Design Professional Agreements – Who Are You Liable For?

Design professionals occupy a unique position in the construction litigation world. They are commonly intertwined in complex project issues because they are professionals who owe a broad duty to many and because they are the drafters of the design who provide services during construction when the design comes to life. In addition to being exposed to liability for observed construction errors, design professionals are often sued for the negligence of their professional consultants. For example, an owner can sue its architect not only for architectural design issues, but for design errors of the architect’s structural design consultant.

The architect’s knee-jerk reaction may be “how can I be responsible for the structural design when I am not a structural engineer?”

Unfair as it may sound, at least one federal court in the Middle District of Florida ruled this way when applying Florida law. In the 2010 case Lillibridge Health Care Services, Inc. v. Hunton Brady Architects, P.A., et al., the Court found that an owner can successfully pursue a breach of contract claim against the architect for the negligent acts committed by the architect’s engineering consultant.[i]

The architect in Lillibridge separately contracted with an engineer for the engineering design.[ii] The owner discovered code violations and other errors in the engineering plans. The owner then sued both the architect and the professional engineer for breach of contract and professional negligence due to the engineering issues. However, the Court found that the owner could only pursue its breach of contract claim against the architect because of the architect’s contractual obligation to provide all of the drawings including architectural, structural, electrical, mechanical and plumbing drawings.[iii]

The Lillibridge Court ruled that the architect was not personally at fault as the engineer committed the errors and that the architect was “entitled to rely on the expertise” of a professional engineer.[iv] Despite this acknowledgement, the Court still found that the architect breached its contract because the architect “obligated itself contractually to provide architectural and engineering services, and its duties as to engineering arise from the contract.”[v] The architect was found to be directly and financially responsible to the owner for the engineering errors, and could only pursue the engineer through an indemnification claim.

Lillibridge has dispelled the myth that design professionals are only responsible for their design. Therefore, design professionals should be mindful of the legal effect of contractual relationships they enter into with design consultants. At the very least, design professionals should ensure that the provisions within their subcontracts are clear, concise and legally appropriate to provide the broadest protections possible. In addition, design professionals should always ensure that their consultants maintain appropriate insurance coverage. Without these protections, the design professionals could be left holding the bag for errors committed by their consultants.

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[i] See generally Lillibridge Health Care Services, Inc. v. Hunton Brady Architects, P.A., 2010 WL 3788859, Case No.: 6:08-cv-1028-Orl-28KRS (M.D. Fla. Sept. 24, 2010).

[ii] Id.

[iii] Id. at *13. The Court dismissed the owner’s negligence claims against the engineer because the errors involved the litigation arose from “obligations imposed by the contracts and not from any other source.” Id. at *15.

[iv] Id. at *16.

[v] Id. at *19.

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