Differing Site Condition Claim Barred by Contract Disclaimers

by Kent Holland | Mar 29, 2013 | differing site conditions, Newsletter Article

Where a contract contained both a differing site condition clause as well as language stating that bidders may not rely upon data (such as soil information) provided by the owner with the invitation for bid (IFB) but should perform its own site investigation instead,...

Indemnification Clause in Prime Contract is not Incorporated by Reference into Subcontract Under New York Law in Absence of Express Agreement to Do So

by Kent Holland | Mar 5, 2013 | indemnification clause, Newsletter Article

Where an employee of an electrical sub-subcontractor was injured on the jobsite, he sued the project developer, the prime contractor, and others.  Those firms in turn filed a third-party claim against the sub-sub claiming the right to common law indemnity as well as...

Attorneys Fees Recovered to Enforce Indemnity Agreement

by Kent Holland | Dec 28, 2012 | indemnification clause, Newsletter Article

A “choice of law” provision in a contract provides for the law of a specified state to govern the contract and disputes between the parties that arise out of the contract.  Often the law of the state where the project is performed is selected as the governing law.  It...

The Unrelenting Tide of the Duty to Defend

by Kent Holland | Dec 28, 2012 | duty to defend, Newsletter Article

By Brian K. Stewart, Esq. and Kevin J. Engelien, Esq.– Collins Collins Muir & Stewart, LLP.  The immediate contractual duty to defend, once thought by some to be isolated to the “not so golden anymore” state of California as a result of two important court...

Agreement to Indemnify Project Owner for Penalties due to Violations of Americans with Disabilities Act Is Void and Unenforceable

by Kent Holland | Nov 27, 2012 | indemnification clause, Newsletter Article

Where design professionals agree by contract to indemnify a project owner for “any damages arising from any act, omission, or willful misconduct”, that provision cannot be enforced when the damages at issue arise out of violations of the Americans with Disabilities...

Economic Loss Doctrine Bars Suit against Design Firm Where there is No Privity of Contract Regardless of Whether Designer Might Have Deviated from Industry Standards

by Kent Holland | Oct 31, 2012 | Newsletter Article, standard of care

Suit was filed by an entity with an ownership interest in the project against two engineering firms that were subcontractors to one of the engineering firms that the general contractor (GC) contracted with to provide design services for a thermal energy system (an...