This is the seventh in a series of articles that will examine issues that can arise in the relationship between the architect in a construction project and the property owner, the contractor, subcontractors and others who may be involved.
In our series regarding the duties of architects, we move now to a general discussion of liability that may be imposed on an architect and some of the issues related to it. An architect is held to the same standard as any professional, such as an attorney or a physician. A professional is negligent when he fails to perform his duties consistent with the degree of care and competence generally expected of a reasonably skilled member of the profession providing similar services under similar circumstances. Acts of negligence arises out of architect’s acts or failure to act and he may be held liable for negligence if all the following have been found to exist:
a legal duty was owed to the complaining party;
there has been a failure to perform that duty;
the failure caused harm; and
damage occurred to the complaining party as a result.
Architects may face a negligence action by the owner, the contractor, or third parties. Depending on the claim and type of damages sought, privity of contract may be required to impose liability on architects.
As we have mentioned in earlier articles, negligence is not the only theory under which an architect may incur liability. Since there is always an agreement under which the architect is operating, an action can be brought for a violation of the terms of the agreement.
One must remember that a multi-count complaint can allege both negligence and contracts claims.
Applicable laws and/or contracts may obligate architects to maintain insurance, such as worker’s compensation, professional, general, and automotive policies. Typically, if an owner asks an architect to carry additional insurance and/or limits, the owner reimburses the architect for the corresponding costs. Professional liability insurance protects architects from negligence claims. Most professional liability policies require that the architect notify its professional liability carrier if a claim is made against the architect. The definition of a claim depends upon the architect’s policy but in general, to be considered a claim, the event must have three elements:
injury to a person or property that has been proved;
allegation that the architect was the one who caused the damage; and
demand for compensation.
Professional liability insurance coverage is very specific and “often excludes coverage of claims for a design professional’s general negligence in the performance of its duties”. Certain acts are covered, but others are not. If an architect execute services outside the policy’s covered services, he may not have coverage against claims arising out of these services. Intentional torts acts are usually not covered in these policies.Statutes of limitations and statutes of repose are two concepts that relate to when a claim can be filed. “Statutes of limitations establish the period of time within which a suit can be filed upon the discovery of the act or omission giving rise to the claim” and “statutes of repose establish an outer time limit beyond which the design professional cannot be held liable for design and construction defects after the completion or substantial completion of a project.
It should be obvious that an architect, just like any professional, must be very careful to know what his responsibilities are and to meet them. As discussed in earlier articles, the authority of the architect can sometimes be ambiguous and the careful practitioner will be careful to clarify such issues before they arise whenever possible.
Appreciation to:
Perkins & Will Research Journal, 2012, Vol 04.01, architectural Services During Construction, Duties and Liabilities, Helena O’Connor.
Architect - Authority And Powers - Architects, Delegate, Duty, and Supervising - JRank Articles http://law.jrank.org/pages/4420/Architect-Authority-Powers.html#ixzz5HqMSeCua