NEGLIGENT INSPECTION CLAIM AGAINST SUPERVISING DESIGN PROFESSIONAL / CONSULTANT

Posted on July 2, 2023July 2, 2023 by David Adelstein

Can a negligence argument be created against consulting design professionals or entities that are involved in the inspection of a trade’s work? The recent opinion in Bautech USA, Inc. v. Resolve Equipment, Inc., 2023 WL 4186395 (S.D.Fla. 2023) contains an interesting fact pattern that touches upon this issue. While the case dealt with a motion to dismiss, it contains a number of issues that may be discussed in follow-up postings.

Here, a prime contractor was hired by Broward County, Florida to install offshore reef mitigation units. The contractor entered into a subcontract with a concrete fabricator to fabricate the reef mitigation units. The contractor also separately hired consultants to inspect the units. The contractor and its consultants rejected the units even after the fabricator implemented design revisions. The fabricator was then terminated and not paid for contract work plus revisions it implemented to finished units. The fabricator sued the contractor and the contractor’s consultants for non-payment under many (ten) different theories of liability claiming it was damaged to the tune of millions of dollars.

In one claim, the fabricator asserted the consultants along with the contractor’s parent entity (that had involvement in the project) were negligent in their inspection of the fabricated units. The contractor and consultants moved to dismiss the negligent inspection claim under the independent tort doctrine and because they argued they did not owe a duty of care to support a negligence claim. The trial court denied this argument. The grounds in which the trial court denied these arguments are important because these grounds create strategic considerations when asserting a negligent claim for economic damages under a negligent inspection theory or negligence theory that the supervising consultants breached their duty of care.

A. Independent Tort Doctrine

With respect to the argument the independent tort doctrine barred the negligent inspection claim, the trial court denied this argument because there wasn’t a contract between the parties, expressing:

To start, the independent tort doctrine does not bar [the fabricator’s] negligence claim against [contractor’s parent entity]. Under Florida law, “a breach of contract, alone, cannot constitute a cause of action in tort….It is only when the breach of contract is attended by some additional conductwhich amounts to an independent tort that such breach can constitute negligence.” To apply, “the [independent tort] doctrine requires contractualprivity between the parties.” Because [fabricator] does not allege that a contract exists between it and [the contractor’s parent entity], the independent tort doctrine is inapplicable and certainly does not bar a tort claim against this Defendant.

Bautech, USA, supra, at *4 (internal citations omitted).

B. Duty of Care

With respect to the argument the Defendants (contractor’s parent entity and consultants) did not owe a duty of care, the trial court denied this argument expressing:

Next, [the fabricator] has identified a source for [the contractor’s parent’s entity] duty in tort — it is the same theory as for [the contractor’s consultants]. [Fabricator] alleges [contractor’s consultants], “each acting as agent/consultants for the County, owed [Plaintiff] a duty, as subcontractorand direct manufacturer of the [u]nits, to fairly, truthfully and properly report the status of the [p]roject to the County and others, in accordance withthe requisite standard of care required by the law.” [Fabricator] then alleges that because [contractor’s parent entity] “also provided personnel forthe inspection of the [u]nits[,]” it “owed the same duties” to [Fabricator] as [the contractor’s consultants].

Bautech, USA, supra, at *5 (internal citations omitted).

Defendants argued they owe no duty of care to inspect as such duty of care is ONLY owed by supervising design professionals, which none of them are, and this duty nevertheless does not extend to subcontractors: “Defendants argue that [fabricator] cannot state of a claim for negligent inspection because Florida appellate courts have declined to extend supervising professionals’ tort duty to subcontractors.” Bautech, USA, at *5. The trial court denied this argument because the precedent relied on by Defendants was a 1993 Florida Supreme Court case that has been overruled and the other case relied on was actually consistent with Florida’s Supreme Court’s leading 1973 opinion dealing with negligence claims against supervising design professionals, A.R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla. 1973), by considering numerous factors to determine whether such a duty of care by a supervising design professional exists.

In fact, to find a duty under Moyer, “the core issue is the extent to which the Defendant[s] supervised the Plaintiff or had sufficient control over [its] work to be able to exercise ‘economic life or death’ over the Plaintiff[,]” rather than a myopic focus on an individual’s job title. Here, the Amended Complaint indicates [Defendants] had supervisory control over [fabricator] because these Defendants “unfairly and in bad faith rejected completed [u]nits that conformed entirely to the Subcontract requirements, often for noncontractual and non-material issues.” Moreover, [fabricator] alleges the three Defendants were closely involved in the manufacturing process. This is minimally sufficient to plead that [Defendants] owed a duty to [fabricator] as supervising engineers.

Bautech, USA, supra, at *6 (internal citations omitted).

If asserting a negligent inspection claim or negligence claim against design professionals / consultants, keep the A.R. Moyer case (cited above) in mind. Also, keep this opinion in mind to plead and support the negligence claim demonstrating the duty of care that must exist to support such a negligence theory.

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.

GENERAL CONTRACTOR’S PROFESSIONAL MALPRACTICE / NEGLIGENCE CLAIM AGAINST DESIGN PROFESSIONAL

Posted on November 23, 2017November 23, 2017 by Edward Garber

A recent case supports a professional malpractice (negligence) claim by a general contractor against a design professional by reversing a trial court’s entry of summary judgment in favor of the design professional and finding a question of fact remained as to an architect’s role in the renovation of a public construction project. By the appellate court finding that a question of fact remained, the appellate court was finding that it was a triable issue, which is exactly what the general contractor wanted in this case. Getting this issue and the facts to the jury is the leverage the general contractor presumably wanted.

In Perez-Gurri Corp. v. Mcleod, 42 Fla. L. Weekly D2487c (Fla. 3d DCA 2017), a general contractor was hired by Miami to renovate a public project. Miami’s prime consultant subcontracted with an architectural firm to prepare the design documents for the renovation. The construction of the project was delayed and the general contractor filed suit against the architectural firm and other design professionals for professional negligence. The general contractor’s theory was that the design professional’s professional negligence delayed construction thereby causing the general contractor to incur increased costs (such as extended general conditions).

Architectural Role or Services

The architect claimed it played no role in the project. It is uncertain from the opinion whether the architect was claiming it literally played no role in the project or whether its position was that its role was so limited that a duty was not owed to the general contractor. Either way, the court was focused on the role the architect played in the renovation of the project and held a question of fact remained as to the services or role the architect played in the construction of the project. This is a pretty loose standard because it presumably allows the jury to determine (i) whether the architect rendered services or performed a role on the project and, if so, (ii) whether the role or services caused a delay in the construction of the project. The reason this standard appears loose is because there isn’t any discussion as to the type of professional services or role that the architect must play for a duty to be extended to the general contractor. (For there to be a professional negligence claim against the architect, the architect must be deemed to owe a duty to the general contractor with respect to the services or role it is performing.)

No-Damage-For-Delay Provision

This case also had a discussion regarding the no-damage-for-delay provision in the general contractor’s contract with the City. The trial court held that the architect was protected by this provision. (A no-damage-for-delay provision provides that a contractor’s exclusive remedy for delay is an extension of time, and it is not entitled to damages.) The appellate court reversed maintaining nothing in the no-damage-for-delay provision extended to the architect. And, the contract further provided there are no third party beneficiaries to the contract.

Considerations

This recent opinion leads to a few important points.

First, as a general contractor, you ideally do not want to extend a no-damage-for-delay provision to anyone but the owner that hires you. From an owner’s perspective, if you want the no-damage-for-delay provision to benefit your consultants, you want to ensure that protection is clearly articulated in the no-damage-for-delay provision with a carve-out in the provision that references there are no third party beneficiaries.

Second, no-damage-for-delay provisions are not absolute, meaning there are exceptions to a no-damage-for-delay provision. There was no discussion as to the applicability of those exceptions here. Perhaps that is because the facts did not warrant the applicability of an exception or there was no need to go into such discussion since the no-damage-for-delay provision did not extend to the architect, or any design professional for that matter. But, the applicability of an exception could also raise a question of fact.

Third, and mentioned above, there is no discussion as to the role or services the architect must perform for a duty to be extended to the general contractor. Thus, even if the architect played a role or performed services, the case does not go into detail as to whether such role or services would even rise up to a level of the architect owing a duty to the general contractor. This is important since the issue of duty is typically a question of law for the court to decide.

DESIGN PROFESSIONAL NEEDS A LICENSE TO BE SUED FOR PROFESSIONAL NEGLIGENCE

Posted on January 6, 2017November 8, 2024 by Edward Garber

“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. 4^th 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.