Condos/HOAs Have a Lot to Lose if Design Professional Protection Bills Become Law
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Although there are many positive developments for Associations in this legislative session, noted below, there is at least one piece of legislation that will adversely impact associations, and all consumers.
Architects, engineers, surveyors and other design professionals may be anxiously awaiting Senate Bill 1964 and House Bill 701 to pass.
If these provisions become law it will limit liability for design professionals, as of July 1, by:
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cutting off liability, in tort, of design professionals that fail to properly carry out their professional duties.
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overruling Florida Supreme court cases and Appellate decisions from all over the state which protected consumers and the general public with necessary redress in tort for economic damages cause by design professionals.
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permitting design professionals to escape liability for their own negligent conduct, if insurance exists, and
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elevating design professionals above other professionals, such as lawyers, doctors, and accountants, who cannot limit their liability by contract.
Associations are constantly fixing their roofs, roads, performing balcony concrete restoration, seawalls, fire alarm electrical engineering renovation, elevator modernization and structural repairs. All of these renovations are designed by engineers, architects etc, and are required to meet building codes including life safety codes. Associations hire design professionals to issue drawings and specifications to accomplish these goals. Design professionals are also retained to monitor construction activities and approve applications for payment on these projects. Shouldn't they bear responsibility for damages that result from mistakes, omissions, lack of attention to detail or otherwise?
An error in design judgment can be devastating to unit owners and homeowners. Improperly designed elevator repairs, concrete repairs, shoring of buildings, electrical renovations, fire protection system renovations or repairs all could result in economic loss to Associations and ultimately unit owners and homeowners.
Should design professionals be allowed to practice without accountability for their negligent acts at the expense of Florida’s consumers? It is simply unfair.
Florida’s consumers should call their representatives immediately to prevent these bills from becoming law.
Not necessarily, remember that construction is a collaborative process involving multiple parties with multiple responsibilities. While it is the responsibility for the design professional to produce design documents that detail the assembly being constructed, it is the responsibility solely of the contractor to install and or construct the assembly. furthermore the local municipality is responsible for reviewing documents and inspecting the construction while enforcing permit approval. If there is a problem or question with the design documents it is the responsibility of the contractor to bring it up with the design professional and owner before proceeding with the construction.
Since the responsibility for installation and construction lie with the contractor, it is unfair to the design professional to assume the liability for work that is not their own.
RESPONSE: You are correct - there is no reason to assume liability for the work of others, unless part of your role is to monitor the work and ensure that it is done correctly. In that case the liabilty is as a result of the failure to perform the monitoring/work supervision, not the contractor's failure to execute the work.
Collaborative effort between design components and construction of any major redevelopment, reconstruction, major repair has been under the professional eye of the architect, engineer, who has the training to plan according to the State codes, with experience. Condo associations bid and hold responsible all parties, having done due dilligence to receive the appropriate bids. Therefore, paying a design firm to undertake these tasks, should have with it the understanding that these design professionals will supervise or oversee what the construction people carry out. Therefore, they should be liable for not having proper oversight. There are construction firms who believe they can re-do the plans disregarding the plans laid out for them by exchanging material specifics, or eliminating design. Therefore, in contracting a professional design expert, they should be liable to insure that the agreed upon plans are being carried out. In our own experience, a contractor set the foundation blocks to a major addition, a foot outside the architectural drawings, which then if unattended to, would have obstructed the windows and door openings. The architect, upon visit, noticed this, and had the contractor remove the blocks, and redo them to the specifics. There was no cost to the homeowner, and it saved vast problems if this had not occurred.
In a time where subdivisions and communities are having a hard enough time getting units sold, to start exempting firms from liability when it is determined things were installed wrong, is bad for the state. Lawyers might find this another avenue of cash when lawsuits come to the surface, but I think these two bills (Senate Bill 1964 and House Bill 701) should be vetoed.
Your article seems to imply that the legislation takes away the HOA / consumer / client's ability to sue design professionals for mistakes. This is incorrect. CS/CS/SB 1964 does not in anyway, affect the ability to sue design professionals in tort for personal injury or damage to property that is not the subject of a professional services contract. Moreover, the rights of persons or entities that are not a party to a contract requiring professional services are not affected in any way by the bill. Even parties who have contracted with a design professional may sue for economic damages within the specified liability clause set in their contract.
This year, CS/CS/SB 1964, was filed to correct 1999 Supreme Court of Florida ruling stating that regardless of a design professional’s contract for services, an individual professional could be sued in tort beyond the limits of the contract. In that case, the court ruled that a client could circumvent his contract with a professional engineering firm and sue individual engineer employees of the firm for economic loss.
Subsequently, the ruling was applied in a second case, in which the court held that a client, who had negotiated a contract with a firm with specific limitation on damages, could sue the professional employee of the firm in lieu of suing the firm and in total disregard of the contracted damages limitations. CS/CS/SB 1964 restricts claims to those persons included in the contract and limits liability to that which was negotiated in contract.
The goal of the legislation is to protect design professionals on staff who are working diligently for a firm and who usually have no involvement in the client's contract with the firm. As it stands today they can be held liable when they had nothing to do with the terms of the contract. These design professionals generally do not benefit from the profit derived from the contract, and may have limited involvement in the decisions affecting the project. Staff design professionals have been seriously affected by the Great Recession. To allow this type of situation to persist will be one more roadblock to recovery.
Does anyone know who in the state gov't supports and who opposes it?
RESPONSE: There are various industry groups and elected officials on both sides of this issue.
Does anyone know who in the state gov't supports and who opposes it?