John Falcone and Scott Kowalski prepared and submitted an Amicus Curiae (“friend of the court”) brief to the Virginia Supreme Court on behalf of the Associated Builders and Contractors, Inc., the Associated Builders and Contractors, Virginia Chapter, Inc., and the Associated General Contractors of Virginia, Inc. in a case which has the potential to radically alter existing commercial practice in the construction industry.
The case originated in Fairfax County and involved the construction of a new church and its large parking lot. The church hired an engineer to design a storm water management system. The engineer’s design required use of a Rain Tank device under the parking lot, which subsequently collapsed causing substantial damages. The trial court found that the engineer was at fault for requiring the Rain Tank, which was not an appropriate system to use for the site. The engineer has appealed to the Supreme Court, arguing that the general contractor assumed the risk of including the Rain Tank in the construction process, even though the engineer’s design required its use. Various engineer associations filed an Amicus brief supporting the engineer’s position.
The case represents a challenge by professional engineers to the prevailing commercial practice in the construction industry concerning the allocation of risk for the defects and errors in an engineer’s design. The existing rule of law and commercial practice allocates risk in a construction project to the party best situated to assume that risk. Because the engineer’s position in this case is a radical change to the existing rules and is also a dramatic departure from the construction industry’s accepted understanding of the standard AIA contract used by the industry, the Contractor organizations felt the need to submit a brief opposing those changes.
