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Illinois Court Holds That $6.5 Million Malpractice Claim Barred By Statute of Repose

Terra Foundation for American Art, et al. v. DLA Piper LLP (US), 2016 IL App (1st) 153285 - Brief Summary - Plaintiffs filed a legal malpractice action against defendant law firm that plaintiffs had retained in...more

Professional negligence: conveyancers on both sides of a property purchase found liable to a defrauded buyer

In Purrunsing v. A'Court & Co (a firm) and House Owners Conveyancers Limited (2016) EWHC 789 (Ch) Judge Pelling QC in the Chancery Division of the High Court held that both the buyer's and seller's conveyancing solicitors...more

Real Estate E&O Policy Exclusions Arising from Bank-Owned Properties

From the 2015 PLUS Conference session “2015 Real Estate E&O Trends,” Mike Smith (Axis Insurance Services), Eric Myers, RPLU (Victor O. Schinnerer & Co.) and Gary Shendell (Shendell & Pollock) discuss the real estate E&O...more

Federal Court in New York Applies Scope of Duty Analysis in Deciding Claim for Architectural Malpractice

Wax NJ-2, LLC v. JFB Constr. & Dev., 13-cv-4537, 2015 U.S. Dist. LEXIS 74508 (S.D.N.Y. June 9, 2015) - Wax NJ-2, LLC (“Wax”) hired the architectural firm GF55 Partners (“GF55”) to design and then inspect construction of a store that Wax planned to open in New York City. The building which Wax was preparing to lease for the store had been leased as two separate commercial spaces. Wax had the option of moving a partition wall between the two spaces and thus increasing or decreasing the amount of square footage leased for its store.more

Appellate Court Notes

AC35507 - State v. Wright - ?AC35289, AC36395 - Southport Congregational Church-United Church of Christ v. Hadley - The doctrine of equitable conversion did not apply when the decedent contracted to sell real property to the buyer which he had already bequeathed to his church in his will when he died leaving a solvent estate before the closing happened and before the mortgage contingency in the contract had been fulfilled. Therefore the executors should not have been allowed to proceed with the closing on the sale after his death as the title had automatically passed to the church upon the decedent’s death. more

Summary Judgment In Favor Of Broker In Malpractice Case Reversed, Where Special Relationship With Insured May Have Existed

In a case involving alleged broker malpractice with respect to certain underinsured business interruption losses under a commercial property insurance policy, the New York high court reversed a lower appellate court’s affirmance of summary judgment in favor of the insurance broker. The court found that the evidence suggested that “there was some interaction regarding a question of business interruption coverage, with the insured relying on the expertise of the agent,” where the insured testified that (1) she and the broker discussed the coverage...more

Washington Bars Insurers from Maintaining Legal Malpractice Suit Against Policyholder Defense Counsel

In Stewart Title Guar. Co. v. Sterling Savings Bank, et al., Wash. No. 87087-0 (October 3, 2013), the Washington Supreme Court held that a nonclient insurer may not pursue a malpractice claim against appointed defense counsel for failure to assert defenses desired by the insurer, unless the insurer could show it was an intended beneficiary of the legal services provided by appointed defense counsel. The court reasoned that neither an alignment of interest between an insurer and policyholder nor appointed counsel’s duty to inform the carrier regarding case activity equated to an actionable duty of care owed by appointed defense counsel to the appointing insurer. The court declined to reach the parties’ equitable subrogation arguments that formed the basis of the actual legal malpractice claim.more

Nevada Supreme Court Extends Design Professional Economic Loss Rule Defense to Negligent Misrepresentation Claims on Commercial Construction Projects

In 2009, the Nevada Supreme Court (“NSC”) applied the economic loss rule to bar claims of professional negligence by design professionals in commercial construction projects, ruling that “[i]n the context of engineers and architects, the bar created by the economic loss doctrine applies to commercial activity for which contract law is better suited to resolve professional negligence claims.” Terracon Consultants Western, Inc. v. Mandalay Resort Grp., 125 Nev. 66, 77, 206 P.3d 81, __ (2009). more

Appellate Notes: Week of July 15th

Welcome to our Supreme and Appellate Court summaries webpage. On this page, I provide abbreviated summaries of decisions from the Connecticut appellate courts which highlight important issues and developments in Connecticut law, and provide practical practice pointers to litigants. more

Construction Contracts: Best Practices for Minimizing Risk

Reducing risk starts before the ground is broken on a construction project. Construction contracts are unique in that they anticipate change will occur during the project for a multitude of reasons. However, not even the built-in change clause can anticipate every problem. That is why good communication and clear expectations of the parties up front are essential to minimizing or avoiding risk. This article discusses (1) negotiation of key construction contract terms (including scope of work, responsibilties of each party, and dispute resolution proceedures); (2) proper management of construction changes (including construction administration vs construction supervision, change orders, construction change directives, and project delays); and (3) termination of the construction contract (including for cause, for convenience, and wrongful termination). Contract procedures under the AIA, EJCDC, and ConsensusDocs form contracts are also discussed.more

Useless Attorneys’ Fees – The Importance of Understanding Florida’s Rules of Civil Procedure

On September 19, 2012, the Third District Court of Appeals decided that a first party plaintiff could not prosecute a claim against a third party defendant in Brady v. P3 Group (LLC) and Hypower, Inc.more

Taxing Times: HMRC set to fine firms £3,000 for "assisting in preparation of incorrect SDLT returns"

Her Majesty’s Revenue & Customs (“HMRC”) has announced that it intends to start imposing the maximum penalty of £3,000 in respect of online and paper SDLT returns under section 96 of the Finance Act 2003, due to worryingly high numbers of errors on submitted SDLT returns.more

Costly Importance of "Another Set Of Eyes"

The failure to carefully proof our work product is painfully reflected in this article courtesy of, my eagle eye partner, Pat Owens.more

No Chance - Court of Appeal rules not to extend 'loss of chance' to commercial valuations

In this article, we look at how the courts assess damages in 'loss of chance' cases. Michael Axe also reports on the English Court of Appeal's recent warning regarding the dangers of applying these principles to commercial valuations, which is likely to be of particular interest to valuers and surveyors. The 'loss of chance' doctrine has evolved as a way of assessing the value of damages in cases where the claimant has lost a particular opportunity or chance as a result of the defendant's breach of contract or negligence. Damages for 'loss of chance' are, by their very nature, less precise than damages which relate to a specific sum (such as repair costs or unpaid invoices) but the Courts have established a process for calculating the value of such losses. However, in the 2010 case of Law Debenture Trust Corp plc v Elektrim SA, the Court of Appeal provided further clarification on when it would not be appropriate to apply the 'loss of chance' doctrine. In this case, the damages to be paid to the claimant included damages for the loss of a payment that was to have been calculated based on the 'fair market value' of the defendant's assets. The key issue in calculating the 'fair market value' of the defendant's assets was how to assess the value of certain shares that it held. The Court of Appeal confirmed that not every case where the court has to assess what a third party might have done will be treated as a 'loss of chance' case. The Court of Appeal confirmed that in a case such as this, rather than apply the 'loss of chance' principles, the courts should do their best to estimate what a banker would have concluded the true value of the shares to be. The decision therefore appears to draw a distinction between claims relating to a 'concrete' asset (such as a share) and those relating to more 'intangible' assets (such as a right to pursue a court claim).more

Defining the Architect's and Engineer's "Standard of Care"

This article discusses the legal "standard of care" for architects, engineers, and other design professionals on construction projects.more

Real Estate Inspections and Misrepresentations: Must the Real Estate Agent Beware?

With misrepresentation and fraud claims on the rise, real estate agents and brokers should understand the legal consequences of the home inspection contingency, especially when it has been waived by buyers.more

Wrongful/Negligent Referrals - Let the Lawyer Beware! Negligence Lawyers - MSEK, New York by Abe Krieger

In this age of specialists, many lawyers refer clients and potential clients to other lawyers more experienced in a given area of law. Similarly, professionals in different fields refer to other professionals. Indeed, the referral process is a productive source of new business. However, under recent case law, referring without exercising due diligence may be actionable. Recently, New York's Appellate Divisions in the First, Second and Third departments, and a number of other state courts, implicitly recognized negligent recommendation/referral as a potential cause of action. While New York does not yet expressly recognize "negligent referral" or "negligent recommendation" as a cause of action, such a claim may be supported by applying the tort of negligent misrepresentation. A claim for negligent recommendation/referral may also be supported by the scope of duty voluntarily taken as part of a professional's responsibility under the rules governing professional ethics, conduct and responsibility. more

"Am I Covered?" Insurance Considerations for the Design Professional "Going Green"

The emergence of green building and sustainable design has introduced the world of building construction to new territory in the realm of energy savings and design implementation requiring new innovations in project delivery. On the flip-side, green building has also introduced new avenues of liability and exposure to design professionals beyond the traditional risks inherent in performing professional design services. Most business savvy design professionals make the wise decision to invest in professional liability insurance to cover the risks of an unfortunate error or omission. However, in the environment of green building and sustainable design, traditional liability insurance may not be adequate to cover the risks and potential exposure of a failed green project. For the design professional considering “going green” the question which must be asked is: “Am I covered?”more

Repose Re-Examined: When Does the Period Begin to Run?

The Statute of Repose, N.J.S.A. 2A:14-1.1, was enacted in 1967 in an attempt to limit the liability of designers and contractors. In nearly as many years since its enactment, judicial interpretations have examined and reexamined the statute addressing issues ranging from its constitutionality to what constitutes an unsafe condition. One issue, however, which has often presented much debate is when the period of repose begins to run. While several opinions have attempted to answer this basic question, it was not until recently, with the decision Daidone v. Buterick Bulkheading, 191 N.J. 557 (2007), that our Supreme Court had spoken definitively on this subject.more

Negative Pledge Agreements: Are They Enforceable?

Many lenders are willing to provide a commercial line of credit without obtaining a deed of trust, but require the borrower to execute a negative pledge agreement. These negative pledges or negative covenants, which are usually recorded, generally provide that the borrower will not encumber or transfer specified real property during the life of the subject loan. The lender holds “a contractual guarantee that property in which the debtor has an equity will remain unencumbered and unconveyed, and thus available for levy and execution should the creditor reduce his debt to judgment,” according to Tahoe National Bank v. Phillips in 1971. Although few courts have addressed the issue, it is fairly well settled that such an agreement does not create a security interest in the property against which the agreement was recorded. The question presented is whether a negative pledge agreement is unenforceable and, if so, whether a lender who places a demand into escrow as a condition of releasing the recorded instrument has any exposure to the borrower for slander of title. Please see full alert below for more information.more

The Green Architect

"Going Green" may mean increased liability for architects and other design professionals. While architects, as well as other design professionals, are held to the standard of care of the average architect practicing in the same or similar community, how will the growing tend of green building and sustainable design impact this standard? Will architects now be held to the standard of the average "green" architect?more

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