Subconsultant Not Liable to Owner for Retaining Wall Failure
Publication: Journal of Professional Issues in Engineering Education and Practice
Volume 132, Issue 2
1052-3928(2006)132:2(156)/asset/08246a4f-6384-4e74-97dc-36cb8bb0defc/assets/(asce)1052-3928(2006)132:2(156).fp.png)
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Endnotes
1.
125 Cal. App. 4th 152, 22 Cal. Rptr. 3d 660 (2005).
2.
The property was owned by the Weseloh Family Limited Partnership, which is leased by Weseloh & Sons, LLC, and Weseloh Corporation (“Owners”).
3.
The decision does not explain why the exact amount paid is unknown.
4.
The court also dismissed the Contractor’s claim for equitable indemnity, holding that such claims were against public policy since they created a conflict of interest between the Contractor and the engineer. The trial court cited to Ratcliff Architects versus Vanir Construction Management, Inc., 88 Cal.App.4th 595, 106 Cal.Rptr.2d 1 (2001) and Jaffe versus Huxley Architecture, 200 Cal. App. 3d 1188, 246 Cal.Rptr. 242 (1988) in support of its ruling.
5.
“Private ordering” occurs when individuals allocate the risk amongst themselves through contractual means as opposed to relying on the courts to allocate the risk. See Bily, 3 Cal.4th at 403, 834 P.2d at 765, 11 Cal.Rptr.2d at 71.
6.
This last factor is similar to the fifth factor of the Biakanja test. Essentially, the court looks to the likelihood of increasing the quality of the work by imposing the tort duty.
7.
The court also upheld the trial court’s ruling dismissing the Contractor’s claim for equitable indemnity. The court relied on BFGC Architects Planners, Inc. versus Forcum/Mackey Construction, Inc., 119 Cal.App.4th 848, 14 Cal.Rptr.3d 721 (2004), which held one may not assert a claim for equitable indemnity in the absence of a tort duty owed on the part of the indemnitor. As Randle and Owen did not owe the Owners a duty, the Contractor could not maintain a claim for equitable indemnity.
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Information
Published In
Journal of Professional Issues in Engineering Education and Practice
Volume 132 • Issue 2 • April 2006
Pages: 156 - 157
Copyright
© 2006 ASCE.
History
Published online: Apr 1, 2006
Published in print: Apr 2006
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