3 Analyses of this case by attorneys

  1. Who’s Responsible for this Project Design? Massachusetts Knows

    Robinson & Cole LLPW. Richard Smith, Jr.October 30, 2015

    Because the contractor is not responsible for the design, the United States Supreme Court defined what has become known as the Spearin doctrine, which holds that the owner impliedly warrants that the plans and specifications are suitable for construction. Massachusetts adopted the Spearin doctrine into its common law in a 1970 decision, Alpert v. Commonwealth, 357 Mass. 306, 320 (1970), when public agencies continued to generally employ only the design-bid-build method. Unlike a design-bid-build project, under the construction manager-at-risk project delivery method, the owner retains a construction manager, who in addition to acting as the general contractor during construction, may consult regarding the design prior to construction starting and, therefore, possibly affect the plans and specifications.

  2. Are You Responsible for a Project’s Design as a Construction Manager-At-Risk?

    Robinson & Cole LLPElizabeth WrightOctober 29, 2015

    Because the contractor is not responsible for the design, the United States Supreme Court defined what has become known as the Spearin doctrine, which holds that the owner impliedly warrants that the plans and specifications are suitable for construction. Massachusetts adopted the Spearin doctrine into its common law in a 1970 decision, Alpert v. Commonwealth, 357 Mass. 306, 320 (1970), when public agencies continued to generally employ only the design-bid-build method. Unlike a design-bid-build project, under the construction manager-at-risk project delivery method, the owner retains a construction manager, who in addition to acting as the general contractor during construction, may consult regarding the design prior to construction starting and, therefore, possibly affect the plans and specifications.

  3. Construction Manager at Risk Held to Assume the Risk of Design Changes on Massachusetts Public Construction Project

    Pepper Hamilton LLPJames HollydayJune 1, 2015

    Coghlin submitted design related change order requests to Gilbane who submitted them to DCAMM (and who apparently passed them along to Ellenzweig). When the parties (Coghlin, Gilbane, DCAMM and Ellenzweig) were unable resolve the claims in mediation, Coghlin sued Gilbane, who asserted a “third party” complaint against DCAMM, seeking recovery for the change order claims based on the long-established Owner’s implied warranty of plans and specifications (Alpert v. Commonwealth, 357 Mass. 306 (1970)). DCAMM moved to dismiss the third party complaint and made two basic arguments: (1) that as a CMR, Gilbane assumed liability for the design of the project, and (2) that given the broad indemnification clause of the contract with DCAMM, Gilbane was obligated to defend and indemnify DCAMM (even though the indemnification clause excluded claims arising out of the Designer’s design of the project).