Construction Claims Archive: CM not responsible to contractor for coordination

CM NOT RESPONSIBLE TO CONTRACTOR FOR COORDINATION
MULTIPLE PRIME CONTRACTS; COORDINATION
Matrix Construction, LLC v. Barton Malow
Court of Appeals of Michigan, No. 265156 (February 21, 2006)

A Michigan court has ruled that a construction contractor could not maintain an action against a construction manager for negligent scheduling and coordination of the work.

Schoolcraft College was developing an information technology center at its Livonia campus. Schoolcraft entered into an agreement with Barton Malow to serve as construction manager on the project. The CM’s duties included scheduling and coordinating the work of the various trade contractors.

Schoolcraft awarded a construction contract to Matrix Construction, LLC. Matrix later filed suit against Barton Malow alleging negligent scheduling and coordination of the trade contractors. Matrix claimed the delay and disruption had increased its performance costs.

Barton Malow argued that under Michigan law, a plaintiff may not sue for negligent performance of a contract to which the plaintiff was not a party. Barton Malow said all its obligations on the project were established under the terms of the CM agreement and were owed solely to Schoolcraft. The CM had no independent duty to Matrix.

Matrix countered that Michigan law has allowed a construction contractor to sue the project owner’s consulting engineer for negligent preparation of a specification despite the absence of any contractual relationship between the contractor and the engineer. Bacco Construction Co. v. American Colloid Co., 384 N.W.2d 427 (Mich.App. 1986); CCM July 1986, p. 8.

The Court of Appeals of Michigan said design professionals can be held liable in negligence to construction contractors because it is foreseeable that contractors will rely on the plans and specifications. The design professional therefore owes an independent duty to a contractor. The same is not true of a construction manager.

“We hold that Bacco is inapplicable because, here, Matrix admits that Barton Malow merely acted as the construction manager for the project, not a design professional that disseminates plan specifications and calculations...Matrix has not alleged that Barton Malow had a duty to act that is separate and distinct from the promise made to Schoolcraft to supervise, coordinate and schedule the work performed on the construction project.”

Editor’s Note: While the duties of a design professional and a construction manger are distinct, the Court did not explain why it is not foreseeable that a contractor will necessarily rely on a CM’s exercise of due care in scheduling and coordinating the work.