Claims – Contr Prof Liability

November 16, 2018

Design errors revealed in Miami bridge that collapsed

Source:, November 16, 2018

A federal US body investigating the fatal collapse of a bridge in Miami has concluded that there were design errors which could have caused concrete cracking observed before the bridge fell.

Engineers overestimated the load capacity of a critical section, its interim report said.

The report released yesterday by the National Transportation Safety Board (NTSB) avoided saying these errors caused the collapse.

Six people in cars died when the brand new pedestrian bridge over a busy road at Florida International University fell on 15 March.

In response to the update, bridge engineers FIGG issued a statement to The Miami Herald saying “the investigative update is just that, an update,” adding that the report “underscores that no probable cause conclusion should be drawn from the update.”

For the NTSB investigation, experts from the Federal Highway Administration evaluated the available design calculations and construction plans for the bridge, and found design errors.…

November 9, 2018

Transbay Terminal: Cause of cracked steel beams could take weeks longer to determine

Source:, November 9, 2018
By: Erin Baldassari

Testing of two cracked beams at the Salesforce Transit Center will extend into next week and the results could prompt further testing, officials said Thursday, pushing the estimated date for determining a cause of the failures to the end of the month or later.

Once a cause is determined, the Transbay Joint Powers Authority, the public agency in charge of construction and maintenance of the facility, along with a peer review panel, will determine a permanent fix to shore the cracked beams and reopen the center, said Dennis Turchon, the authority’s senior construction manager.

The $2.2 billion transit center opened on Aug. 12, only to abruptly close six weeks later after workers discovered large cracks in two steel beams that straddle Fremont Street. The beams, which are on the center’s third floor, support the rooftop garden and bus deck.

Officials also closed the section of Fremont Street below the building until crews constructed a temporary fix that allowed the street to reopen last month. Bus riders are using the temporary terminal that had been in place during the center’s construction.

There’s still no estimate on when the center will reopen, a date that will be determined after officials determine a plan for repairs.

Turchon said crews completed a series of onsite tests of the beams before removing samples for testing in a laboratory to determine the steel’s strength and hardness.

“A very important element that we’ll find out very soon is those core samples,” Turchon said. “That is a very important element to weigh into the matrix of solutions.”

But, the authority’s board of directors on Thursday also called for a more thorough review of the entire facility, also by a peer review panel.

“Given that we found (these cracks) just by chance, it begs the question of what other things are in the building that we should be looking at,” said Ed Reiskin, the San Francisco Municipal Transportation Agency’s director of transportation and a member of the authority’s board. “The emergence of the issue puts at stake the credibility of the entire project.”

The beams used American-made steel and were fabricated by a highly-regarded Stockton-based company, Herrick Corporation, which worked on the Transamerica Pyramid, 181 Fremont Street and the Salesforce Tower in San Francisco.

Skanska USA, a subcontractor of Webcor-Obayashi that was responsible for overseeing the procurement of steel at the transit center, filed a lawsuit in May against the authority, alleging the authority mismanaged the project and provided documents that were flawed or incomplete, causing delays and resulting in extra work for which Skanksa was not reimbursed.

The center’s general contractor, Webcor-Obayashi, also filed a lawsuit in October seeking $150 million in damages, alleging similar complaints. A spokesperson for the contractor said they anticipate the two suits are just the first of “an avalanche of lawsuits” to come due to the early mismanagement of the center.

The authority’s board of directors fired its former executive director, Maria Ayerdi-Kaplan, in 2016 over concerns about major cost overruns and repeated delays. San Francisco’s Department of Public Works then took over the project.…

November 7, 2018

Contractors face tough time covering construction delays

Source:, November 6, 2018
By: Gaven Souter

Delays in construction projects can cause huge increases in costs, but identifying insurance policies to cover the costs is complex and varies significantly depending on policy wordings, construction insurance experts say.

While traditional construction insurance coverages may apply or specific delay in startup insurance may be triggered, there’s rarely a straightforward solution to covering the construction delays, they say.

Most construction projects run late, and a significant proportion of projects run over budget, said Tony Rastall, divisional director, energy, at Ed Broking Group Ltd. in London.…

November 6, 2018

Johnson Street Bridge builder sues City of Victoria over design, costs

Source:, November 3, 2018
By: Bill Cleverly

The new Johnson Street Bridge is built and in use, but legal wrangling over its design and costs continue.

In a lawsuit filed in B.C. Supreme Court, PCL Constructors Westcoast Ltd., the company that built the bridge, maintains design information for the bridge “was not accurate and complete” and “contained errors, omissions and misrepresentations.”

The suit seeking unspecified damages names the city, bridge design consultant WSP Canada Group Ltd. (formerly known as MMM Group), and Hardesty & Hanover, a sub-consultant, as defendants. The statement of claim, filed in Supreme Court in Chilliwack, says the city failed to provide design information in a timely manner, unreasonably changed the design (including specifications), and failed to pay PCL’s costs arising from changes.…

October 31, 2018

The cost of allocating design risk to contractors

Source:, October 30, 2018
By: Doug Tabeling of Smith, Currie & Hancock LLP on behalf of Consesus Docs

Design flaws are a constant risk in construction, but the contractual allocation of that risk can sway considerably from project to project. Contract terms can vary from fully expressing an owner’s warranty of the sufficiency of plans and specifications to transferring significant design risk to the contractor. On a traditional design-bid-build project, the default allocation of the risk of design errors is governed by the Spearin doctrine. That principle is derived from a Supreme Court decision holding that the owner bears the risk associated with inadequacies in the design it provides and on which the construction contract is based. But it is only a default principle. The Spearin doctrine is a gap filler, an implied term in a construction contract that can be undermined and limited by express terms to which the owner and contractor agree.

There are several reasons why construction contracts vary in their allocation of the risk of design failures. Some owners prefer to achieve the cost savings associated with limiting the contractor’s risk concerning the design and curtailing the amount of contingency in the contractor’s price. Other owners, however, prefer not to assume the residual risk that is not assumed by the designer under its standard of care.…

October 15, 2018

Ohio Supreme Court: Contractor Not Covered for Subcontractor’s Faulty Work Due to Lack of Occurrence

Source:, October 13, 2018
By: Teri Mae Rutledge & Samuel Stalker, Cozen O’Connor

In a decision that the court itself characterized as bucking a modern trend, the Ohio Supreme Court found no coverage for a general contractor under a standard commercial general liability policy’s “occurrence” requirement for property damage caused by its subcontractor’s faulty work. Ohio Northern University v. Charles Construction Services, Inc., 2018 Ohio LEXIS 2375 (Ohio, Oct. 9, 2018) expanded the scope of the court’s prior holding in Westfield Insurance Co. v. Custom Agricultural Systems, Inc., 133 Ohio St. 3d 476 (2012), in which it held that property damage caused by an insured contractor’s own faulty workmanship did not involve an occurrence such that its CGL policy would provide coverage for the loss.

Factual and Procedural Background

Ohio Northern University (ONU) contracted with Charles Construction Services, Inc. (Charles Construction) to build The University Inn and Conference Center. Cincinnati Insurance Company (CIC) issued a standard CGL policy to Charles Construction that contained a products-completed operations-hazard (PCOH) clause and an exception to the “Damage to Your Work” exclusion related to subcontractors.…

October 8, 2018

Teaching An Old Dog New Tricks: The Spearin Doctrine and Design-Build Projects

Source:, October 5, 2018
By: John Castro, Gordon Rees Scully Mansukhani

The United States District Court for the Southern District of California has now held that the Spearindoctrine applies to design-build subcontractors where the subcontractor is expected to design a portion of their work. The case is United States for the use and benefit of Bonita Pipeline, Inc., et al. v. Balfour Beatty Construction, LLC, et al. (“Bonita Pipeline”) (Case No. 3:16-cv-00983-H-AGS).

In Bonita Pipeline, a subcontractor sued the general contractor and its sureties alleging breach of contract, breach of implied warranty, declaratory relief, and recovery under the Miller Act. The subcontractor then filed a motion for partial summary judgment against the general contractor on its declaratory relief cause of action, seeking a finding that the general contractor could not shift legal responsibility for its defective plans and specifications to the subcontractor.

The evidence presented in support and opposition of the motion showed that the general contractor provided incomplete design documents to the subcontractor at the bid stage, and expressly stated they were incomplete. The subcontractor was ultimately awarded the bid, which included design-build structural steel, metal decking, and other amenities. The parties admitted that the plans and specifications could be refined with further design, whereby the subcontract contained language stating that the subcontractor would assume risk of further change (“refinement”) of the plans and specifications. Further, the subcontract stated that the subcontractor was not entitled to additive change orders or an increase in its bid price for “refinements” resulting from the design-build process. Instead, the subcontractor would only be entitled to additional compensation for enhancements requested by the owner.…

October 8, 2018

College of Marin sues in messy dispute with fine arts building architect

Source:, October 5, 2018
By: Richard Halstead

The Marin Community College District has found itself enmeshed in a sort of Chinese box of lawsuits, as it sues the law firm it hired to sue the architectural firm it commissioned to help modernize the College of Marin campus.

The district last month filed suit against Dannis Woliver Kelley, the San Francisco law firm that it hired to sue Marcy Wong & Donn Logan Architects (MWDL). The Berkeley-based architects were brought on in 2007 to assist with construction of its Fine Arts Building and modernization of its Performing Arts Complex.

Events began to unfold in March 2014, when the district filed a complaint for breach of contract and professional negligence in Marin Superior Court against Marcy Wong & Donn Logan Architects.

It was the first of two suits it would eventually file against the architectural group alleging a total of about $3 million in damages. MWDL did not respond to requests for comment.

In April 2007, the district entered into a contract with MWDL for architectural design services to be provided for various construction projects at the campus. The projects were funded by Measure C, a $249.5 million bond measure approved by voters in 2004.…

October 5, 2018

Developers of subdivision suing engineering firm for delays

Source:, October 4, 2018
By: January Rutherford

The developer of Burkart Crossing Apartments in Seymour is suing an engineering firm for “poor” design and implementation of plans for a 104-lot subdivision on the city’s northeast side.

Construction of homes has yet to begin in Redbud Meadows subdivision, located on about 60 acres of property north and northeast of the apartments.

The major hangups are due to ongoing stormwater drainage issues and roads that were not built wide enough to meet city code.

Attorneys for Bushmann LLC of Columbus have filed a complaint in Jackson Superior Court I for breach of contract against LandWater Group Inc., also of Columbus.

The complaint states Bushmann entered into an oral agreement in 2013 with LandWater Group to prepare zoning documents and development plans for the subdivision.

Those plans were to be designed to meet city code so the city would accept the subdivision into its inventory.…

August 10, 2018

Contractor fights faulty Portsmouth housing construction claims

Source:, August 3, 2018
By: Elizabeth Dinan

A contractor accused in a federal lawsuit of faulty construction at the 100-unit Wamesit Place housing complex filed a court motion denying liability, while reporting if it is found liable, so too should five other contractors who worked there.

The lawsuit was filed by Portsmouth attorney John Bosen, on behalf of the Wamesit Place Family Housing Limited Partnership, and claims poor construction caused mold to grow in apartments, that firewalls “are inadequate and/or nonexistent throughout the apartments” and remediation will require a “massive” amount of work and the temporary relocation of some residents.

One of the defendants, Portland Builders, filed a July 30 notice with the U.S. District Court of New Hampshire stating it was contract manager in 2011 and 2012 for renovations that included roofs, windows, doors and siding at homes throughout the neighborhood. The contractor reiterates Wamesit’s claim that defects were discovered, beginning in 2015, that led to mold and the discovery of code violations.

Portland Builders, in its new court filing, states it performed its work according to the scope of its agreement with Wamesit, but if a jury finds it liable for damages, it will ask a jury to share responsibility with Goduti-Thomas Architects, Veteran’s Construction, Eastern Mechanical, Corey Electric, Bio Environments and an unknown cable company.

The contractor alleges the Portland, Maine, architect designed the plans and specifications it followed and the construction company was contracted to “perform services related to the firewalls.” The mechanical company performed plumbing and ventilation work at Wamesit, the electric company installed bathroom ventilation fans and the environmental company conducted mold testing and remediation. The unknown cable (or security) company did work at the housing complex after Portland Builders was done, which “damaged firewalls,” the contractor’s court motion claims.

Based on those allegations, Portland Builders reports to the court that it “is entitled to have the jury apportion liability during the trial of this matter.”

Wamesit’s amended suit filed in April reports that between 2015 and 2017, mold was found in apartments, “that is growing due to the condensation of humid exhaust air accumulating and saturating insulation in ceilings and attics.” Mold remediation was conducted by third parties and before insulation could be replaced, it would have to remove all insulation, including in building overhangs, and clean all surfaces in ceilings and attics. All ceiling drywall will also have to be replaced and proper re-insulation will be needed, in addition to new bathroom fans and duct work to roof vents, it’s alleged.

Tenants in the apartments will need to be temporarily relocated during the repairs and Wamesit seeks an unspecified monetary award to cover related costs. Wamesit is alleging breach of contract and negligence in the federal suit.

Portland Builders previously countered that change orders eliminated attic insulation, ventilation “and other work that was part of the original contract.”

The Portsmouth Housing Authority manages the Wamesit Place apartments on Greenleaf Avenue and its director, Craig Welch, previously told the Portsmouth Herald he can’t discuss the pending litigation and he assured no residents’ health is at risk.…