Clearly, it would be impossible to list all of the ways in which a design professional may be sued or become subject to a claim. However, below are some particularly common problems we see resulting in claims, or making claims more difficult to defend. The following list is in no way meant to be exhaustive. Setting a “preventative care” meeting from time to time with your regular defense counsel can help to avoid problems down the road, and often be much more cost effective than waiting until a claim has been made.
Expanded Duty of Care
As noted in the Contract section of this website, occasionally an owner will seek to modify the standard of care to be provided (e.g., “best practices” or “to the highest standard.”) If a design contract calls for “best practices” or the “highest standard of care” then the design professional will not be judged by her peers but by some unknown, and perhaps unreachable, standard of performance. This trap should be avoided by resisting an owner’s efforts to insert language into the design contract that calls for any enhanced duty of care.
Restricted Contract Administration
It may better to eliminate CA from a design contract entirely than agree to provide restricted site observation. The most appropriate description of the design professional’s duty to conduct site visits comes from the AIA A-201 (§ 4.2.2) which provides that the design professional will visit the project at appropriate intervals to the stage of the Contractor’s operations. Too often design contracts specify a both a particular number of site visits (beyond which the site visit is an additional service) and/or a particular interval (e.g., monthly). Some owner attorneys will argue that it is malpractice for an architect to even agree to a limited number of visits at specified intervals because the architect’s standard of care cannot be discharged unless she is free to determine when and how often she will visit the project. The fact that it was the owner that insisted on these limitations in the first place will often be lost in the ensuing litigation (e.g., “you shouldn’t have let me agree to it if it wasn’t sufficient.”) Efforts by the owner to place these kinds of limits on the designer’s site visits should be resisted.
One-sided Termination Provisions
Design contracts sometimes allow the owner to terminate the designer’s services for convenience on short notice, but fail to allowing the designer to stop working even if he is not being paid. Owner and designer should have relatively equal rights to terminate the design contract.
Hidden Responsibility for Means and Methods
A design professional should avoid agreeing to do anything more than become generally familiar with the progress of the work through observing construction. Agreeing to inspect or supervise construction can lead to a responsibility for defective work and or the safety of construction workers.
Failing to Pass Indemnity Down
Many states require agreements to indemnify in construction contracts to be included in the contract if it is in writing. If an owner includes a written indemnity provision in the owner/architect contract then the architect may be liable for damages the owner has to pay others that are based on the work of the architect or its consultants. In turn, if the architect fails to include a written indemnity provision in its architect/consultant contracts, then the architect may be forced to pay the owner for its consultant’s mistakes. For more information, see the “Indemnity” tab under the “Disputed Work” section of this website.
Failure to Control Expectations—Lost Profit Claims
Owners of commercial projects who anticipate using their new buildings to create or expand a business will sometimes blame the design professional when some aspect of the completed structure does not conform to the owners’ expectations, and the anticipated profits fail to materialize. The design professional should be wary of the owner with unrealistic expectations. We see numerous example of an owner who requests change after change but then is surprised that the project is delayed or more expensive as a result. The design professional with a difficult owner needs to develop strategies to keep the owner informed of changes in overall cost or scope as a result of an owner-requested change.
Expanded Duty of Care
As noted in the Contract section of this website, occasionally an owner will seek to modify the standard of care to be provided (e.g., “best practices” or “to the highest standard.”) If a design contract calls for “best practices” or the “highest standard of care” then the design professional will not be judged by her peers but by some unknown, and perhaps unreachable, standard of performance. This trap should be avoided by resisting an owner’s efforts to insert language into the design contract that calls for any enhanced duty of care.
Restricted Contract Administration
It may better to eliminate CA from a design contract entirely than agree to provide restricted site observation. The most appropriate description of the design professional’s duty to conduct site visits comes from the AIA A-201 (§ 4.2.2) which provides that the design professional will visit the project at appropriate intervals to the stage of the Contractor’s operations. Too often design contracts specify a both a particular number of site visits (beyond which the site visit is an additional service) and/or a particular interval (e.g., monthly). Some owner attorneys will argue that it is malpractice for an architect to even agree to a limited number of visits at specified intervals because the architect’s standard of care cannot be discharged unless she is free to determine when and how often she will visit the project. The fact that it was the owner that insisted on these limitations in the first place will often be lost in the ensuing litigation (e.g., “you shouldn’t have let me agree to it if it wasn’t sufficient.”) Efforts by the owner to place these kinds of limits on the designer’s site visits should be resisted.
One-sided Termination Provisions
Design contracts sometimes allow the owner to terminate the designer’s services for convenience on short notice, but fail to allowing the designer to stop working even if he is not being paid. Owner and designer should have relatively equal rights to terminate the design contract.
Hidden Responsibility for Means and Methods
A design professional should avoid agreeing to do anything more than become generally familiar with the progress of the work through observing construction. Agreeing to inspect or supervise construction can lead to a responsibility for defective work and or the safety of construction workers.
Failing to Pass Indemnity Down
Many states require agreements to indemnify in construction contracts to be included in the contract if it is in writing. If an owner includes a written indemnity provision in the owner/architect contract then the architect may be liable for damages the owner has to pay others that are based on the work of the architect or its consultants. In turn, if the architect fails to include a written indemnity provision in its architect/consultant contracts, then the architect may be forced to pay the owner for its consultant’s mistakes. For more information, see the “Indemnity” tab under the “Disputed Work” section of this website.
Failure to Control Expectations—Lost Profit Claims
Owners of commercial projects who anticipate using their new buildings to create or expand a business will sometimes blame the design professional when some aspect of the completed structure does not conform to the owners’ expectations, and the anticipated profits fail to materialize. The design professional should be wary of the owner with unrealistic expectations. We see numerous example of an owner who requests change after change but then is surprised that the project is delayed or more expensive as a result. The design professional with a difficult owner needs to develop strategies to keep the owner informed of changes in overall cost or scope as a result of an owner-requested change.
