What ‘Construction Services’ Require Professional Liability: Construction Litigation

by | Mar 31, 2010 | Contracts, Defective Work, Litigation & Arbitration

1. Design/Build Firms

Firms which decide to participate in the “Design/Build” Construction Delivery System agree to both construct and design the project.  What distinguishes this form of project delivery system from the traditional method is the “single point of responsibility” which mandates the Design/Builder to be responsible for the design of the project as well.  Again…please note: “The Design/Builder assumes the responsibility of the design services…in addition to the traditional construction means, methods, process, procedures, sequences and safety”

2. Construction Managers/Consultants

Construction Managers typically work with the “Owner” of a project and design professionals from the beginning of design until project completion.  Some of the possible services that can be provided by Construction Managers are:


  • Project Management
  • Designer Selection
  • Designer Orientation
  • Designer Contract Preparation
  • Design Phase Milestone Schedule
  • Time Management
  • Cost Analysis/Management Control/Reports
  • Cash Flow Analysis
  • Construction Market Survey
  • Project and Construction Budget
  • Value Engineering Review/Analysis/Implementation
  • Establishment of Management Information Systems
  • Design Phase Procedures
  • Project Management including Progress Meeting & Conferences
  • Review of Design Documents/Recommendations
  • Approvals by Regulatory issues
  • General Conditions Review/Analysis/Implementation
  • Project Funding
  • Revisions of Master Scheduling
  • Monitoring the Design Phase Milestone Schedules
  • Pre-Bid Construction Schedules
  • Pre-qualifying Bidders/Advertisements & Notices
  • Bid Opening Review Analysis
  • Review and Implementation of Construction Documents
  • Permits/Insurance/Labor Affidavits
  • Quality & Warranty Review/Reports/Control/Analysis & Approval
  • Change Order Review/Analysis/Reports/Control & Approval
  • Progress Payments Review/Analysis/Reports & Approval
  • Contractors Safety Program Review/Analysis/Approval & Implementation
  • Services related to Investigation/Evaluation/Appraisals of existing Conditions/Facilities/etc.
  • Determination of accuracy of existing drawings or other information.
  • Claims & Litigation Support

Important Aspects to Remember About Construction Litigation

Don’t forget…when you review the possible services that can be provided by this delivery system…it is important to remember the vast majority of Construction Managers will be covered only by the usual Commercial General and Umbrella/Excess policies.  The Commercial General and Umbrella/Excess policies respond to allegations of negligence…which cause Bodily Injury and Property Damage type claims as narrowly defined in these coverages.  But…the vast majority of claims that may arise… most likely will not cause any type of Bodily Injury or Property Damage type claims to trigger these coverages… hence no coverage.  As a result… Contractor/ Construction Managers Professional Liability coverage is required to respond to the vast majority of these claims that may arise from professional services.  Also, the precise duties of Construction Managers must always be carefully defined in the contract with the Owner and coordinated with existing coverage.

3. Any Contractors Who Contracts Directly With Any Design Professional...Environmental Consultant or Related Professional…

Contractors are increasingly dealing directly with design professionals when providing construction services.  If a contractor works directly with a design professional…the contractor can be vicariously liable for the performance of those design services.  Obviously, the meaning for a contractor can vary, but whenever this relationship exists…the contractor may be vicariously liable for professional services rendered on the project by the chosen professional.

Related Post