Message from the Chairs

The Construction Litigation Committee is dedicating this edition of Construct!  to the issues related to the professional liability of design professionals.

The role of design professionals has shifted and morphed over the years. Many years ago, the architect held the role as “master builder” responsible for all design functions and the oversight of construction activities. In more recent decades, the role of the designers in the construction phase decreased but all of the design function resided in the architect and consultants under the architect’s control. In this approach all of the construction responsibility was purchased from a single general contractor based upon a comprehensive and complete set of written plans and specifications. Those of us who have practices for more than a few years in this field grew up with this “design-bid-build” model as the heart of the construction practice. Most of the statutes and case law with which we are familiar evolved under this model. A perfect example is the Spearin doctrine under which the Owner warrants the sufficiency of the design to the construction contractor.

Recently the differentiation between the roles of the designers and the construction contractors’ has blurred. The idea that buildings could be built more quickly if construction started when the plans for the foundation and superstructure were completed, but the remaining design was incomplete, led to the adventure of “fast-track” construction. As specialty contractors for such systems as structural steel, foundation, HVAC, trusses, pre-stressed concrete, curtain wall, panelized wall systems and others developed unique products and special design expertise, architects and their consultants have ceded more and more design responsibility to the construction contractors who hire the specialty contractors as subcontractors. Owner’s seeking potential savings by elimination of what are perceived as wasteful mark-ups have taken for themselves the traditional roles of general contractor or architect, directly engaging subcontractors and consultants. As paper-based design has given way to computer based systems, beginning with computer aided design (“CAD”) and continuing to Building Information Management, new skill sets, roles and challenges have evolved among the design and construction team. The drive to “design build”, EPC contracting, DBOM contracting have reversed the role of architect from “master builder” to a subcontractor or joint venture with the construction contractor.

With all of these changes and all of these fingers in the design pie, who is now responsible for ensuring a design is sufficient and to whom is that person or those persons responsible?

Our authors explore some of the legal issues posed in this rapidly changing environment. Patricia Ficaro explores the responsibilities of the design professional for competence, coordination and completeness of the design documents. Vincent O’Flaherty explores the designers’ liability in the context of catastrophic events such as building collapse. William Kelly and Lynn Toups explore practical concerns about the limits for design liability insurance policy and the effect of “defense within limits” endorsements upon both the protection offered by such policies and their effect upon the litigation process. Fredrick E. Hedberg and Antonino M. Leone advance the cause for Federal Good Samaritan legislation to protect the designers for their conduct in emergency situations.

The current issue of Construct! comes within an extremely active year for the Committee.

At the Section of Litigation Annual Conference in Washington, DC (April 16-18, 2008) the Committee will participate with the Real Estate Committee in the presentation of a timely program concerning the meltdown of the Mortgage and Real Estate markets and its effect on contraction contractors. We also hope to present a substantive breakfast program on the litigation related issues emerging form the increasing prevalence of Public Private Partnerships.

At the Forum on the Construction Industry’s Spring Meeting in La Quinta, Ca. (April 24-26, 2008) the Committee will present a program on Utilizing and Defending against TRO’s and Other Fast-Track Litigation Processes and we have proposed a substantive breakfast program on experts and e-discovery.

We have submitted multiple program proposals for the ABA Annual Meeting in New York City in August, 2008.

In addition to the programs, we expect to publish two additional editions of Construct! We are currently soliciting proposals for the theme of the Spring edition. If any of you have theme or article ideas, please contact Dave Kurtz or Dave Sweitzer.

Looking ahead to the future, we have agreed with the Forum on the Construction Committee to co-sponsor the Forum’s annual winter meeting beginning in 2009. This is the program formally co-sponsored by TIPS that has been extremely successful for the Forum, drawing upwards of 600 attendees.

We expect to continue improvement of our website with the addition of useful new content and the expansion of existing features. Notable features added in the last year include links to useful sources of information including articles and news features published on the websites of our member firms. These link pages present an excellent opportunity for members to obtain wider circulation of their published information. If you would like your web-based article or news piece linked to our website please submit the link to Tina Paries or Patrick Greene. Please favor Tina Ray with any useful news and information links as well.

This level of activity is only possible through the tremendous efforts of our membership and, especially, our subcommittee chairs. We should be especially grateful for the untiring work of the chairs of our program subcommittee, Charlotte Weisner and Drew Williams and the editors of Construct, David Sweitzer and David Kurtz, who have worked tirelessly to assure that our Committee has provided the highest level of programs and content to our committee members.

Our subcommittee chairs can not do all of this on their own. They require the active participation of our membership in participating in programs, developing case notes, providing articles for Construct!, and other activities. The opportunity for all committee members to participate is available and their assistance is welcome and necessary for the continued success and growth of the Committee. We are an equal opportunity Committee and welcome participation by all of our members. We especially welcome participation from the newest members of the profession, our Young Lawyers, who have grown up with the technologies that some of us older lawyers view as alien and whose fresh ideas will help all of us confront the emerging issues these new technologies represent.

Patrick Greene
Charlotte Wiessner
Chair, Construction Litigation Committee