About eight years ago, Design Professionals, went on a campaign to provide themselves with immunity from all of their acts considering themselves something to Royal Dictators. Today, Design Professionals are still charging ahead and winning immunity for their actions. Senate Bill 496 of 2017 solidified their protection and frankly its a raw deal for public agencies.
Spelling it out
First, let’s look at the immunity. Design Professionals are immune from a duty to defend or a cost to defend under contract UNLESS the design professional was negligent, reckless or exhibited willful misconduct. Even if you don’t list it in the contract existing law incorporates these by reference. Now, under SB496 Design Professionals can’t be held responsible beyond their percentage of fault.
Let’s look at the loop of liability here. Most public agencies don’t have certified design professionals on staff. Otherwise, they would be designing their buildings and other structures as needed in-house. So, this gets outsourced to the true professionals. Once those plans are have been designed and passed back to the client for an initial review the baton is passed, and the loop continues. This is meant to protect the public agency. Intended to ensure that what the design pro submitted is truly good-to-go. That baton is passed to DSA (Department of State Architect) for review. And as most of you know, that department doesn’t do a darn thing until you “pay-the-fee.”
So DSA looks over the plans and stamps them approved. And the loop is closed. Ready to build!
More than one failure
Let’s face it. Architects mess up. Just like the rest of us do. Over the last 15 years, I have been involved in more than one architectural pickle for our clients. Theatre catwalks 40 feet in the air without guardrails. Fire alarms systems and HVAC ducting systems that seal shut doors of an entire building locking students and staff inside. Violations of ADA regulations with hallways too narrowly designed. The list goes on. And who’s to blame for these failures or are they oversights or are they negligence?
What happened to errors and ommissions? This reminds me of the execrable practice in the mortgage industry, title insurance. Title insurance is something you are forced to purchase if the Title company makes an error, commits an omission or otherwise fails to do their job correctly. If the Title company falls short of their duty, shouldn’t their errors and omission policy kick in? When an architect or other design professional makes a mistake, shouldn’t their policies kick in? They should, but well most times it never gets that far because it’s difficult to prove negligence.
Proving negligence is infinitely more difficult to determine than a simple error or omission in the process. And willful misconduct and outright criminal behavior are even more difficult to prove. And that is why the lobbyist working for Design Professionals moved to implement this immunity. Can you show that they didn’t look in the right places? Can you prove that their training fell short? That they didn’t discuss the plans? That they didn’t send it to DSA as they should have?
What to do next
Be smart with your risk management program. Your contracts can’t go after errors and omissions, but it can go after negligence, willful misconduct and other styles of recklessness. You need to spell out that the architectural plans must individually comply with all Title 24, Title 19, Title 8, Title 5 and go on down the list. Make sure that you add to the phrase “all federal, state and local laws” with the specifics.
The next thing you can do to ensure your projects go smoothly is to hire a third-party consultant to help provide content to the architect or design professional on a per question basis. Their failure to use it may add up to you being able to recoup partial funds when the you-know-what hits the fan.