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TRANSACT IONS J.L. PATTERSON SELLS TO JACOBS ENGINEERING D.A. Davidson announced that it served as exclusive financial advisor to J.L. Patterson & Associates Inc. , a design, engineering, construction management, and environmental services provider for the rail industry, on its sale to Jacobs Engineering Group, Inc. Financial terms of the transaction were not disclosed. “JLP is clearly a leader in the rail engineering space, an attractive and growing market within the E&C sector,” said Monte Giese, co-head of investment banking and head of Davidson’s E&C group. “We believe Jacobs is the highest quality partner for the next phase of JLP’s growth.”

BUSINESS NEWS JACOBS AWARDED CONSTRUCTION MANAGEMENT SERVICES RE-COMPETE Jacobs Engineering Group Inc. (Pasadena, CA) announced it was awarded a construction management services re-compete contract in support of the Cobb County Water System’s 2015-2020 Capital Improvement Program in Georgia. Jacobs is providing professional, technical and administrative services, as well as other skilled personnel to perform activities associated with water, wastewater and storm water facilities construction; and utility locate services. In making the announcement, Jacobs Senior Vice President and General Manager Buildings & Infrastructure, Americas, Randy Pierce said: “We’re very pleased by the opportunity to continue our relationship with the Water System and keep its projects moving forward successfully.” STERLING CONSTRUCTION AGAIN SELECTED AS SUBCONTRACTOR FOR BALFOUR BEATTY/GRAHAM CONTRACTING JV Sterling Construction Company

Inc. (The Woodlands, TX) announced that its subsidiary, Ralph L. Wadsworth Construction Company LLC was selected by Denver’s Regional Rail Partners as a major subcontractor for a joint- venture between Balfour Beatty and Graham Contracting on two regional transport district projects. These projects, which entail construction on multiple segments of the North Metro Rail Skyway Bridge, are the second and third jobs awarded to RLW by RRP during 2015. The first project calls for RLW to construct four bridges as well as six miles of track grade between the Skyway and 112 Street. Along with the bridges, RLW will build the associated drainage, mechanically stabilized earth walls, cast- in-place walls and a pedestrian tunnel. The project also includes platform walls for two stations and the retrofit of electric panels and arc flash protection for two bridges. Construction began in October 2015 and is expected to be completed by August of 2016.

ROB HUGH, from page 9

the claimant to engage in discovery; imposing significant litigation and expert costs on the design defendant(s). Unfortunately, neither case has an easy risk-management “fix.” Contractual solutions might not be effective as design firms are unlikely to have a contract with the project’s general contractor or its subs. The court’s rationale was that because the building protruded slightly at the site of the accident, pedestrians were left exposed to the potential threat of a car jumping the curb. Thus, the owner provided inadequate protections and was obliged to take additional precautions. Design firms operating in Pennsylvania might want to check with their legal counsel on the feasibility of requiring the owner to include a waiver of direct claims against the design team in their prime agreement with the contractor. This might help limit your direct exposure. Alternatively, you could seek indemnification from the client/owner for any third party claims based on a standard of care beyond that imposed by the applicable building code. Nonetheless, such agreements may not be legally enforceable and may not help if the client doesn’t have the financial resources to take over your defense or reimburse you for any liabilities. Ultimately, being aware of these cases might be a design firm’s best risk management tool: Understand their potential impact on your firm and take a prudent approach to your work. Rob Hughes is the senior vice president and partner at Ames & Gough . Contact him at rhughes@amesgough.com

court agreed, having dismissed the case at an earlier stage – and prior to discovery. This allowed Kimball to avoid the significant efforts and costs of engaging in depositions and other discovery. However, the Superior Court rejected Kimball’s argument that Gongloff must identify a particular communication or document provided by Kimball as being false. The court opined that the “design itself” is: “A representation by the architect that the plans and specifications, if followed, will result in a successful project. If, however, construction in accordance with the design is either impossible or increases the contractor’s costs beyond those anticipated because of defects or false information included in the design, the specter of liability is raised against the design professional.” The actual “misrepresentation” was simply Kimball’s roof design. As to specificity, Bilt-Rite “requires only that information, a rather general term, be negligently supplied by the design professional.” Gongloff satisfied this requirement by alleging that the design was supplied “in order to provide guidance” to others as to how to build the project. And, as to “false” information, Gongloff need only allege that the feasibility of construction, per the drawings, was “called into question.” These “hurdles” to filing and maintaining a direct claim are of little obstacle; all project designs are offered as guidance and general contractors and their subs often question design and constructability/feasibility – indeed, do we know of any project without design-related requests for information? Thus, not only does the opinion support the right to direct claims; as a practical matter, it appears there is little hope for an early dismissal of the design professional under the forgoing standard. At the very least, a trial court will allow

THE ZWEIG LETTER JANUARY 11, 2016, ISSUE 1134

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