Geotechnical News March 2011
49
ASFE NEWS
Client-Focused Contract Negotiations Webinar
Now Ready When You Are; CD Available, Too
ASFE’s
extraordinarily
well-
received “Client-Focused Contract
Negotiations” webinar is now
available on-line and/or as a CD. The
presentation, led by Terracon Vice
President/General Counsel Michael J.
Yost, Esq., focuses on tips and tactics to
effectively negotiate difficult contract
provisions. Address the client’s needs
and concerns, not your own, Mike says;
doing so will put you in a far better
position to gain acceptance of the terms
that you prefer and that, in reality, are
better for the client and the project, too.
Originally presented on September 24,
2010, the webinar is neither general
nor theoretical. Mike focuses on
specific provisions consultants have
to deal with every day and provides
practical tools you can use to enhance
your contract-negotiation skills.
Members can watch the webinar
free of charge on-line and/or order a
CD free of charge at the ASFE website.
Just go to
.
From the Bench
No Viable Claim When
Affidavit’s Missing
Hage Engineering (Hage) was asked to
prepare designs for a New York City
townhouse remodeling project. A party
wall was damaged during construction
and the homeowner’s insurance
company – Travelers Indemnity
Company – covered the homeowner’s
damages. It then brought a subrogation
claim against Hage. Hage asked the
trial court for a summary dismissal
of the claim and the court obliged.
Traveler’s appealed to the New York
Supreme Court, Appellate Division,
First Department. How did it turn out?
The court can speak for itself:
“The court correctly dismissed the
complaint as against the Hage de-
fendants. The record makes clear
that Hage had no obligations with
regard to underpinning. Indeed,
pursuant to Hage’s agreement with
Z One, Hage was not contractually
obligated to – and did not – perform
any services related to the instal-
lation of underpinning, shoring or
bracing, or to other stability mea-
sures. That fact was further support-
ed by various notations on Hage’s
drawings and specifications, which
made clear that all underpinning,
sheeting, shoring or other similar
required construction would be the
contractor’s responsibility, that the
contractor was to retain a licensed
professional engineer to provide
all necessary designs and required
inspections, and that the contrac-
tor was to provide all measures and
precautions necessary to prevent
damage and settlement of exist-
ing or new construction….In any
event, as the motion court found,
the record demonstrates that there
is no evidence of negligence on
Hage’s part, since its specifications
were not followed, and the settling
happened only after there was a de-
viation from Hage’s instructions.
“Moreover, Travelers failed to in-
clude an expert’s affidavit to support
its conclusion that it was Hage’s de-
sign “first and foremost” that failed.
A claim of malpractice against a
professional engineer requires ex-
pert testimony to establish a viable
cause of action…. A claim of pro-
fessional negligence requires proof
that there was a departure from ac-
cepted standards of practice, and that
the departure was a proximate cause
of the injury”….Travelers failed to
provide such proof from an expert
in opposition to Hage’s motion, and
this also warranted dismissal of the
complaint as against Hage.”
Travelers Indemnity Company,
etc.,
et
al.,
Plaintiffs-
R e s p o n d e n t s - A p p e l l a n t s
v.ZeffDesign,etal.,Defendants,ZOne
Design, LLC, Defendant-Appellant,
Hage Engineering, et al., Defendants-
Respondents
Business 101
It’s still tough out there, as you know.
And, most regrettably, some or even
many of your competitors have fallen
by the wayside. When you know
or suspect that to be the case, give
the company a call. If you receive
an automated message telling you
that the telephone number has been
disconnected, immediately contact
the telephone company to purchase
the number. In that way, when clients
and colleagues of the now-defunct
organization call, you will be able
to tell them that the company they
wanted to reach no longer exists, but
