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Volume: 17, Issue: 20 - 10/31/2019

 

There are individuals who consider themselves “designers.” When they represent themselves to the public in this manner, it raises a number of questions. Are they implying they are licensed design professionals? If not, what is their role? What is the lawful scope of services they can provide?

 

An individual in Minnesota had never been a licensed architect, yet she used that term when offering services to the public. When cited for violating the state licensing statute, she replied that she had never used the term “architect” as a stand-alone title. She had described herself as a “design architect” or a “residential architect.” Read more.


 

An unlicensed individual’s use of terms such as “design architect” and “residential architect” conveyed the impression the individual was a licensed architect, thereby violating the state licensing statute. The Board of Architecture did not violate the individual’s First Amendment rights by confiscating the common term “architect.” The First Amendment does not protect untruthful misrepresentations.


 

A broad incorporation by reference of prime contract terms into a subcontract was limited to prime contract terms relating to the scope, quality, character and manner of the work to be performed by the subcontractor. And, a prime contract requirement for project owner approval of subcontractors did not apply to subcontractor use of lower-tier subcontractors.


Volume: 17, Issue: 19 - 10/15/2019

 

When a contractor claim reaches the litigious stage, project owners frequently argue that the claim has been settled, waived, and/or released. But the owner’s history of dealing with the claim may undercut that argument. The ruling on this focused on modification release language, as well as ongoing negotiations.  

 

Two other cases in this issue deal with a subcontractor's actions invalidating a lien filing and the veracity of claimed costs on a cost-plus contract. Read more


 

The government’s continued negotiation of a claim with a contractor, internal consideration of the claim, and preparation of a draft contract modification compensating the contractor were inconsistent with the government’s subsequent position that the claim had already been settled and released.


 

A subcontractor’s mechanic’s lien filing was premature because the sub returned to the jobsite to repair items that were within the sub’s scope of work. The subcontractor had not “ceased” work within the meaning of the lien statute. The sub could have re-filed after performing the repairs but did not do so.


 

On a cost-plus contract, contract costs could not include subcontracted work outside the scope of the prime contractor’s agreement; nor could the contract costs include the unproved cost of the use of contractor-owned equipment.


Volume: 17, Issue: 18 - 09/30/2019

 

Control over the activities of another party generally creates a corresponding duty to use due care in the exercise of that authority. This includes the duty to avoid unnecessary economic harm. Contractual disclaimers may not effectively negate this responsibility. 

 

A project architect had authority to advise the owner regarding the rejection of nonconforming work, withholding of contractor payment, and termination of the construction contract for default. A Florida court ruled that this was sufficient supervisory control over the contractor to allow the contractor to sue the architect for professional negligence after a default termination. Read more.


 

A project architect had substantial supervisory control over the work of a contractor. This created a duty of due care running to the contractor. The architect did not have authority to terminate the construction contract for default but had authority to advise the project owner on that matter, and therefore had to exercise due care in making the recommendation. The contractor’s suit against the architect was for professional negligence, so it did not matter that the contractor was not a third-party beneficiary of the owner-architect contract.


 

A state mechanic’s lien statute covered the contract price less payments received under the contract. The profit on salvaged steel was not part of the contract price on a site restoration project. Lost profit was consequential damage. When the project owner breached the contract, the contractor could lien the property only for the contract balance due, not consequential damages.


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