Tag Archives: design professional

DESIGN PROFESSIONAL NEEDS A LICENSE TO BE SUED FOR PROFESSIONAL NEGLIGENCE

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“With regard to claims for professional negligence, the Florida Supreme Court has explained that ‘where the negligent party is a professional, the law imposes a duty to perform the requested services in accordance with the standard of care used by similar professionals in the community under similar circumstances.’” Sunset Beach Investments, LLC v. Kimley-Horn and Associates, 42 Fla. L. Weekly D130a (Fla. 4th DCA 2017) quoting Moransais v. Heathman, 744 So.2d 973, 975-76 (Fla. 1999).

 

When it comes to professional negligence, two things are important:

1)  the person being sued is a professional under the law (person has special education, training, experience, and skill) and

2)   the standard of care for that professional (e.g, licensed, professional engineer).

  

In a recent case, an engineering intern—not, a licensed, professional engineer–was sued for professional negligence.   The Fourth District Court of Appeal held that an engineering intern is not a person that can be sued for professional negligence, unlike a licensed, professional engineer. Sunset Beach Investments, supra.

  

The Fourth District explained that an engineering intern, by way of example, is not a professional because an engineering intern does not maintain a license.  If the court treated an engineering intern as a professional than it would be walking down a slippery slope when it came to who is a professional and who is not.   Instead of walking down that slippery slope, the court stated: “At a minimum, in a profession where a license exists, the existence of a license is a valid barometer for determining whether a person is classified as a professional. “ Sunset Beach Investments, supra.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

 

 

 

A DESIGN PROFESSIONAL OR ARCHITECT’S COPYRIGHT INFRINGEMENT CLAIM…DON’T THINK SO…

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A design professional or architectural firm has an uphill battle proving a copyright infringement claim.   Why? Because it is hard…very hard…for a design firm to show that another’s design is substantially similar to their original copyrighted design to warrant a finding of copyright infringement.

 

This uphill burden has been reaffirmed by the Northern District of Florida in Home Design Services, Inc. v. Turner Heritage Homes, Inc., 2015 WL 1482301 (N.D.Fla. 2015).  In this case, a residential design was copyrighted. The design firm that owned the copyright for the residential design sued a homebuilder for copyright infringement alleging that the homebuilder built 165 custom homes based on the design firm’s copyrighted design.  The jury returned a jury verdict in favor of the design firm for copyright infringement; however, the trial court entered judgment for the homebuilder finding that the design firm failed to prove a copyright infringement claim.  That’s right—the jury returned a verdict finding copyright infringement and the trial court entered a judgment for the homebuilder notwithstanding the verdict.

 

A leading issue in this case was whether the design firm’s copyrighted design was an original design and whether there were differences between the copyrighted design and the homebuilder’s allegedly infringing design.  The reason being is that in order to prove a copyright infringement claim of an architectural design:

 

“For copyright infringement, a plaintiff must prove: (1) ownership of a valid copyright, and (2) copying of protectable elements. In order to establish ownership of a valid copyright, the plaintiff must prove, among other things, that the work is original.  Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. To establish copying, the plaintiff must show as a factual matter that the defendant copied the protected work, and, as a mixed question of law and fact, that the protected expression itself was copied. In the absence of direct proof of copying, a plaintiff may prove copying by demonstrating that the defendants had access to the copyrighted work and that the works are substantially similar. To show access, the plaintiff need not prove actual viewing and knowledge but simply a reasonable opportunity to view the work.  The test for substantial similarity for architectural works is whether a reasonable jury could find the competing designs substantially similar at the level of protected expression. [S]pacial depictions of rooms, doors, windows, walls, etc. are not protected. [O]nly the original, and thus protected arrangement and coordination of spaces, elements and other staple building components should be compared. Moreover, given the subtle distinction between protected and unprotected expression, the Eleventh Circuit has recognized that judges, rather than juries, are usually better equipped to resolve questions of infringement. The Eleventh Circuit has further instructed that copyright protection in a compilation is thin, and that modest dissimilarities are more significant than they may be in other types of art works.”

Home Design Services, supra, at *6.

 

Focusing on whether the design firm’s copyrighted design was substantially similar to the homebuilder’s home design, the trial court found dissimilarities between the designs including, but not limited to, the porches were different, fireplaces were in different locations, elevations were different, hallways had different dimensions and openings, toilets were positioned differently, the nooks had different windows, master bathrooms contained differences, etc. (you get the point…there were differences).  Although the design differences were slight when comparing architectural designs, the fact remained that there were dissimilarities to preclude a copyright infringement claim.  No matter how modest the dissimilarities truly were, that fact that there were dissimilarities precluded a finding for copyright infringement.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

THE INCLUSION OF LIMITATION OF LIABILITY PROVISIONS FOR DESIGN PROFESSIONALS

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Design professionals need to remember the benefit of newly enacted legislation effective July 2013 that authorizes a limitation of liability provision for design professionals in their individual capacity. Florida Statute s. 558.0035 authorizes a design professional to limit their personal liability if: (a) the professional’s company entered into the contract for professional services; (b) the contract does not name the professional as a party to the contract; (c) the contract provides in uppercase and at least 5 font points larger than the rest of the contract that an employee or agent of the professional’s company cannot be held individually liable in negligence, and (d) the professional’s company maintains professional liability insurance. See Fla. Stat. s. 558.0035 set forth below. Complying with this statute can limit a professional’s liability in an individual capacity for economic damages, although based on the language of the statute, it would not extend to personal injury or property damage not subject to the professional services contract.

 

When negotiating a contract for a design professional, it is good to include a limitation of liability provision to protect professionals working with the design professional company/ entity entering into the contract. I would include a provision identifying that it is specifically understood that employees or agents of the contracting party are not parties to the professional services contract. The reason being is many times professional services contracts will call out the specific professional(s) that is to act as the company’s representative or the professionals that will be performing the professional services. Additionally, I would include in uppercase and 5 font sizes larger than the balance of the text in the contract a provision to the effect: “PURSUANT TO FLORIDA STATUTE S. 558.0035, AN INDIVIDUAL EMPLOYEE OR AGENT OF_______ [CONTRACTING PARTY] MAY NOT BE HELD INDIVIDUALLY LIABLE IN NEGLIGENCE FOR ANY CLAIMS, DAMAGES, OR DISPUTES ARISING OUT OF AND SUBJECT TO THE CONTRACT.”

 

Although the statute provides that the limitation of liability provision does not apply to damages to personal injuries or property not subject to the contract, it does not define the circumstances in which this would apply. For instance, if a structure is deficiently engineered and a portion falls down or collapses and damages persons or property other than the structure itself, it would seem that the limitation of liability provision would not extend to these types of damages since the other property and personal injuries were not subject to the professional services contract. On the other hand, there could be the argument that these damages are subject to the professional services contract because they arose out of errors and omissions in the performance of professional service contractual obligations.

 

When negotiating a contract for an owner, the key is to ensure that the design professional has sufficient professional liability insurance based on the requirements of the project (i.e., sufficient insurance limits and potentially tail / extended reporting period coverage). An owner willing to agree to the limitation of liability provision could put a disclaimer that reflects that should the contracting party not continue its professional liability insurance for “x” years after the project’s completion with a date retroactive to the contract date or purchase tail coverage for the same period of time, the limitation of liability provision shall be deemed null and void.

 

Florida Statute s. 558.0035

(1) A design professional employed by a business entity or an agent of the business entity is not individually liable for damages resulting from negligence occurring within the course and scope of a professional services contract if:
(a) The contract is made between the business entity and a claimant or with another entity for the provision of professional services to the claimant;
(b) The contract does not name as a party to the contract the individual employee or agent who will perform the professional services;
(c) The contract includes a prominent statement, in uppercase font that is at least 5 point sizes larger than the rest of the text, that, pursuant to this section, an individual employee or agent may not be held individually liable for negligence;
(d) The business entity maintains any professional liability insurance required under the contract; and
(e) Any damages are solely economic in nature and the damages do not extend to personal injuries or property not subject to the contract.
(2) As used in this section, the term “business entity” means any corporation, limited liability company, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self-employed individual, or trust, whether fictitiously named or not, doing business in this state.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

A GENERAL CONTRACTOR NEEDS TO UNDERSTAND CERTAIN LEGAL DOCTRINES BEFORE SUING A STATE (INCLUDING AGENCY OR SUBDIVISION) AND DESIGN PROFESSIONAL THAT IT DID NOT HIRE

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The recent Florida district court case, Posen Construction, Inc. v. Lee County, et al., 2013 WL 375430 (M.D.Fla. 2013), ruling on various motions to dismiss, is an interesting case that discusses two important doctrines. In this case, a roadway contractor constructing a road project for Lee County sued Lee County and Lee County’s design professionals (hired by the County) for delays and additional costs it incurred in the performance of its work. This case, among other things, discusses a state’s (inclusive of a state agency or subdivision) sovereign immunity for claims for additional work (absent a change order) and the duty of care for purposes of a negligence claim that a design professional owes to a general contractor (when the general contractor did not hire the design professional).

 

The first doctrine is known as the Miorelli doctrine which refers to a state’s (or its agencies or subdivisions) soverign immunity for extra-contractual work claims that arise on a construction project. The Miorelli doctrine is based on the Florida Supreme Court case, County of Brevard v. Miorelli Engineering, Inc., 703 So.2d 1049 (1998). The Miorelli doctrine, as maintained by the Posen court, has evolved into the following doctrine: “A claim for damages predicated on work ‘totally outside the terms of the contract’ is barred by the doctrine of sovereign immunity [unless memorialized in a written executed change order], whereas damages caused by extra work done at the state’s behest and in furtherance of contractual covenants (express or implied) are potentially recoverable.” Posen Construction, supra at *3 citing Miorelli, 703 So.2d at 1051. In applying the Miorelli doctrine, the Posen court expressed:

 

“To be clear, if Posen’s [contractor] claim is predicated on work ‘totally outside the terms of the contract’ it will fail by application of the Miorelli decision. On the other hand, claims for damages caused by additional work performed in furtherance of either express or implied covenants of the written contract  fall within Florida’s implied waiver of sovereign immunity…”

 

If a contractor is suing a state (or a state agency or subdivision) for additional costs that are not memorialized in a written executed change order, it is important that the contractor is aware of the Miorelli doctrine in order to best craft arguments to potentially recover the additional costs. The reason being is that the contractor can almost be certain that the state will raise the Miorelli doctrine through the motion to dismiss and/or summary judgment stages to establish that the state has sovereign immunity for such claims and damages. The key is that the argument should center on the additional costs being covered by the expansive scope of work set forth in the contractor’s contract with the state versus constituting work that is materially different than what the contractor bargained for.

 

The second doctrine is known as the A.R. Moyer doctrine which refers to a design professional’s duty of care to a general contractor on a construction project (when there is no contractual privity between the contractor and design professional). The A.R. Moyer doctrine is based on the Florida Supreme Court case, A.R. Moyer v. Graham, 285 So.2d 397 (Fla. 1973). In A.R. Moyer, a contractor sued a supervising architect in negligence. The Florida Supreme Court in A.R. Moyer maintained:

 

“Each of the [following] conditions would present a cause of action [in negligence against a supervising architect or engineer]: (a) supervising architect or engineer is negligent is preparation of plans and specifications; (b) the supervising architect or engineer negligently causes delays in preparation of corrected plans and specifications; (c) the supervising architect or engineer negligently prepared and negligently supervised corrected plans and specifications; (d) the supervising architect or engineer failed to award an architect’s certificate of completion of the project; (e) the architect or engineer was negligent in exercise of supervision and control of contractor…” Posen Construction, supra, citing A.R. Moyer, 285 So.2d at 402.

 

Stated differently, the design professional must have a supervisory role or element of control (also referred to as a close nexus to the contractor) in order for the design professional to owe a legal duty to the contractor. The Posen court clarified that “supervising architects and engineers are liable for the foreseeable injuries to general contractors proximately caused by their negligent conduct even where there is an absence of contractual privity, whereas nonsupervising engineers and architects—irrespective of when they are hired—will not be.” Posen Construction, supra, at *12.

 

If a contractor is suing a design professional in negligence, it is important for the contractor to understand the A.R. Moyer doctrine and that the required legal element of “duty” is based on the supervisory status of the architect or engineer. This will allow the contractor to best phrase legal theories knowing that the design professional will raise this doctrine at the motion to dismiss and/or motion for summary judgment stages. However, absent this supervisory status or close nexus between the design professional and general contractor, the design professional will not be deemed to owe a legal duty to the contractor.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

A CONSULTING ENGINEER / ARCHITECT’S PROTECTION FROM A NEGLIGENCE CLAIM BY A CONTRACTOR

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The case of Recreational Design & Construction, Inc. v. Wiss, Janney Elstner & Associates, Inc., 2011 WL 5117163 (S.D.Fla. 2011), is a recent case discussing whether an independent engineering firm hired as a consultant by an owner can be liable to the general contractor for professional negligence under Florida law.  In this case, the City of North Miami Beach (“City”) hired a contractor to perform all design and construction services for a water slide project (“Contractor”).  The City also hired a separate engineering firm to evaluate and perform inspections of the contractor’s work (“Engineer”).  The engineering firm hired another engineering firm as a subconsultant to perform the engineering inspections (“Subconsultant”).

 

 

The Subconsultant issued a report to the Engineer that was provided to the City explaining that the water slide the Contractor designed and started to construct was structurally unsafe.  The report recommended repairs to be implemented on the slide.  The City rejected the Contractor’s work based on the Subconsultant’s recommendation and required the Contractor to implement the repairs before completing the work.

 

 

The Contractor, instead of suing the City, sued the Engineer and Subconsultant for professional negligence (also known as professional malpractice) to recover its costs in reconstructing the slide and implementing the repairs recommended to the City.  Both the Engineer and Subconsultant moved to dismiss the Contractor’s complaint arguing that they did not owe a duty of care to the Contractor; therefore, they could not be liable in negligence to the Contractor under the law.  The Southern District of Florida agreed with the Engineer and Subconsultant and dismissed the Contractor’s complaint with prejudice.

 

 

In order to be liable for professional negligence, a plaintiff must prove the following elements against the defendant-professional: 1) the defendant owed a duty of care to the plaintiff; 2) the defendant breached its duty of care; and 3) the breach of the duty of care proximately caused damages to the plaintiff.  See Recreational Design & Construction, 2011 WL at *2 citing Moransis v. Heathman, 744 So.2d 973, 975 n.3 (Fla. 1999).   The element of duty, however, is a question of law in Florida and must be determined by the court before a negligence case proceeds to the jury or trier of fact.  See Wallace v. Dean, 3 So.3d 1035, 1046 (Fla. 2009).

 

The Contractor relied on the Florida Supreme Court’s ruling in A.R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla. 1973), in arguing that the Engineer and Subconsultant owed the Contractor a duty to perform its work and issue recommendations to the City with reasonable care and due diligence.  In A.R. Moyer, the Florida Supreme Court held that a general contractor can maintain a cause of action against a supervising architect for the architect’s negligent performance of a contractual duty (even though the contractor has no contractual privity with the architect).  Particularly, the Florida Supreme Court found that the following circumstances would present a professional negligence cause of action by the contractor against a supervising architect or engineer:

 

“(a) supervising architect or engineer is negligent in preparation of plans and specifications; (b) the supervising architect or engineer negligently causes delays in preparation of corrected plans and specifications; (c) the supervising architect or engineer negligently prepared and negligently supervised corrected plans and specifications; (d) the supervising architect or engineer negligently failed to award an architect’s certificate upon completion of the project; (e) the architect or engineer was negligent in exercise of supervision and control of contractor.”  A.R. Moyer, 285 So.2d at 402.

 

 

Of importance, the “professional defendant [in A.R. Moyer] was an architect whose responsibilities on the relevant project were to prepare the designs and plans for the project, approve the overall structural components or framework for the project, and supervise the general contractor’s execution of those plans, including having the authority to halt the contractor’s work.”   Recreational Design & Construction, 2011 WL at *4.   In other words, A.R. Moyer dealt with more of a traditional architect or engineer that, among other things, served as the architect / engineer-of-record for the project and had detailed contract administration services that enabled them to make decisions that could effect the contractor, which is why the Court described the professional as a supervisory architect or engineer.

 

 

But, in Recreational Design & Construction, the Engineer and Subconsultant, were really nothing more than a consultant providing expert-related services issuing recommendations, advice, or suggestions to the City in which the City could accept or reject.  The Engineer and Subconsultant did not serve as the engineer-of-record.  They did not design the plans for the City’s project. They did not issue specifications for the project.  They were not performing supervision to ensure that the Contractor’s construction complied with their design (since they were not the designer).  And, they did not have authority to halt the construction of the project or issue corrective details directly to the Contractor.  Instead, as previously mentioned, their services were truly within the realm of consulting services in which it was up to the City to determine how it wanted to utilize any suggestions, advice, or recommendations.   For these reasons, and because the role of the Engineer and Subconsultant in this case was substantially different than the role of the architect in A.R. Moyer, the Southern District held they did not owe a duty of care to the Contractor.  See also McElvy, Jennewein, Stefany, Howard, Inc. v. Arlington, Elec., Inc., 582 So.2d 47 (Fla. 2d DCA 1991) (finding that architect did not owe duty to subcontractor because architect was required to issue advice to owner regarding interpretation of architect’s design, but it was the owner responsible for making the ultimate decision based on the advice of the architect).

 

 

An architect or engineer that is serving as the architect / engineer-of-record for a construction project may want to implement certain language in their contract with the owner that while it will render certain advise, recommendations, or suggestions to the owner regarding its design and specifications and interpretations thereof, it is the owner that is required to render the ultimate decision regarding the advice, suggestions, and recommendations.  This way, if the contractor does pursue a professional negligence claim against them, they can argue they were not a supervisory architect or engineer and should not be deemed to owe a duty to the contractor because it was the owner that made the ultimate decision that affected the contractor.

 

 

Also, owners on construction projects sometimes hire other consultants or experts to assist in the construction of their project.  For instance, sometimes owners hire a building envelope consultant or a glazing consultant, etc.  These consultants sometimes worry about the contractor asserting a negligence claim against them based on their advice, suggestions, and recommendations made to the owner.  These consultants, however, should be able to rely on the arguments in Recreational Design & Construction to support they do not owe a duty to the contractor.  These consultants can also employ the same contractual language suggestions above so that their contract specifically expresses that it is the owner that is required to act on the advice, suggestions, and recommendations of the consultant so that it remains understood that the owner, and not the consultant, has ultimate control over the contractor’s work.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

CLARIFYING TERMS OF A RELEASE AND STANDARD OF CARE WHEN SUING A DESIGN PROFESSIONAL — BOTH TOUCHED UPON IN NEW FLORIDA CASE

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The recent decision of Alderman v. BCI Engineers & Scientists, Inc., 2011 WL 3862094 (2d DCA 2011), implicitly underscores two important concepts.  First, it underscores the importance of clarifying releases of claims applicable to construction issues, especially if a party wants to be protected from the release down the road.  Second, it underscores what is required to hold a design professional—engineer or architect—liable for breach of contract.

 

 

Both of these concepts are important for different reasons.

 

 

A release is important because if a party (or non-party as Is the case in Alderman) wants to be truly protected by the language of a release, the release should be unambiguous.  Any ambiguity will simply foster a potential argument that the release does not protect the party being sued or the types of claims being asserted.

 

 

It is important to understand the legal burden / standard associated with finding a design professional liable for breach of contract.  Not understanding this burden could prevent otherwise colorable claims for design errors or omissions, etc. against a design professional from properly being asserted.

 

 

In Alderman, an owner’s residence sustained settlement damage  believed to have been the result of a sinkhole.  The owner retained an engineer to investigate the sinkhole and corresponding settlement damage.  The owner and the engineer entered into a contract for the engineer to perform a geotechnical investigation which included an inspection, testing, and the preparation of a report with the findings and appropriate repair protocol.  In the report, the engineer recommended for a contractor to perform subsurface compacting grouting to stabilize the residence against further settlement.  The report also recommended for the engineer to be retained during the remediation work to provide monitoring and oversight.

 

 

Based on the report, the owner hired a foundation contractor to perform the subsurface compaction grouting. The engineer’s budget for the monitoring and oversight during the repair work was approved by the owner’s homeowner’s insurer.  (The owner, like most owners with a homeowner’s insurance policy, was looking to recoup covered costs under the policy associated with the settlement damage/problem resulting from the sinkhole.)

 

 

During the grouting, septic tanks ruptured causing sewage to seep into the residence.  Additionally, once this grouting work was fully completed, the residence continued to experience settlement damage.

 

 

The owner settled the sinkhole claim with his property insurer and gave the insurer a release.

 

 

The owner, however, contended that the subsurface compaction grouting recommended by the engineer was not a suitable recommendation (and/or was not monitored correctly) since the work did not remedy the settlement problem.  The owner sued the engineer for negligence arguing that the engineer was negligent in the supervision and monitoring of the remediation work.  It also sued the engineer for breach of contract arguing that the engineer failed to recommend a suitable remediation protocol.   The trial court granted summary judgment in favor of the engineer as to the owner’s negligence and breach of contract claims and the owner appealed to the Second District Court of Appeals.

 

 

A. The Owner’s Negligence Claim Against the Engineer

 

 

The trial court granted summary judgment in favor of the engineer finding that the release the owner gave to his property insurer to settle the sinkhole claim was broad enough to cover the engineer.  The release the owner gave to his property insurer included the following language:

 

 

“1. . . . By executing this General Release, Releasor . . . does hereby fully and completely release and discharge STATE FARM FLORIDA INSURANCE COMPANY (and all parent and subsidiary companies affiliated with it in anyway [sic]), hereinafter referred to collectively as “Releasees,” from any and all current or future claims, rights[,] and actions whatsoever, whether ripe or contingent, arising in relation to the filing of insurance claims by Releasor relative to or associated with insurance coverage for the [Alderman residence].

 

2. NOW THEREFORE in consideration of the payment [of the settlement amount], the receipt and sufficiency of which is hereby acknowledged, the Releasor agrees as follows:

(a) The Releasor does hereby . . . release, discharge, acquit, and indemnify Releasees, and their officers, directors, shareholders, executors, administrators, insurers, insureds, suppliers, distributors, attorneys, contractors, subcontractors, successors, privies, assigns, associations, parents, subsidiaries, holding companies, or partnerships of and from any and all claims . . . whatsoever including but not limited to any coverage dispute, complaints regarding claims handling or bad faith, or the termination of insurance of the Property by the Releasees which the Releasor now has or which may hereafter accrue on account of or in any way growing out of any and all known or unknown, foreseen and unforeseen, property damage and any consequences of the activities listed in paragraph 1 above. The parties agree that the terms of this Release do not impact any rights of either Releasor or Releasees from seeking damages (either tort, contract, or subrogation) against unrelated entities.”

Alderman, 2011 WL at *3.

 

 

The engineer further argued (and the trial court agreed) that the insurer approved the engineer’s budget for the monitoring and oversight services performed during the subsurface compaction grouting.

 

However, the Second District Court disagreed  for two reasons.

 

 

First, the Second District expressed that the contract was between the owner and the engineer, not between the insurer and the engineer.  The court also expressed that the fact that the insurer may have approved the engineer’s budget and may have paid the engineer from insurance proceeds (that arose between the insurance policy between the insurer and the owner), and not because of any separate contract between the insurer and engineer.  The court gave an appropriate analogy: “Here, the circumstances are comparable to an automobile insurer’s approval of a body shop’s estimate for the costs of repairs to an insured’s automobile. Despite the insurer’s approval of the repair estimate, the contract for the repairs remains between the automobile owner and the body shop, not between the body shop and the insurer.” Alderman, 2011 WL at *4.

 

 

Second, the Second District expressed that the release NEVER referenced or named the engineer. “Thus for the instrument to be effective to release BCI [engineer] or other parties not specifically named, such intent must be clearly expressed.” Alderman, 2011 WL at *5.

 

 

The Second District’s ruling makes sense in that it was the owner, the insured under the property insurance policy, that negotiated and executed the release with his insurer.  It would seem inequitable for the engineer to get the benefit of the release unless of course it was specifically involved in the negotiation of the release and was an engineer that the insurer specifically authorized the owner to retain (which are unknown from the facts recited in the case).  If, however, the owner hired the engineer and the engineer simply worked with the insurer to ensure that payments would be covered by insurance proceeds, it would seem inequitable for the engineer to reap the benefits of a release that certainly did not involve it.

 

 

B. The Owner’s Breach of Contract Claim Against the Engineer

 

The trial court also granted summary judgment for the engineer on the owner’s breach of contract claim finding that the owner failed to establish that the engineer violated any standard of care based on the investigation of the problem and recommendation of the subsurface compaction grouting. The owner relied on deposition testimony of his trial expert to support that the engineer violated its standard of care and therefore breached its agreement with the owner.

 

 

The Second District maintained: “Under its contract to render professional engineering services on behalf of Mr. Alderman [owner], BCI [engineer] was obligated ‘to perform such services in accordance with the standard of care used by similar professionals in the community under similar circumstances.’” Alderman, 2011 WL at *6 quoting Lochrane Eng’g, Inc. v. Willingham Realgrowth Inv. Fund, Ltd., 552 So. 2d 228, 232 (Fla. 5th DCA 1989).  The Second District found that a question of fact remained as to whether the engineer met or breached the required standard of care.

 

The Second District’s ruling makes sense because whether a design professional specifically breached a standard of care should be a question of fact, especially if there is a testifying expert that will render expert opinions supporting the breach.  The standard of care is an an important term when determining the liability of an architect or engineer for design errors, omissions, recommendations, etc.  If an opposing party has an expert that will say the architect or engineer breached their standard of care based on a design error, omission, recommendation, etc., then a factual issue exists.

 

 

For more information on a design professional’s standard of care, please see:

https://floridaconstru.wpengine.com/a-consulting-engineer-architects-protection-from-a-negligence-claim-against-a-contractor/

and

https://floridaconstru.wpengine.com/a-general-contractor-needs-to-understand-certain-legal-doctrines-before-suing-a-state-including-agency-or-subdivision-and-design-professional-that-it-did-not-hire/

 

For more information on the scope of releases, please see:

https://floridaconstru.wpengine.com/the-scope-of-a-release-in-a-settlement-and-contractual-indemnification/

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.