Architects Can Assist in Limiting Liability
Real Estate New York, June 2004, by John E. Osborn, Esq.
Over the past 25 years, architects have become increasing aware of and knowledgeable about professional liability issues. Accordingly, risk management has become a major focus of the design professional's practice.
The architect's focus on risk management and risk allocation at the beginning of a construction project can be attributed to an increased sophistication among professional liability insurance carriers and brokers as well as to a greater emphasis on continuing education. The architect is now less likely to agree to contract clauses that create exposure to inappropriate risk.
In reviewing situations that lead to claims against architects, it is clear that the architect's lack of action or failure to "be strategic" brings about a claim. With an increased focus on managing professional liability risk, the architect often insists on the inclusion of clauses that limit responsibility or liability and then refuses to step in when prompt action is required, leaving the owner and the project at peril.
Failure to Act Can Be Risky, Too
These examples illustrate where an architect's failure to act strategically can lead to a lawsuit:
- At the height of a middle school renovation, unanticipated asbestos was found. Under the architect's standard form contract disclaimer, the architect passed the issue back to the owner and disclaimed all further responsibility for the asbestos and its management - as the architect was allowed to do under the contract. The project was significantly delayed when the school district was required to hire an environmental consultant and bid the work out to an asbestos abatement contractor, and the school district was not able to occupy the school on schedule. It is clear that the schedule could have been maintained had the architect taken charge of the asbestos issue, recommended an environmental consultant and coordinated the solution.
- Poor construction sequencing and failure to provide temporary protection allowed water intrusion into the same middle school building. Repeated inquiries from the school district to the architect yielded no solution, and water continued to cascade into the building. As counsel to the school district, we brought in another architect who immediately analyzed and solved the problem.
Legal exposure increases, in particular, when an architect declines to take action because of liability concerns. When the traditional architect's role was one of trusted advisor to the owner, there was no question that the architect would step in and solve problems, no matter how complex the issue. When environmental issues became more prevalent in the 1980s, the architect began to delay taking action on these issues, and the architect was not implicated, contractually or factually. Rather, responsibility for asbestos, lead based paint, and ground water contamination from hazardous waste was assigned to specialized environmental consultants retained directly by the owner.
Who is Responsible for Mold Issues
The architect cannot excuse inaction when it comes to mold issues, i.e., issues that allow for water or moisture intrusion in buildings and that commonly involve building components such as the building envelope, roofing and vapor barriers. The construction industry and the design community recognize that solving mold issues is part of the architect's core competency. Although environmental consultants may have involvement in testing for mold or mapping out mold remediation steps, the primary troubleshooting role is with the architect.
Notably, although contractors' and property owners' insurers have added exclusions for mold into their insurance policies, the architect's professional liability insurance carriers have not excluded mold coverage. It is our experience that when the architect is engaged in solving mold issues, the issue is resolved effectively and without a claim. Conversely, when the architect - based on a disclaimer or a professed lack of expertise - declines to act, it is much more difficult and time consuming to solve the mold problem and much more likely to result in litigation.
When the architect is empowered to take a strategic role and "quarter-back" all major project troubleshooting, the owner's appreciation for the architect's skill and professionalism is enhanced and the client's interests are best protected. At the same time, when the architect is engaged in crafting a solution, it becomes less likely that a claim will be asserted against the architect.
John E. Osborn, Esq. is a partner of the New York City and Chappaqua, New York, construction contract law and environmental law firm of John E. Osborn P.C.