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Do engineers owe fiduciary duties to the general public based on rules issued by their governing board? The Houston Court of Appeals recently examined this issue and held that, absent a relationship of trust and confidence, the board rules do not create such a duty. At issue in Hussion Street Buildings, LLC v. TRW Engineers, Inc., was a housing development constructed adjacent to property owned by Hussion. TRW was a civil engineer involved in the development. Hussion alleged that TRW’s scope of work included design of a water-detention plan, but that TRW failed to design or specify one. Huss

Since the onset of the COVID-19 pandemic and the massive social and economic consequences it has wrought, owners and contractors alike have taken a harder look at their contracts.  Do the contracts have force majeure, waiver of consequential damages, or no damages for delay clauses?  Are the clauses written broadly enough to encompass the pandemic and its aftershocks?  It is safe to say that contracts negotiated pre-2020 look a lot different from those prepared after the pandemic was declared. One provision not regularly included in pre-pandemic construction contracts, but now standard in n

Is a failure to procure the right type of insurance for a construction contract a material breach of contract?  If so, what are the damages arising from that breach and are they actual or consequential?  A recent opinion from the Houston Court of Appeals answers these important questions. In Totalenergies Petrochemicals & Refining USA, Inc., v. Kinder Morgan Petcoke, LP, et al., an employee of Kinder Morgan Petcoke (Kinder Morgan), Gary Counts, died at a refinery owned by Totalenergies Petrochemicals & Refining (Total).  Counts’ estate filed suit against Kinder Morgan, Total and s

Recently, in a case in Alabama, an insurance company was able to deny coverage because the builder did not timely report the claim.  In American Builders Insurance Company v. Riverwood Construction, LLC., the issue was whether Riverwood Construction, the contractor and policyholder/insured, had to timely report lawsuits to its insurance carrier. Riverwood was sued in two residential cases in Alabama in 2017 and immediately hired an attorney to defend the case. But, Riverwood apparently failed to send notice of these lawsuits to its insurance carrier, American Builders, until 2019.  Once it

What happens when a clause in a construction purchase order conflicts with a similar, but not identical clause in a quote made part of the order?  The Houston Court of Appeals recently addressed this issue in the context of dueling arbitration clauses, voiding both of them. In Links Constr., LLC v. United Structures of America, Inc., the University of North Texas hired Links Construction, LLC (“Links”) to oversee construction of an indoor practice facility. Links subcontracted with United Structures of America (“United”) to design and provide materials for the roof using an executed P