Liability

[dik]

I’m looking for some comments:

Our Client owns some steel assemblies that will be anchored to a waterway and and will bolt together to form a cofferdam.

The steel assemblies are in a state of disrepair and require maintenance or remedial work prior to use.

The Contractor has hired an Independent Engineer to provide the design for the cofferdam using the steel assemblies.

The Contractor, with our Client’s knowledge, has asked this Independent Engineer to evaluate the cofferdam segments and to provide a manner of repair, and to supervise the repair. We will provide an independent review of these repairs.

The report on the 'deterioration' of the steel assemblies and the repair of same has been prepared by the Independent Engineer for the Contractor and not our Client.

Our Client and ourselves have a copy of the report.

The repair will be undertaken by the Contractor.

The repaired steel assemblies will then be used to construct the cofferdam.

Is it correct to state the following?

In the event of a failure, because our Client ‘owns’ the cofferdam components, he is far more exposed to liability than if the Contractor owned the cofferdam material and undertook repair to these himself as part of normal maintenance.

In the event of a failure would we be more exposed to liability (we'd still be on the list of litigants, I suspect, even if we had not reviewed the repair)?

Just looking for some thoughts...
Dik

 

[Ron]

dik...I would get a statement from the contractor and the Independent Engineer that the materials, after repair, will perform in the same or similar manner to new material and that they will indemnify you and the owner for failure of such material for the life of the cofferdam (assuming the cofferdam will not be a permanent structure)

Ron

 

[cvg]

did your client require the contractor to use the cofferdam or just offer it up as a potential cost saving measure? Was the steel assembly a cofferdam in it's previous life, or is this just scrap steel being re-purposed to manufacture a dam?

 

[MikeHalloran]

Four defendants so far. ... lots of permutations available for finger pointing should things go sour.

Your client was ultimately responsible for the disrepair, so I don't see that transfer of title to the contractor would make a difference to a landshark. They just follow the money.







Mike Halloran
Pembroke Pines, FL, USA

 

[dik]

cvg:
The cofferdam was originally owned by the Contractor and as part of an earlier contract the Client took ownership.

Dik

 

[paddingtongreen]

The one thing you must not do is comment on the report, if you do, you can be construed as having taken part ownership of the parts on which you didn't comment.

You must have a statement in your documents that the design is based on new or as new material provided by the client.

Run it by your liability insurer, and put your deductible into escrow.

Michael.
Timing has a lot to do with the outcome of a rain dance.

 

[cvg]

now, did the owner require the contractor to use the old cofferdam or was it the contractor's decision?

Do a little research on the Hoover Dam Bypass to see what could happen if a contractor reconditions and old steel assembly for use on a new project and it fails...

http://enr.construction.com/news/transportation/archives/070205a.asp

http://enr.construction.com/news/transportation/archives/080220a.asp

 

[MiketheEngineer]

Here we go again - you are posing a very legally technical question to a bunch of enginers. While the answers may be right OR wrong.... please do yourself a favor and get with a COMPETENT lawyer experienced in these types of matters.

 

[dik]

Thanks, Mike... but I was already aware of some of the legal implications of this. I'm not playing lawyer (I have a tough enough time playing engineer at times)... just trying to keep the client and company I work for (and myself) out of trouble. My comments will find their way through the legal department...

Prior to posting the query, I had already addressed Ron and Paddington's comments... I hadn't considered the implication of MikeH's comments... one of the reasons I posted the query was to obtain 'outside' insight <G>.

Dik

 

[cvg]

I would disagree somewhat with MH, the contractor generally assumes liability for the project once he begins work. His means and methods are generally his responsibility. They often use equipment owned by others and it makes no difference. The contractors actions, not ownership of equipment establish his liability. Now, if the owner reviews his work plan for the cofferdam and "approves" it, then the Owner assume partial liability. Also, if the Owner "required" the contractor to use the old cofferdam, that also transfers partial liability back to them.

MH is right on the money that when the lawyers get involved, they simply make a list of everyone's name that shows up in the project file and subpeona each and every one on the list. In fact the claims often also include reference to "Un-named defendants" which can be named later once there has been full discovery. From that point on all are served and required to appear and defend themselves. The attorneys win, everybody else has to pay the attorney fees.