WILLIAM H. GORDON ASSOCIATES, INC.
HERITAGE FELLOWSHIP, UNITED CHURCH OF CHRIST, A/K/A HERITAGE FELLOWSHIP CHURCH
THE CIRCUIT COURT OF FAIRFAX COUNTY. Jane Marum Roush, Judge.
F. Lee, Jr. (Jonathan C. Shoemaker; Arthur T.K. Norris; Lee
& McShane, on briefs), for appellant.
R. Folk (S. Miles Dumville; Alison R.W. Toepp; Reed Smith, on
brief), for appellee Heritage Fellowship, etc.
brief filed by appellee Whitener & Jackson, Inc.
Curiae: American Council of Engineering Companies of
Metropolitan Washington, American Council of Engineering
Companies of Virginia, American Council of Engineering
Companies of Maryland, American Council of Engineering
Companies, American Society of Civil Engineers, National
Society of Professional Engineers, Virginia Section of the
American Society of Civil Engineers, Virginia Association of
Surveyors, Inc., and Engineers and Surveyors Institute
(Joseph R. Pope; Williams Mullen, on brief), in support of
Lemons, C.J., Goodwyn, Mims, McClanahan, Powell and Kelsey,
JJ., and Russell, S.J.
BERNARD GOODWYN, JUSTICE.
appeal, we consider when the cause of action for a negligent
design claim against an engineer accrues. We also consider
whether a construction contract between a contractor and an
owner absolves a third-party engineer of liability. Third, we
consider the evidence required to establish a breach of the
standard of care for a professional engineer. Fourth, we
consider whether a co-defendant is entitled to an offset or
credit when one defendant settles with the plaintiff for
attorneys' fees. Finally, we consider whether extended
construction interest payments are an appropriate measure of
damages for construction delay when the loan term was not
extended or altered by the construction delay.
7, 2006, Heritage Fellowship Church (Heritage) entered a
contract (Engineering Contract) with William H. Gordon
Associates, Inc. (Gordon), an engineering firm, to design
" Final Site Plans" for a rain tank system to be
installed at a property where Heritage was planning to build
a new sanctuary. Per Gordon's plans, the rain tank
was to be buried beneath ten feet of dirt
cover and paved over for use as a parking lot. Heritage also
engaged Gordon to provide " Construction
Coordination." The Engineering Contract states in
Final Site Plan: preparation of final construction documents
for site development to include provisions for 221,000 square
feet building and an approximate 200 space surface parking on
an approximately 5.0 acre site with associated driveways,
grading and storm sewer, sanitary sewer, water mains and
service connections, and erosion and sedimentation control
facilities. Construction documents will include:
o Stormwater Management [RainTank] (SWM)/Best Practices (BMP)
plans -- preparation of detailed SWM/BMP computations and
final design drawings for detention and water quality
facilities adequate to provide the required water quantity
and quality abatement of post-developed conditions. [Task
o Site Plan Revisions [Task 442 B] -- given the fact that
this site plan is being filed concurrent with the rezoning
and special permit, it is inevitable that there will be
changes required to the site plan after its first submission.
Revisions will be required to the grading plans, horizontal
geometry plans, utility plans and erosion and sedimentation
control plans or any other plans in the set. This includes
changes to the plan in response to county first submission
Construction Coordination [Task 454] -- provide assistance to
the Client and/or Client's representative during
construction including review of shop drawings and answering
questions, as required.
Engineering Contract explicitly excluded from Gordon's
promised services (1) " Redesign of the site after the
layout has been approved by the client or his designated
representative" and (2) " Redesign of the site
after the layout has been approved by the Client or his
designated representative or due to Architect's changes
after the site engineering is complete."
the Engineering Contract contained a rider of Gordon's
" Standard Terms and Conditions" with the following
3. In performing its services, Gordon shall be entitled to
rely on the accuracy and completeness of work and information
supplied by third parties, the Client and his authorized
representative and the public record.
. . . .
7. Gordon will perform its services using that degree of care
and skill ordinarily exercised under similar conditions by
reputable members of our profession practicing in the same or
similar locality and in compliance with any applicable codes,
statutes and/or regulations.
. . . .
10. Causes of action between the parties to this Agreement
pertaining to acts or failures to act shall be deemed to have
accrued and the applicable statute of limitations shall
commence to run not later than either the date of Substantial
Completion for acts or failures to act occurring prior to
Substantial Completion, or the date of the final Certificate
for Payment for acts or failures to act occurring after
December 27, 2006, a Heritage representative signed
Gordon's rain tank design plan. On January 2, 2007,
Gordon's engineer signed and sealed it, and on January 9,
2007, it was submitted to Fairfax County for approval.
Following the County's review, the plan was ultimately
approved by the county on August 5, 2009.
rain tank design plan was provided to Heritage's
architect, LeMay Erickson Willcox, on June 9, 2009 for
incorporation into the full site plan, and in November 2009,
Heritage entered into a contract with general contractor
Whitener & Jackson, Inc. (W& J) for the construction
of the sanctuary and parking lot (Construction Contract),
including the rain tank designed by Gordon.
Construction Contract provided in relevant part:
§ 3.1.3 The Contractor shall not be relieved of
obligations to perform the Work in accordance with the
Contract Documents either by activities or duties of the
Architect in the Architect's administration of the
Contract, or by tests, inspections or approvals required or
performed by persons or entities other than the Contractor.
. . . .
§ 3.12.7 The Contractor shall perform no portion of the
Work for which the Contract Documents require submittal and
review of Shop Drawings, Product Data, Samples, or similar
submittals until the respective submittal has been approved
by the Architect.
. . . .
§ 3.12.8 The work shall be in accordance with approved
submittals except that the Contractor shall not be relieved
of responsibilities for deviations from requirements of the
contract Documents by the Architect's approval of Shop
Drawings, Product Data, Samples or similar submittals unless
the Contractor has specifically informed the Architect in
writing of such deviation at the time of submittal and (1)
the Architect has given written approval to the specific
deviation as a minor change in the Work, or (2) a Change
Order or Construction change Directive has been issued
authorizing the deviation. The Contractor shall not be
relieved of responsibility for errors or omissions in Shop
Drawings, Product Data, Samples or similar submittals by the
Architect's approval thereof.
. . . .
§ 12.2.1 The Contractor shall promptly correct Work
rejected by the Architect or failing to conform to the
requirements of the Contract Documents, whether discovered
before or after Substantial Completion and whether or not
fabricated, installed or completed. Costs of correcting such
rejected Work . . . shall be at the Contractor's expense.
also contracted with Professional Service Industries (PSI), a
third-party inspector, to oversee W& J's installation
of the rain tank.
December 15, 2009, Heritage entered into a loan agreement for
an $11.5 million, six-percent interest rate construction loan
to pay for the construction of the church, including the
parking lot and rain tank. The loan had two phases: (1) the
" construction term" was 24 months ending on
December 15, 2011, during which time monthly payments
consisted of interest only; and (2) the " permanent
phase" began on January 15, 2012, consisted of monthly
payments of principal and interest, and the loan repayment
was due in full on the maturity date of December 15, 2014.
October 14, 2010, W& J raised concerns about the
suitability of the rain tank for the location, given the high
water table, including questions about installation and
performance, and submitted a " Request for
Information" (RFI) to Gordon for guidance. In response,
Gordon did not address the installation issues, and it
addressed the performance issues by referring to information
in the manufacturer's drawings to assure W& J that
their ground water concerns would not impact the functional
design of the rain tank; Gordon did not reevaluate the choice
of the rain tank system in light of the concerns raised by
J installed the rain tank between April and May 2011. The
completed rain tank and the parking lot above it collapsed in
August 2011, delaying the scheduled December 5, 2011
occupancy of the church by several months.
designed and W& J installed a different stormwater
management system in January 2012. The Church gained partial
occupancy in May 2012, but was unable to use two wings of the
church and had to hold additional services each Sunday
because the incomplete parking lot could not accommodate the
full congregation at the normal service. The parking lot was
completed and full occupancy granted in August 2012.
refused to pay W& J for installing the new stormwater
system, and also kept the retainer owed to W& J under the
Construction Contract. On January 16, 2013, W& J sued
Heritage for payment, and on April 29, 2013, Heritage filed a
counterclaim against W& J for breach of contract on the