1. Waller Lansden Dortch & Davis
American Bar Association
Forum on the Construction Industry
2012 Mid Winter Meeting
Why Would I Do That? A Review of Factors to Consider When Determining Who Should Engage the Geotechnical Consultant
Christopher S. Dunn
Waller Lansden Dortch & Davis
Craig Williams
HKS Architects, Inc.

2. What is a Geotechnical Consultant?

3. Geotechnical Report Site feasibility analysis Soil analysis
Recommendations to developer, designers & contractor

4. Site Feasibility Analysis
Evaluation of site as it relates to:
Building “footprint”
Any differences in stories
Overall construction program
Budget
Project schedule

5. Site Feasibility Analysis
Consider factors:
Physical
Cultural
Regulatory
Climate

6. Soil Assessment
Sampling
Classification
Analysis

7. Who Should Engage the Geotechnical Consultant?

8. Who Should Engage the Geotechnical Consultant?
Owner
Owners often want a single point of responsibility for all “design” elements and consider this an architect’s job.
Consider damages.
Form AIA documents provide that Owner shall engage Geotechnical Consultant.
AIA G in conjunction with AIA B

9. Who Should Engage the Geotechnical Consultant?
Architect
Architects often think that the role of the Geotechnical Consultant is different from consultants they traditionally engage.
They often have better knowledge to select, determine scope, and evaluate Geotechnical Consultants.
Under AIA documents, Architect has duty to notify owner of any necessary consulting services.
Architect liability policies typically cover geotechnical work.

10. Who Should Engage the Geotechnical Consultant?
Hybrid
Consider increased costs associated with this approach

11. Standard Forms AIA EJCDC Owner’s responsibility to retain consultant
Depends on the form

12. Why should I pay special attention to contract provisions related to the Geotechnical Consultant?

13. Common Claims
Negligence – Am. Mutual Family Ins. Co. v. Am. Girl Inc., 673 N.W.2d 65 (Wis. 2004).
Breach of Contract – W.H. Lyman Const. Co. v. Village of Gurnee, 403 N.E.2d 1325 (Ill. Ct. App. 1980).
Negligent Misrepresentation – SMC Corp. v. NJ Water Supply Auth., 759 A.2d 1223 (NJ App. Div. 2000); PT&L Constr. Co. v. NJ Dept. of Trans., 531 A.2d 1330 (NJ 1987).
Claims by Owners, Contractors, Design Professionals, and even Subcontractors.

14. Geotechnical Consultant’s Standard of Care

15. Economic Loss Doctrine as a Defense
Majority rule
Minority rule

16. Negotiating Geotechnical Related Provisions

17. approach: Owner is responsible for Geotechnical Consultant. vs.
Architect is responsible for Geotechnical Consultant.

18. Architect or Construction Manager in privity with Geotechnical Consultant → possible liability for damages in excess of limit of liability in Geotechnical Consultant’s contract

19. Owner in privity with
Geotechnical Consultant
should look to alter language
in owner/architect agreement
to allocate more risk to
architect.
Consider costs.

20. Insurance Considerations

21. Insurance Considerations
Professional Liability Insurance
Claims Made Policy vs. Occurrence Policy
Importance of Continuous Coverage with Same Insurer
Benefit of Higher Deductibles
Appropriate limits vary, but most typical is $1 million per occurrence.
No additional insured status available.

22. Insurance Considerations
General Liability Insurance
Occurrence Based Policy
Exclusions for Professional Services
Additional Insured Status

23. Insurance Considerations
Waivers and Limits
Limiting Liability – damages won’t exceed fee
Waiver of Consequential Damages