Malpractice Suits Aim at Architects : Creative Lawyers Increasingly File Cases Citing Product Responsibility

A man commits suicide in jail. His estate claims the death occurred because the architect who designed the jail did not make it “suicide proof,” and sues him for “breach of duty.”

Sound far-fetched? It happened in Illinois. Though most cases are not so bizarre, 44% of all insured architectural firms experience some litigation every year. For architects--like doctors, lawyers and accountants--litigation has become a fact of life.

Win or lose, the cost of litigation in all its ramifications is staggering. Most insurance policies have hefty deductibles. Time that otherwise would be profitably devoted to other projects must be directed to the litigation. And as long as the case is pending, the firm is likely to lose potential commissions.

Even if it wins in court or the suit is dropped, the reputation of the firm may be permanently damaged since the public is more likely to remember the existence of a lawsuit than the fact that the architect was eventually exonerated.

The current high risk of a lawsuit compels most firms to purchase liability insurance that has become extremely expensive. Because of all the litigation activity, the premium charges have skyrocketed in the last 10 years, and they are now a major budget item in most architectural practices.

Such insurance also has become increasingly difficult to obtain. Two years ago 13 companies offered it; now only two do. The difficulty of getting the insurance plus its cost has led a number of architects to “go bare,” that is, not to have any insurance coverage at all.

Paul Janecki, senior vice president of Victor O. Schinerer Co. of Washington, D.C., one of the two insurance companies that still write liability insurance for architects (the other is Design Professional Insurance Co. of Monterey, Calif.), estimates that about 25% to 30% of registered architects in the United States do not carry liability insurance.

Why the flurry of lawsuits against architects? According to the insurance companies, most of it is due to an increasingly litigious public, more creative lawyers and unscrupulous clients who trump up a charge to take advantage of the fact that the architect has insurance.

No doubt, some client grievances are entirely legitimate. But, according to Janecki, more than three-quarters of the claims filed against firms carrying insurance are resolved without any payment from the insurance companies--clear evidence that many lawsuits are not justified.

Many of today’s lawsuits against architects--the more creative by today’s legal standards--would not even have been considered by lawyers 10 years ago and are next to impossible for even the savviest architect to protect against.

For example, some clients’ attorneys in California as well as in other states are now claiming in their lawsuits that architects provide a product --e.g., a building--not a service , design and supervision of construction of a building.

If the courts accept this premise, it means that the architect would be responsible for all problems with the structure--no matter whether the contractor, subcontractors, suppliers, laborers, etc. are at fault. So far, clients have been unsuccessful in such suits. If a decision is ever passed down on this point that favors the client, few architects will be able to stay in business.

‘Unfilled Expectation’

Lawsuits that hinge on the behavior of the client can also be difficult to anticipate and protect against. “Unfilled expectation,” a fairly common type of lawsuit today, falls in this category.

It refers to situations in which the client claims the architect failed to ascertain fully his needs and budget constraints in designing the building, and typically arises after the building is completed.

For example, a client who appears to be perfectly satisfied, turns around and sues the architect, claiming he should have known his client could not pay $200 a month for air conditioning, and therefore the design should have had less glass even if this meant less view!

Since the courts can rule that it is the architect’s responsibility to ascertain the client’s budget, and since courts tend to favor clients--they are inexperienced, but this is the architect’s business--the architect stands a good chance of losing in this case even thought he designed a structure that the client approved.

‘Litigation Heartaches’

It should be noted, however, that in the current onslaught of lawsuits against architects, they are not completely faultless. Many of these “litigation heartaches” could have been avoided if the architect had carefully anticipated all possible contingencies and had sought legal advice in drawing up the contract.

A common type of “avoidable case” occurs when the architect, who knows enough about construction to know what can go wrong, allows unsupervised use of his plans.

A California architect was sued after he designed a condominium in the Palm Springs area. He had agreed as part of the contract to give the client/developer the plans upon completion of the project. It never occurred to him that the developer would use them without modification in a radically different climate or site.

But that’s exactly what happened. Without the architect’s knowledge, the developer built an identical project in the Sierra Nevada, where snow is common, but did not redesign the roof to accommodate the additional weight. It failed, the condo owners sued the architect for the “design effect,” and they won.

Two-Dimensional

The real problem here was not simply relinquishing the plans and hence control over where they were sued. It was by implication agreeing not to supervise future implementations of the plans.

Plans are simply two dimensional diagrams for three-dimensional buildings. No matter how complete, they always require interpretation, as anyone who has ever tried to assemble a piece of furniture or household equipment from “easy-to-read directions” can attest.

The architect should not assume that a contractor will always make the correct interpretation of his design and insure that it is free from all design defects, a charge that, if made, will automatically involve the architect in a lawsuit.

In most cases, architects are sued by disgruntled clients. But sometimes an architect will sue a client to prevent a potential liability from developing further down the road, particularly in cases regarding residences. In many courtrooms, there is a bias toward the homeowner because his life savings and income may be tied up in the project.

Potential Liability

The savvy architect will sue when the client fires him before construction begins but retains the construction documents, intending to build the structure anyway. The situation occurs when the owner wants to avoid paying the architect supervision fees.

Knowing the potential liability of having his design with his name on it constructed without benefit of his supervision, the wise architect tries to stop construction by suing the owner for breach of contract.

According to San Francisco attorney John Martel of Farella, Braun & Martel, however, the truly prudent architect can discourage such a development (and a costly lawsuit) from occurring in the first place by stamping “preliminary drawings not to be used for construction” (or something similar) on all plans submitted to the owner, by not leaving any plans with a client whom the architect senses is “shaky,” and by registering a copyright (a fairly simple procedure) on all designs submitted to the client and informing him that this has been done.

Copyright Infringement

This latter tactic both makes clear to the client that the architect takes his exclusive ownership of the design seriously and also gives additional grounds for a lawsuit--copyright infringement--should the client try to fire the architect anyway.

Another variation on this theme of “dumping the architect” occurs when the client tries to sell the plans to a third party who may or may not hire the architect to supervise construction. Judging from the real estate ads in Los Angeles newspapers, this is not uncommon here.

It seems to arise most often in residential commissions when the clients are typically not sophisticated and there is genuine misunderstanding over who actually owns the plans.

From the client’s perspective, he shelled out $25,000-$30,000 to the architect for the design of his $250,000 to $300,000 dream house. After he killed the project (he got a divorce, had financial reverses, etc.), he thinks he has a perfect right to recoup his loss by selling the plans as well as the land on which the house was to be built.

No Right to Sell

In fact, the client’s $30,000 paid for “architectural services.” He never owned the plans and has no right to sell them, as the AIA Standard Form of Agreement Between Owner and Architect, most commonly used by architects for residential commissions, makes clear.

However, since the client may never have read the contract carefully, and may not fully appreciate this point, Martel recommends that the architect always strengthen his ownership rights in the eyes of the client by registering a copyright on all designs.

The client certainly can’t legally sell what he never owned, but copyright registration affords additional protection since the architect can also go after the client for copyright infringement if he still insists on selling the plans.

If the litigation crisis continues to escalate, the public will ultimately lose. Insurance companies will limit their coverage, charge prohibitively expensive premiums or give up insuring architects altogether, leaving them with the choice of “going bare” and offering no protection to clients at all or refusing to practice at all without insurance.

Either way, the public loses, especially in the latter case. Though some types of very simple buildings (such as houses) can easily and safely be constructed without an architect’s services, large buildings--hospitals, apartment blocks, office towers, airports, etc.--would be a gross threat to public safety if designed and built by individuals who are not trained, knowledgeable or licensed to protect public safety and promote public affairs.