Another Reason for Engineers and their Carriers to be Cautious

Yet another reason for engineers and their carriers to be cautious-- see Mid-State Surety Corp. v. Thrasher Eng'g, Inc., 2006 WL 1390430 (S.D.W. Va. May 16, 2006), as noted in this month's Construction Channel.

While it may well be that engineers do not necessarily owe the same contractual duties to the contractor that they do to the owner with whom they have privity, if in the carrying out of the engineer's duty it is reasonably foreseeable that there are others, as surety, who may look to the engineer for protection by its performing its responsibilities to Owner, then if the engineer is negligent, the engineer may be subject to action. When representing the Contractor and its Surety, one must be careful in preserving all parties' claims against the Engineer- they are not always the same.

We just saw the Federal District Court for the Eastern District of North Carolina let the engineer out of a case, in part on a procedural issue and in part on the theory that the Contractor could not look to the Engineer for Contract Administration oversight lapses as that duty ran to the Owner, not the Contractor. I am sure the Surety involved behind the Contractor cannot be happy with this result. (Today's entry was published by John Springer of Womble Carlyle's Construction and Real Estate Development Group.)