Larry Wilshire, Michael Peck, and Sterling Elza named co-chairs of the Construction Law Practice Group

Larry Wilshire, Michael Peck, and Sterling Elza have been named Co-Chairs of the Construction Law Practice Group by Brown, Dean, Proctor & Howell, L.L.P.

Mr. Wilshire has more than 30 years of experience in construction law. Mr. Wilshire also practices in the areas of business and commercial law as well as housing law.

Mr. Peck has more than 22 years of experience in construction law. Mr. Peck also practices in the areas of personal injury and railroad law as well as business and commercial law.

Mr. Elza has more than 17 years of experience in construction law. Mr. Elza also practices in the areas of insurance coverage and defense as well as business and commercial law.

Brown, Dean, Proctor & Howell, L.L.P. is one of Fort Worth’s oldest law firms, having been established in 1922.

Homeowner May Sue Construction Subcontractor

Under certain circumstances, a homeowner may be able to sue a subcontractor even though the homeowner has no direct contract with the subcontractor per a Texas Supreme Court recent opinion. “Having undertaken to install a plumbing system in the house, the plumber assumed an implied duty not to flood or otherwise damage the trust’s house while performing its contract with the builder.” The Texas Supreme Court analyzed the economic loss and said it was not applicable because the duty not to flood the home was independent of the subcontract with the builder and the damages extended beyond the anticipated benefit of the plumbing contract. The full opinion is here:

Economic Loss Rule Applied to Negligent Misrepresentation in Construction Claim

The economic loss rules limits a party’s ability to recover purely economic losses under tort theories such as negligence and strict liability. The Texas Supreme Court’s latest decision on the Rule is a good review of the applicable case law. Ultimately, in this case, the Court held a general contractor could not “recover the increased costs of performing its construction contract with the owner in a tort action against the project architect for negligence misrepresentation—errors—in the plans and specifications.” The full opinion is here.

General Contractors – When Sued, It Just Became Easier to Sue the Engineer or Architect.

On July 3, 2014, the Texas Supreme Court clarified an issue which has come up in my practice more than once – if a general contractor is sued, does the GC have to file a certificate of merit with any pleading against an engineer or architect that the Plaintiff has already sued or the GC brings into the lawsuit?


In the past, most law firms representing GCs have filed a certificate of merit. Then, typically when subcontractors also sue the architect or engineer, they typically attempt to incorporate the GC’s certificate, but some file a separate one in an abundance of caution. Now, the Court has saved GCs and subcontractors the time and expense and held that only “the plaintiffs” meaning “the parties that initiated the suit” are required to file certificates of merit to sue architects or engineers.  


Of course, this ruling makes it much easier for a defendant to bring an architect or engineer into the lawsuit than these professionals would probably like. However, typically, these claims will be for contribution and indemnity and not substantive. On one hand, this makes it easier for the GC and these professionals to create a unified defense because the GC is no longer having to obtain an opinion letter that the architect or engineer did something incorrect (which is the purpose of the certificate of merit). On the other hand, arguably, for the GC to prove it is entitled to contribution or indemnity, the GC will have to meet its burden of proof at trial and show evidence of the professional’s alleged wrongdoing. In addition, should the Plaintiff decide to sue the professional after it is brought in by the GC, the Plaintiff will be required to file a certificate of merit. Of course in disputes initiated by the GC against an architect or engineer, a certificate of merit will be required as always.


To read the full opinion click here.