a web of agreements, common schedules and desired outcomes. Everyone on a project is dependent on everyone else and subject to events beyond their control. Your ability to complete work timely and on budget depends on others.

Controlling risk requires recognition of events with risk potential and taking appropriate steps to limit its potential impact. Risk events will occur, and when they do, you need to be prepared to act promptly and appropriately. It is critical to remember that the process of determining the appropriate response to such an event requires looking at it not only from your viewpoint and determining how best to respond based on your potential costs and losses, but also considering how others may react and the risk of that reaction to you. When foreseeable but unanticipated problems occur, you can incur losses by having your schedule disrupted or pushed back, your work interfered with or problems caused for others. Although delays and additional costs you may incur are easy to determine, the biggest risks might be those that don’t affect you directly. Follow these rules to minimize risk factors:…

September 8, 2017

When building materials fail, who’s to blame?

Source:, August 15, 2017
By: Kim Slowey

This summer, the world looked on in disbelief as fire consumed the 24-story Grenfell Tower residential high-rise in London. The building burned for more than 24 hours before firefighters could extinguish it in full. Reports have confirmed approximately 80 fatalities so far, but that number could still grow as inspectors continue to survey the site and identify victims.

An investigation into the fire’s cause has centered on exterior cladding that was part of a renovation completed in May 2016, although the building’s lack of fire sprinklers has come under public scrutiny as well. Those panels, which contain the highly flammable polyethylene, are thought to have helped spread the flames after a refrigerator electrical fire on the fourth floor.

Polyethylene was also found in the pile of material that burned so hot under Interstate 85 in Atlanta in March that it collapsed a 350-foot section of highway. And it is because of that flammability that the panels’ manufacturer, Arconic, formerly part of Alcoa, says they are not meant for use in high-rise construction. Yet they were installed at Grenfell and other towers.

Finding one person or company to hold liable when a building material has been improperly or unscrupulously specified or installed is often impossible — and given the increasingly collaborative nature of construction projects today, perhaps not advisable. According to Judah Lifschitz, principal and co-president at Shapiro Lifschitz & Schram, in Washington, DC, it’s likely that any party involved in the product’s manufacture, sales, specification or installation would be at risk of being named in a lawsuit.…

September 6, 2017

Secret Bechtel Report Details ‘Significant’ Problems at V.C. Summer Nuclear Project

Source:, September 5, 2017

The doomed V.C. Summer nuclear project suffered from flawed construction plans, faulty designs, inadequate management of contractors, low worker morale and high turnover, according to a lengthy and long-secret report released Monday by S.C. Gov. Henry McMaster’s office.

The report, completed by the Bechtel Corp. about 18 months before the project was shut down in July, also notes strained relationships between the project’s contractors, as well as a lack of shared vision and accountability among the major companies involved.

Bechtel’s report, which senior partner SCE&G did not want released, might answer questions from lawmakers about what went wrong with the project. Many lawmakers want to know whether the fiasco could have been prevented.

Cayce -based SCE&G and state-owned Santee Cooper spent nine years and $9 billion on the Fairfield County project before pulling the plug July 31 . Ratepayers at both companies have been charged at least $2 billion for two nuclear reactors that won’t be completed. The utilities have said rising costs, construction delays and the bankruptcy of chief contractor Westinghouse led them to walk away.

Lawmakers fumed after reviewing the report.…