NUCA NJ's General Counsel Shawn Farrell recently brought to our attention a legal matter taking place in neighboring Pennsylvania that may have a significant impact on the industry and that requires our immediate involvement. Shawn explained that in the case of Cummins Construction, the facts of the case potentially expose "a trend to under-design a project and hold the contractor responsible to design a fix." He concluded that "in essence, the contract language disclaims the implied warranty of project design drawings."
It became crucial that we weigh in on the case. While we are neither the defendant nor the plaintiff, our party has the ability to file an amicus (friend of the court) brief to lay out a particular legal argument that we believe the court should follow. Filing an amicus brief in Cummins v. Bradford Sanitary Authority will assist in the contractor's appeal, the legal position of our friends at NUCA PA who will be taking similar action, and make very clear that our Association will not support the shifting of engineering liabilities onto the contractor.
A victory in Pennsylvania on this issue will establish an important precedent to help contractors should litigation arise in New Jersey. It can also become a potential catalyst for future legislation to stop the shifting of design and engineering liability to the contractor in our state. Shawn will be developing and filing the brief on behalf of NUCA NJ. We will keep our membership updated as the case proceeds.