Limitation of Liability Clause Enforced in Favor of Architect by Georgia Court

by Kent Holland | Jan 30, 2011 | limitation of liability clause, Newsletter Article

A $50,000 Limitation of Liability clause in a contract was enforced by the Georgia Court of Appeals in a case where a developer sued an architect for breach of contract and negligence when a retaining wall designed by the architect failed.   The architect’s motion for...

Contractor Entitled to Recover Additional Compensation Due to Project Owner’s Failure to Disclose Material Information During Bidding Process – even Where Nondisclosure was not Done with Affirmative Intent to Conceal the Information

by Kent Holland | Jan 11, 2011 | differing site conditions, Newsletter Article

Contractor is entitled to recover additional compensation due to a school district’s failure to disclose material information during the bidding process, and it is not necessary for the contractor to prove affirmative fraudulent intent to conceal the information. ...

Expert Witness Adequately Testified to Consensus Opinion on Applicable Standard of Care

by Kent Holland | Dec 31, 2010 | Newsletter Article, standard of care

A plaintiff’s expert witness was challenged by the defendant on the basis that the expert’s testimony failed to adequately demonstrate that there was a consensus within the architectural community for the standard of care that he asserted applied in the case. The...

Expert Testimony is Required to Prove Construction Management Failed to Meet the Standard of Care

by Kent Holland | Dec 31, 2010 | Newsletter Article, standard of care

A Court of Appeals in Texas ruled that expert testimony is required to establish the standard of care of a construction management firm since a lay person would not have sufficient knowledge of the duties of a construction management firm. Judgment was entered for the...

The Duty to Defend as part of Indemnity Agreement is Alive and Well in California: Don’t be fooled by Favorable Commentary on California SB 972

by Kent Holland | Dec 31, 2010 | duty to defend, Newsletter Article

With the signing into law of California Senate Bill SB 972, California amended Section 2782.8 of its Civil Code, thereby limiting the enforcement of indemnification clauses upon design professionals working for public agencies. Much positive hype and commentary has...

Agreeing to Pay Reasonable Attorneys Fees as Part of Indemnification May Create Uninsurable Loss

by Kent Holland | Dec 31, 2010 | indemnification clause, Newsletter Article

A question that is asked with increasing frequency is whether attorneys fees incurred pursuant to an indemnity clause are insurable where they are not incurred due to a duty to defend (i.e., paid on behalf of the indemnitee) but are instead paid after the litigation...