First BIM Lawsuit Settled

Posted on May 30, 2011


An agreement has been reached in what is believed to be the first design- or construction-related lawsuit involving building information modeling (BIM).

Generally prior related case law helps guide later decisions in similar lawsuits. However, BIM is a new frontier for construction law. For this reason, many people in and tangentially related to construction are paying attention to how this case resolves itself.

Those familiar with BIM and how it facilitates work between the design and construction team may recognize that BIM’s most obvious legal concern is that it blurs the line between where design roles end, legally, and construction roles begin, or where A/E stops and C starts.

Specifics of the case in question seem to point to lack of communication between architect, MEP subcontractor and contractor. From my experience with BIM, teams can get lulled into a false belief of instantanous information transfer as a solution for old fashioned face-to-face discussions. Real-time change to the design has BIM modelers believe everyone knows what is going on, and that teams do not need as many meetings to discuss changes. Strangely, teams must communicate more with BIM, which is not a bad thing.

A few things of note with this case.  First, BIM has been around quite a while, maybe a decade or so. If this is the first known litigation centering on BIM, that is not a bad track record at all. Second, this case appears to be generated from the design-bid-build procurement method. If this project was procured via integrated design-build, which Haskell executes, the 0nly potential dispute would be between the design-builder and the MEP subcontrator. This would not materially affect the owner, or if it did via schedule or cost, it would be the responsibility of the design-builder to remedy behind closed doors with its team, not for the owner to sort out.

Like other innovations before it, BIM is treading on new ground, figuratively and especially legally. Although an established and broadly-accepted design and construction production and coordination tool, BIM’s legal history is almost nil; in effect it is a legal Wild West until some general guidelines and benchmarks are set. As owners sift through the fact surrounding this case and what it all means philosophically for their projects, consider what this means for even more nascent and less-accepted industry inventions like integrated project delivery (IPD). The risk averse out there may want to wait several years for IPD’s legal watershed moment before diving in with both feet.