Construction Today - January 2017 - 9
tor's right to rely on the accuracy of the documents. Will courts view
BIM through the same lens and find implied warranties and obligations in the practical requirements of the technology? And will they
similarly refuse to enforce contractual disclaimers and limitations
that are contrary to those realities?
Will courts recognize liability outside the contract; for example,
for negligence? Contractual disclaimers and limitations of liability might not limit or bar such claims. In traditional contracting
arrangements, the main barriers to extra-contractual remedies are
the economic loss doctrine and its close cousin, the gist of the action
doctrine. Where applicable, both prevent a party from attempting
to avoid contract limitations by bringing claim for "negligent"
performance of contractual obligations. But there are recognized
exceptions that might be applied to BIM.
tor-supplied information, or if the contractor
failed to detect conflicts that should have
been apparent from the modeling, would
it be liable to the architect and/or owner?
Similarly, if the architect failed to address
conflicts between the design and shop drawings or product details, would it be liable for
the costs to correct or the resultant delay?
Proponents assured that BIM could be
implemented while preserving the traditional allocation of risk among owner, designer
and builder. Proposed contract language was
developed that maintained the lack of privity
between designer and contractor, reaffirmed
the architect's sole responsibility for design, and
preserved the owner's liability under Spearin.
Affirmations and disclaimers cannot, however, alter the fact that being able to rely on
the accuracy of shared information is critically important. Recognizing the importance of
ensuring that the information provided was
accurate and reliable would create a duty,
however, and duty usually carries with it liability. But, it was the fear of such liability that
necessitated the affirmations and disclaimers
in the first place. In an attempt to solve this
conundrum, some contracts walk a very fine
line; they acknowledge that each party had
a duty to ensure the information it provides
is accurate, but either disclaims any right to
rely on the information or limits the liability
of the party that provides it.
But will courts give effect to this language,
or will they look past it and assess liability
in accordance with the practical realities?
Given that there have been very few reported
decisions applying or interpreting BIM
contract terms, we simply do not yet know.
There are a number of established legal
theories that could be applied to find liability
despite the contract language, however. To
begin with, it is important to note that the
Spearin Doctrine created an implied duty
based on the realities of the design-bid-build
construction process. Disclaimers of liability
have routinely found to be unenforceable,
and clauses requiring inspection of the site
or review the plans do not lessen the contrac-
is a partner
Pepper Hamilton LLP
and a member of the
Groups. He practices in
with an emphasis
on constructionrelated claims. He
also negotiates and
Rules May Not Apply
First, in some jurisdictions, under certain circumstances, the
doctrines do not apply to the provision of services, particularly
professional services. Therefore, if the sharing of information and
collaboration in the design effort is considered to be a pre-construction or delegated design service, the rules may not apply to preclude
Second, the doctrines have been held not to apply to the negligent
provision of information. A number of states recognize a cause of
action for the negligent provision of information under §552 of
the Restatement (Second) of Torts, which recognizes claims against
"one who, in the course of his business ... supplies false information
for the guidance of others in their business transactions ... if [the
provider] fails to exercise reasonable care or competence in obtaining or communicating the information." Finally, the doctrines are
generally inapplicable when the claim involves personal injury or
damage to property.
and other commercial
managers, owners and
Madigan is regularly
listed in The Best
Lawyers in America®
Super Lawyers for
Litigation, and has an
Make No Assumptions
Given the lack of reported cases interpreting or applying BIM contract language, we do not yet know the answers to these questions.
The purpose of raising them is not to discourage the use of BIM. The
technology is a powerful tool, and is proven to be effective in the
early detection and elimination of design errors and conflicts. In fact,
the lack of reported case law may be a testament to the effectiveness
of the technology.
But, the participants, contractors in particular, cannot casually
use the technology assuming they are protected from liability in the
event that something goes wrong. Each must make a real commitment to participate as a partner in the process and ensure that the
information it contributes is accurate and complete. In other words,
it must actively manage and mitigate the risks of collaboration in
order to fully enjoy its benefits.
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JANUARY 2017 CONSTRUCTION-TODAY.COM