06/28/2019

Editor’s Notes

The role of the professional engineer during design and construction of a project is fraught with legal peril. Some have argued for years that engineers’ liability exposure is disproportionate to their role and compensation. Efforts have been made, through statutes and contract clauses, to limit that exposure. Two cases in this issue show those measures are not always effective.


A Texas statute requires any party filing suit against a professional engineer to also file a “certificate of merit.” The certificate, signed by a P.E., is intended to weed out frivolous claims. A court action not supported by a certificate is subject to dismissal with prejudice. The Texas Supreme Court was asked whether an engineer must seek dismissal early in the process. Or, is the engineer entitled to raise the procedural flaw at any time, even after extensive participation in the litigation process?


The other case addressed contractual protection of a design engineer serving as the project owner’s on-site representative during construction. Language in the construction contract disclaimed engineer liability to the contractor for negligent project administration. The contractor, seeking damages for delay and disruption, argued that the disclaimer violated public policy and was unenforceable.


The third case in this issue involved the husband and wife owners of an incorporated construction company. Each had signed as a personal indemnitor when applying for payment and performance bonds. After the company defaulted on the bonded contract, the owners resisted the surety’s attempt to be reimbursed from personal assets. The wife testified she never read the indemnification agreement, didn’t understand its implications, and signed at the instruction of her husband.

 

In addition to this issue's case studies, be sure to check out the article on Suspension of Work: Delays, Delay and Impact Damages.  This article summarizes the variables in determining the impacts of a suspension of work order based on a just-published paper by consultant Jim Zack.  The paper will be included in the next issue of the Construction Claims Advisor.

 

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