OTHER PARTIES: CASE SCENARIOS
NON-CONSTRUCTION WORKER INJURY Although claims by “others” are a relatively smaller percentage of claims against design professionals, these claimants need to be considered on projects such as parks, swimming pools, libraries, and court houses where the end user is the general public. A 14-year old boy was paralyzed after sledding into a handrail designed by a landscape architect for a public park. There did not appear to be any liability on the part of the landscape architect, whose design included protective shrubbery. It was determined that either the boy was sledding down the stairs or someone removed the shrubbery after design. In view of the extensive injuries and the jury appeal of the plaintiff, the landscape architect agreed to contribute $460,000 to the $1.5 million settlement. UNINSURED OTHER PARTIES A civil engineer provided site design services for development of upscale single-family residences. The site was considered sensitive because a portion of the area bordered a creek that was prone to flooding. To accommodate this sensitivity, houses in certain locations were set back from the creek. Both the geologist and geotech retained by the developer agreed that the design would not cause erosion. Several years later, after two years of exceptionally heavy rainfall, the force of the water in the channel eroded the banks and threatened homes. Although the engineer had minor exposure based on the design, the geologist, geotech, and developer had no insurance. The engineer paid the majority of the claim. POOR COMMUNICATION AND COORDINATION When multiple parties are involved in a project, it is imperative that everyone’s roles and responsibilities are clearly defined in their respective agreements with the client and in the construction general conditions. On a project involving a court house renovation, a county entered into four prime contracts with four separate contractors in addition to a construction manager (CM). At many critical junctures during construction, communication was virtually non-existent. Serious delays resulted and with the project not even 50% complete, the county exercised its contractual right to claim liquidated damages and placed all four contractors on notice. Before long, each contractor had filed suit against the county, the CM, the other contractors, and the architect for delay damages. The architect convinced the parties to mediate, but no one was optimistic. At the end of two days, the county and the CM paid the four contractors a total of $480,000. The architect escaped with no payment. COPYRIGHT INFRINGEMENT The first architect on a mixed-use condo project was terminated after completing conceptual and schematic drawings. Although the client assured the second architect that he had permission to use the plans, there was nothing in writing. The second architect had to use the plans as far as the footprint of the building as that had already been submitted to the civil engineer for permitting. The second architect then started anew on the rest of the design with input from the client as to the number and type of units and overall look of the building. The first architect sued the client and second architect for copyright infringement. Although there were significant differences between the two designs, there were also significant similarities. The claim settled for $100,000 with a $30,000 contribution from the second architect.
28 • From Risk to Profit - Benchmarking and Claims Studies
Victor
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