Design Professional's Guide to Construction Law

Name: Design Professional's Guide to Construction Law
Brand: American Bar Association
Price: 157.99 EUR
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Matthew James Ninneman Buck Beltzer(Editor)

American Bar Association (Publisher)

Published on 1. February 2022

456 pages

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978-1-64105-815-5 (ISBN)

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Content

Intro
Title Page
Copyright Page
Contents
Introduction
About the Authors and Editors
CHAPTER 1 : State Regulation of the Design Professional, Patricia A. Harris, Jaimee L. Nardiello
I. Introduction
II. Individual Licensure
III. Firm Licensure
A. Overview
B. Noncompliance Has Its Price
IV. Firm Practice
A. Who Is to Seal?
B. What Is to Be Sealed and When?
C. How Are Documents to Be Sealed?
D. Other Requirements Imposed by Some States
V. Conclusion
VI. Practice Aids
A. Checklist for Practice in a New Jurisdiction
B. NCARB Certificates and NCEES Records
CHAPTER 2 : Ethics and Rules of Conduct Governing Design Professionals, Mohammad Iqbal
I. Introduction
A. Ethical Issues in the Design Process
B. Rules of Professional Conduct
II. Code of Ethics
A. Basic Concepts and Fundamental Principles
B. Historical Development
C. Discussion of Professional Codes of Ethics
III. AIA Ethical Standards and Rules of Professional Conduct
A. Overview
B. Enforcement
IV. ASCE Code of Ethics and Rules of Professional Conduct
V. NSPE Code of Ethics
A. Overview
B. Indemnification, Limitation of Liability, and Ethics
VI. Law, Ethics, and Professional Conduct
VII. Ethical Dilemma
VIII. Licensing Boards Governing Design Professionals
A. Licensure Laws
B. Licensing Board Powers
C. Enforcement Powers
D. Investigative and Disciplinary Powers
E. Revocation and Suspension of Licenses
F. Disciplinary Reciprocity
G. Judicial Review
H. Standard of Review
IX. Hyatt Regency Sky Walkway Collapse
X. Conclusion
XI. Appendices
A. Professional Organizations
CHAPTER 3 : Design Professional Contract Responsibilities- Pre-Design, Design, and Pre-Construction Phases, Theodore D. Levin, Mehrdad Farivar
I. Introduction
II. Conceptual/Pre-Design Phase: Contractual and Extra-Contractual Roles of the Design Professional
A. The Process and the Product Unique Aspects of the Design and Construction Process
1. The Design Professional as Advisor: Assumption of Fiduciary Duties
2. Understanding the Owner's Initial Concept
a. Project Use
b. Size of the Project
3. Initial Formation of the Project Team
a. Design Consultants
b. Project Consultants
4. Issues and Obligations in Dealing with Governmental Agencies/Approvals
a. Entitlements
b. Building Permits and Approvals/Inspections
c. Private Restrictions
5. Implied Obligations of the Design Professional in the Conceptual/Pre-Design Phase: Dealing with Governmental Agencies and Approvals and Private Restrictions on the Improvement and Use of Real Property
B. Potential Liabilities of the Design Professional in the Pre-Design Phase
1. Liability Arising from Initial Proposals
2. Setting the Project Parameters
a. Generally
b. The Initial Program
3. Initial Budget Estimates
4. Initial Schedule Estimates
III. Contract Negotiation and Formation
A. The Roles, Responsibilities, and Obligations of the Parties in Entering into the Contract
B. The Contract
1. Standard Form Contracts-the Test of Time?
2. The Use of Custom Contracts
3. Specific Contract Provisions-the Risks Defined
4. Indemnity
5. Basic vs. Additional Services
6. Payments to the Design Professional
7. Termination Issues
8. Budget Estimates
9. Schedule Estimates
10. Copyright Issues
11. Dispute Resolution
12. Insurance
13. Consequential Damages-Waiver and Related Issues
14. Limitations of Liability
15. Modifications and Changes to the Contract: Changes in Services
IV. The Design Services Phase: Roles and Responsibilities
A. Contractual Roles and Liabilities
1. Schematic Design
2. Design Development
3. Construction Documents
B. Implied Obligations of the Design Professional during the Design Services Phases
CHAPTER 4 : Design Professional Legal Responsibilities-Construction and Completion Phases, Paul T. Muniz
I. Introduction
II. Construction Phase: Roles and Responsibilities
A. Roles and Responsibilities of Project Participants in Design-Bid-Build
1. Traditional Roles and Responsibilities
2. Relationship of Roles and Responsibilities to Risk Allocation
3. Variations on Traditional Roles and Responsibilities in Design-Bid-Build
B. Roles and Responsibilities of the Design Professional during the Construction Phase
1. Roles and Responsibilities Defined by Contract and Conduct
2. Modification of Roles and Responsibilities during the Construction Phase
3. Standard Contract Terms Regarding Design Professional Roles and Responsibilities during the Construction Phase
a. Site Visits
b. Submittal Review
c. Construction Means/Methods
d. Safety
e. Quality Assurance
f. Rejection of Work
g. Contractor Claims, Payment Issues, and Interpretation of the Contract Documents
h. Termination of the Contractor
4. Commonly Recognized Implied Obligations of the Design Professional in the Performance of Construction Phase Services
5. Areas of Potential Professional Liability Exposure
a. Owner Claims
b. Third Party Claims
c. Contractor/Subcontractor Claims
d. Personal Injury Claims
e. OSHA
f. False Claims Act
III. Completion and Commissioning Phase: Roles and Responsibilities
A. Substantial Completion
B. Punchlists
C. Final Completion
D. Warranties
E. Project Close-Out Documentation
F. Support to Owner in Evaluation/Defense of Contractor Claims
CHAPTER 5 : Design Professionals and the Design-Build Project, Bernard (B.J.) Nodzon, Anna Covert, Kevin Major
I. Introduction
II. Differing Roles for Design Professionals in Design-Build Projects
A. Design-Build Led by the Design Professional
B. Design Professional as a Subcontractor to Design-Builder
C. Design Professional as a Member of a Joint enture or Other Business Entity
D. Bridging
III. General Considerations
A. Fast-Track Construction
B. Less Complete Design
IV. Design-Build Led by Design Professional
A. Reduction of Claims by Practice
B. Warranty of Design
C. Strict Liability for the Design-Builder
D. Contractor-Type Liability
E. Insurance Coverage and Bonding
F. Increased ADA Liability
G. Economic Loss Doctrine Eroded
H. Contractor Licensing
V. Contractor-Led Design-Builder
A. Different Dynamics
B. Poison Clauses
1. Pay-If-Paid or Pay-When-Paid Clauses in Design-Build Contracts
2. Warranty Clauses
3. Indemnification Clauses
4. Flow-Down Clauses
C. Licensing Issues Illegality of Design-Builder Not Having a Design Professional License
D. Bond Claim Limitations
VI. Member of a Joint Venture or Other Business Entity
A. Choosing a Business Form
1. Joint Ventures
2. Limited Liability Companies
3. Partnerships
4. Limited Liability Partnerships
5. Corporations
B. Insurance and Bonding
C. Non-Compete and Exclusivity
D. Teaming Agreements
VII. Bridging
CHAPTER 6 : The Design Professional and Tort Liability, Terence J. Scanlan, Lindsey M. Pflugrath, Troy Hatfield, Nicole R. Springstroh
I. Claims against Design Professionals
A. Negligence
1. Standard of Care for Design Professionals
2. Scope of Design Professional's Duty
3. Necessity of Expert Witness Testimony
4. Causation
B. Strict Liability
C. Gross Negligence
1. Definition
2. Effect on Contractual Limitations of Liability
D. Breach of Fiduciary Duty
E. Fraud Elements
F. Negligent Misrepresentation
II. Issues Affecting the Tort Liability of Design Professionals
A. Assumption of a Higher Degree of Care
B. Warranty Disclaimers
C. Contract Modifications
1. Use of a Master Agreement
2. Amendments and Modifications
3. Scope Creep
D. Preparation of Plans and Specifications
E. Environmental Liability
III. Who Can Sue Design Professionals: Economic Loss Rule
A. Application to Parties in Privity of Contract
B. Application to Third Parties Not in Privity
1. Two Tests
a. Damages-Driven Test
b. Foreseeable Duty Test
C. Claims against Individual Design Professionals
D. Exceptions to Application/Enforcement of the Doctrine
1. Negligent Misrepresentation
2. Sudden/Calamitous Event
E. The Independent Duty Doctrine
IV. Site Safety
A. Background
B. Responsibility of the Contractor and Owner
C. Indemnity for the Design Professional
D. Theories of Liability against the Design Professional
E. The Design Professional's Role on Site
F. Design Professional Immunity Statutes
G. Control over the Work and OSHA Fines
H. Contract Provisions
I. Duty to Keep Own Employees Safe
J. Hazardous Waste Sites
K. The Safety Dilemma
CHAPTER 7 : Design Professional Work Product Ownership and Protection, J. Benjamin Patrick
I. Introduction
II. What Types of Works Are Subject to Copyright Protection?
A. Generally
B. Copyrights Distinguished from Patents
III. Who Owns the Copyright?
A. The Default Rule: Plans Are Owned by the Designer
1. The Work Made for Hire Doctrine
2. Co-Authorship
B. Ownership of the Copyright in the Building Itself
C. Conveying Copyright Interests
1. Ownership by the Designer with a Nonexclusive License for the Owner
2. A Reverse License
3. Ownership of the Work by the Owner
4. Conveying Copyright Interests at a Later Date
a. Licenses
b. Transfer of Ownership
c. Transfer of Copyrights
D. Common-Law Copyrights and Registered Copyrights
1. Copyright Notice
2. Formal Registration
IV. What Protection Does the Copyright Afford?
A. A Brief History of Copyright Protection for Architectural Plans
B. The Useful Article Exception
C. The Architectural Works Copyright Protection Act
D. Rights Protected by Copyright
1. The Right to Reproduce the Plans Themselves
2. The Right to Prepare Derivative Works Based on the Plans
E. Scope of Protection for Derivative Works
F. Scope of Protection for Works Consisting of Generic Features
G. The Idea/Expression Dichotomy
V. What Is Copyright Infringement?
A. Ownership of a Valid Copyright
B. Access to the Copyrighted Work by the Alleged Infringer
C. Substantial Similarity between the Copyrighted Work and the Allegedly Infringing Work
1. The Extrinsic/Intrinsic Test
a. Extrinsic Analysis Stage
b. Intrinsic Analysis Stage
2. The Intended Audience Test
a. Protectable Elements Stage
b. Substantial Similarity Stage
3. The Ordinary Observer Test
D. Defenses
1. Independent Creation
2. Fair Use
3. Statute of Limitations
E. Damages
1. Plaintiff's Actual Damages
2. Defendant's Profits Resulting from the Infringement
3. Statutory Damages
4. Injunctive Relief
5. Attorneys' Fees and Costs
6. What Information Is Protected by Trade Secret Laws?
VI. Conclusion
CHAPTER 8 : Design Professional Risks: Indemnification and Professional Liability Insurance, Karen Erger
I. Introduction
II. Managing the Risks of Contractual Indemnification
A. Classification of Indemnification Clauses
1. Broad Form (Type I) Indemnification
2. Intermediate Form (Type II) Indemnification
3. Comparative (Limited) Form (Type III)
B. Restrictions on Indemnification
C. Negotiating Insurable Indemnity Clauses
III. Professional Liability Practice Policies
A. No Standard Form
B. What Is Covered
C. Who Is Covered
1. Right and Duty to Defend
2. Who Is an Insured
a. Coverage Position of Former Employees
b. Client Cannot Be an Additional Insured
D. Fundamental Exclusions
1. Liability Assumed by Contract
2. Express Warranties and Guarantees
3. Insured vs. Insured
E. Claims-Made and Reported Coverage Trigger
1. Perils of Late Reporting
2. Benefits of Circumstance Reporting
3. Extended Reporting Periods and "Tail" Coverage
F. Defense Inside the Limits
1. Project-Specific and Client-Specific Policy Endorsements
IV. Project-Specific Professional Liability Insurance
V. OPPI and CPPI
VI. Commercial General Liability Coverage
A. CGL Coverage
1. Bodily Injury and Property Damage
2. Personal and Advertising Injury
3. Medical Payments
B. Additional Insured Status on the CGL Policy
VII. Evidence of Insurance
A. Binders
B. Certificates of Insurance
IX. Further Resources
CHAPTER 9 : Considerations for Subconsultant and Subcontract Agreements for Design Professionals and Construction Managers, L. Tyrone Holt, Carrie Lynn H. Okizaki
I. Introduction
II. The Process of Choosing a Subcontractor
III. Unique Legal Issues Applicable to the Prime Contractor/Subcontractor Relationship
A. Vicarious Liability, Indemnification, and Contribution
B. Exculpatory, Risk Allocation, and Limitation of Liability Clauses
C. Payment Clauses
D. Insurance Issues
E. Dispute Resolution
F. Flow-Down Clauses
G. Applicability of Economic Loss Rule
IV. Drafting Subcontract Agreements
A. Rule No. 1: Get It in Writing, and Get It Signed!
B. Rule No. 2: Develop a "Form" Contract for All Subcontracts on the Project
1. Form or Custom Subcontract Agreements
2. Customizing the Standard or Template-Based Subcontract Agreement
C. Rule No. 3: Identify Key Subcontract Terms and Conditions
V. Subcontract Negotiations
VI. Subcontract Issues Unique to International Subcontracting Relationships
VII. Conclusion
VIII. Practice Aids
A. Standard Construction Manager and Subcontractor Contract Forms Available
CHAPTER 10 : Damages and Remedies, Stephen R. Miller, Stephen A. Hess
I. Introduction
II. Causes of Action
A. Breach of Contract and Related Claims
1. Breach of Contract
2. Promissory Estoppel
3. Unjust Enrichment
B. Tort Claims
III. General Measures of Damages
A. Breach of Contract and Related Claims
1. Breach of Contract
a. Design Professional and Construction Manager Compensation
b. Owner's Compensation
c. Contractor's Compensation
2. Promissory Estoppel
3. Unjust Enrichment
B. Tort Claims
IV. Calculation and Proof of Compensatory Damages
A. General Damages
B. Direct Costs
1. In General
2. Price Increases for Labor and Material
3. Idle Equipment and Related Costs
4. Home Office Overhead
5. Lost Profits
6. Delay/Disruption Damages
7. Loss of Efficiency/Productivity
8. Liquidated Damages
9. Interest
10. Attorneys' Fees
C. Alternative Methods for Calculating Damages
1. Total Cost
2. Modified Total Cost
3. Measured Mile
4. Should-Cost Estimates
5. Industry Standards and Studies
6. Time-and-Motion Studies
7. Jury Verdict Method
D. Consequential Damages
E. Punitive Damages
V. Defenses to and Mitigation of Damage Claims
A. Economic Waste
B. Failure to Mitigate Damages
C. Betterment
VI. Protection for Performance and Payment Rights
A. In General
B. Retention and Limitations Thereon
C. Labor and Material Payment Bonds
D. Performance Bonds
E. Mechanics' Liens
F. Miller Act
G. State Public Works Claims (Little Miller Acts)
H. Prompt Payment Statutes
VII. Contractual and Other Limitations on Liability
A. Exculpatory Clauses
B. Waivers of Consequential/Incidental Damages
C. Indemnification Clauses
D. Disclaimer of Warranties
E. Waiver of Lien Rights
F. Limitations of Liability
G. No Damages for Delay
H. Pay-if-Paid/Pay-When-Paid Clauses
I. Immunity under Workers' Compensation Laws
J. Immunity from Site Safety Claims
K. One-Call Statutes and Damage to Underground Structures
CHAPTER 11 : Special Topics in Litigation of Disputes Involving Design Professionals or Construction Managers, Ernest Isola, Jessica Clouse
I. Introduction
II. Time Limits for Filing Suit
A. Statutes of Limitation and Related Laws
B. Statutes of Repose
C. Using Tolling or Standstill Agreements to Defer Litigation
III. Certificates of Merit
A. Who Is Covered?
B. What Are the Requirements?
IV. Management of Litigation through the Use of Special Masters
V. Use of Experts
A. The Trial Judge Has a Gatekeeping Obligation Pursuant to Daubert, Joiner, and Kumho Tire
B. Daubert/Kumho Tire Extend to Both an Expert's Testimony and the Conclusions Reached by the Expert
C. Daubert/Kumho Tire Applies in Construction or Closely Related Cases: It Must Be Reasonable for an Expert to Rely on That Which Forms the Basis of His or Her Opinion
VI. Discovery, Management, and Use of Evidence in Complex Construction Cases
A. Document Management and Use of Databases
B. Electronic Discovery
C. Demonstrative Evidence
VII. Using Joint Defense Agreements to Avoid Finger-Pointing and Manage the Dispute
A. Practical Considerations for a Joint Defense
B. The Necessity of a Writing

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Design Professional's Guide to Construction Law

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