Professional liability insurance for architects and engineers.

Contracts

By on Dec 4, 2017 in All Topics, Contracts, Newsletters |

By Eric O. Pempus, FAIA, Esq., NCARB, LEED GA Consider this situation: You have been awarded a commission to design a building for a new client. You propose using the AIA’s Standard Form of Agreement B101 as your owner-architect contract, but the client insists you sign a version of the B101 “with just a few minor changes.” You notice that one of those changes requires you to “comply with all laws, rules, and regulations,” rather than, as the B101 states, to “review laws, codes, and regulations applicable to the Architect’s services.” That changed language should be setting off alarm bells for you. One of the most overlooked yet dangerous pitfalls for an architect is a provision in a legal document requiring a design professional to “comply with all laws, rules, and regulations” or similar language. However, such a provision can create a trap for an unsuspecting architect. The problems with “complying with all codes” A large number of laws apply to the design and construction of buildings. These laws govern: Life safety (national model building codes as well as local variations) Fire protection Accessibility (ADA as well as local requirements) Zoning Occupant safety (e.g., OSHA) Sustainable design Wetlands preservation Public health Historic preservations and Employment (federal, state, and local) It may in fact be impossible to comply with all laws that apply to a particular project because those laws may have contradictory provisions. To illustrate this point, the Advisory Legal Opinion – AGO 93-40 from the Florida Office of the Attorney General, on the subject of “conflict between building code & firesafety code,” states that when the provisions of the applicable minimum building code and the applicable minimum firesafety code conflict … the local building code enforcement official and the local fire code enforcement official [shall] resolve the conflict by agreement in favor of the requirement of the code which provides the greatest degree of lifesafety or alternatives which would provide an equivalent degree of lifesafety and an equivalent method of construction. Similarly, the General Services Administration’s (GSA) Codes and Standards states that [s]hould a conflict exist between GSA requirements and the GSA adopted nationally recognized codes, the GSA requirement shall prevail. All code conflicts shall be brought to...

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By on Oct 3, 2017 in All Topics, Contracts, Newsletters |

By Tom Owens A good risk management strategy for design professionals requires proper contracting of all firms engaged in the project. When you are the prime design consultant to the owner (client) you assume responsibility for the performance of the consultants contracted to you. Agreements with your consultants can be just as important as the agreement with your client, as claims often evolve from the performance of your consultants. And, similar to the agreements with your client, it is important that you recognize that your consultant relationships are as important as the contracts between your firms. When you get in a tough spot with the client, a positive relationship with your consultants can mean the difference between a team that is working to resolve an issue collectively and the disaster of “every firm for itself.” Prompt and thorough response to a project circumstance based on a relationship of cooperation and collaboration amongst the design team can turn a potentially significant problem into one that is more manageable, mitigating risk to the client relationship as well the cost of resolution of the issue. The most important clause in a consulting agreement passes through the obligations of your prime agreement to your consultant for the scope of services allocated to that consultant. This clause defines the consultant’s scope and binds the consultant to the provisions of the prime agreement consistent with the terms and conditions to which you are subject. There are several ways to accomplish this and I must clarify that this advice has not been tailored for the particular state in which you work. You should consult with an attorney licensed in your state and experienced in design-construction matters to adjust this clause as appropriate. With that legal disclaimer in place, the following clause should work almost everywhere: • Designer has an agreement with Client dated ______, entitled ____ (“Prime Agreement”), which is attached and incorporated as part of the agreement between Designer and Consultant (“Contract”). If this Contract includes Consultant’s proposal, it is included for adding detail to Consultant’s scope of services but does not modify the scope required by the Prime Agreement for Consultant’s services. All other terms in the Consultant’s proposal are not a part of...

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By on Aug 1, 2017 in All Topics, Contracts, Newsletters |

© 2017, by J. Kent Holland Introduction The American Institute of Architects (AIA), on April 27, issued the 2017 update to the AIA B101™ “Standard Form of Agreement Between Owner and Architect.”  There are a number of tweaks, refinements, improvements – and even a few significant changes.  Eighteen months from the date AIA published the 2017 document, the license to use the current 2007 edition will terminate.  This is not a major revision.  But from a design professional’s point of view, there are a number of improvements that will make it worthwhile to begin using this new form sooner rather than later. An easy way to quickly see the changes is to download from the AIA website the “2007/2017 Comparative,” which is a redline showing what has been added and what has been deleted. In this article, we highlight and explain some of the key changes, including: Architect represents that it is either licensed in the jurisdiction where the project is located, or in the alternative, “shall cause its services to be performed by appropriately licensed design professionals.”   But see the discussion below as to whether an unlicensed firm can meet state licensing requirements by having licensed individuals perform the professional services (§2.1). The insurance section of the agreement has been beefed up to include a more detailed description of insurance in the B101, and there is a new detailed insurance and bond exhibit that can be attached to the owner/contractor agreements such as A201 (Document A102 – 2017 Exhibit A). And insurance is required to be maintained by the Architect for a minimum of one year following Substantial Completion (§2.5); New sustainable project exhibit (AIA E 204™-2017). Sustainable project services can be added as a Supplemental Service under Section 4.1. This exhibit eliminates the need to have a sustainable project version of each contract document. The requirement that the architect discuss with the owner the feasibility of incorporating environmentally responsible design approaches has been deleted basic Agreement from (§3.2.3), but a requirement that the architect consider sustainable design alternatives is added (§3.2.5.1); Reviewing contractor requests for substitutions will be paid for as an additional service (§3.5.2.3 and 3.5.3.3); Additional Services identified at the time of agreement now are...

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By on Jun 29, 2016 in All Topics, Contracts, Newsletters |

By Mark E. Jackson, JCJ Insurance Agency It is extremely important for design firms to have a signed contract before providing professional services. A written contract provides an opportunity to set expectations and allows the parties to align themselves for a successful project. Working without a contract is like building without a blueprint. Contracts are very important for all projects; whether big or small, and whether you are working with a new client, long-term client, or sub-consultant. There are numerous advantages to having a signed contract. With conditions such as scope of services, payment provisions, indemnity obligations, standard of care, and limitation of liability, a contract provides a guide for how the project will proceed and outlines the responsibilities of each party. In the event of a disagreement or dispute, the contract is the first source to determine what each party agreed to do. If there is no contract, it can become a matter of “he said/she said” if a dispute arises. Despite the advantages of having a contract, there are times when a design firm provides services without one. For instance, an existing client has a small project and needs a quick response and no one thinks to get a signed contract. Even a small project can have claims. Regardless of the size of the project, you should have a signed contract. Some firms do not use a contract because they have a long-term relationship with the owner or subconsultant. Their opinion is that they have worked with the party for many years and have never had a dispute and, therefore, they do not need a contract. It is great to have strong, long-term relationships, but that does not guarantee there will not be a dispute on the next project. Contracts are designed to protect both parties, not just the design firm. For long-terms relationships, a fair and well-balanced contract should be easy to negotiate. Sometimes, a firm may begin work on the design services while still negotiating the contract. It is important to not forget about the unsigned contract. Negotiations need to continue and be finalized before the construction documents phase of the project is completed. You do not want to have the project complete and final...

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By on Feb 9, 2016 in All Topics, Claims, Contracts, Newsletters |

By Mark E. Jackson, JCJ Insurance Agency Most contracts between a design professional and their client or subconsultant contain an Indemnity clause. An Indemnity clause may include any, or all three, of the following obligations: (I) indemnify; (II) hold harmless; and (III) duty to defend. “Indemnify” means to reimburse your client following a claim. “Hold Harmless” may have several meanings; however, it is most often understood to protect the client against harm from suits by a third party or yourself. “Duty to Defend” means to pay the client’s legal expenses as the client defends itself against a third party claim. We recommend that a duty to defend clause be removed from a contract. If you agree to “defend” your client, you may incur your client’s legal expenses as the client defends itself against a third party claim. Attorney’s fees and costs accrue from the first day a claim is made against them. In essence, the client can hire an attorney of their choice and send you the monthly invoice. Your obligation to pay these defense costs is based on your contractual commitment, not common law. Most likely, your professional liability policy’s contractual liability exclusion will not provide coverage for your client’s defense costs, leaving your firm to pay for the client’s legal fees. Professional liability insurance covers claims caused by the design professional’s negligence. Your negligence must be determined before the policy will cover costs to defend other parties. A court case in California illustrates the importance of not agreeing to defend your client. In UDC-Universal Development, L.P. v. CH2M Hill, a condominium homeowners’ association brought suit against UDC, the developer. UDC then cross-complained against its design professional, CH2M Hill, based on an indemnity provision in their contract. The UDC jury returned with a finding of no negligence and no breach of contract by CH2M Hill. Therefore, CH2M Hill had no duty to indemnify UDC. However, the court ruled that CH2M Hill still had a duty to defend UDC and pay UDC’s defense costs in the suit brought by the condo association. The language of the indemnity provision in CH2M Hill’s contract explicitly called for CH2M Hill to defend UDC from “any claim or demand”. Therefore, CH2M Hill was...

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By on May 29, 2015 in All Topics, Contracts, Newsletters |

By Bo Sutton, Florida Board Certified Construction Attorney and Partner with Railey Harding + Allen | PA You are most likely familiar with the term “Statute of Limitations” and may even know it is four years long. There is more to it than that. In Florida we have a “Statute of Limitations” and a “Statute of Repose”. These two different but similar concepts provide deadlines by which a construction-based lawsuit must be filed. The Statute of Limitations imposes a four year deadline to file a lawsuit, and is found in §95.11(3)(c), Fla. Stat. The Statute of Limitations usually involves “patent” claims related to design, planning, or construction of an improvement to real property. The term “patent” generally means easily recognizable, obvious or should have been discovered with the exercise of due diligence. The four year deadline to file suit begins to run on the last of the following four triggers to occur: 1. Actual possession by the owner. 2. The date of the issuance of a certificate of occupancy 3. The date of abandonment of construction, if not completed 4. The date of completion or termination of the contract between the engineer(s), architect, and/or prime contractor. The Statute of Repose is a ten year window in which to file a lawsuit, and is also found in §95.11(3)(c), Fla. Stat. The Statute of Repose usually involves “latent” (or hidden) claims related to design, planning, or construction of an improvement to real property. The term “latent” generally means not yet developed or manifest; hidden; or concealed from discovery. The ten year deadline also begins to run on the last of same four triggers to occur as the Statute of Limitations. Different than the Statute of Limitations, the Statute of Repose is often referred to as the “death knell” of claims. It quite literally cuts off someone’s right to file a construction-related lawsuit, no matter what, even if the claim has not accrued yet, i.e. been discovered. Whereas, the Statute of Limitations requires a claim be asserted within four years of its discovery. Should the Statute of Repose expire before the Statute of Limitations, the Statute of Repose trumps, and the lawsuit is forever barred. You may ask, “what if one of...

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