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Construction Law Authority / Insurance  / Design Professional Liability Legislation (Again)

Design Professional Liability Legislation (Again)

For the third year in a row, the state legislature has introduced legislation to protect architects, engineers and other design professionals from claims for negligence in the performance of their professional services. In 2010 a bill passed both legislative houses but was vetoed by Governor Crist. Last year the bill did not get as far, but apparently proponents of the bill believe the third time may be the charm. Unfortunately, as in prior years this legislation is anti-consumer.

Senate Bill 286, linked here, would provide that architects or engineers would no longer be personally liable for negligence arising out of their professional services. This would essentially limit people hiring these design professionals to breach of contract claims against the design professional’s business entity. This is a problem because most design contracts limit the design professional’s liability to some paltry amount that pales in comparison to the harm that comes from defective design. The steps that the design professionals would need to take to obtain such immunity would not be difficult. Basically, they need only disclose in the contract that your rights are being limited.

The legislation further provides the business entity must maintain professional liability insurance required under the contract. However, there is no requirement that the design professional or the entity maintain insurance, only that the insurance meet what is required under the contract. The majority of design professional contracts I have seen show no requirement for the entity to maintain insurance. Usually that is a provision that must be negotiated into the contract, including the amounts and duration of such policies. Unsophisticated owners will receive the short of this stick with the passage of such legislation.

No other professionals are entitled to such protection. Doctors, lawyers, and accountants cannot limit their exposure for their own negligence in this fashion. And there is no justification for singling out architects and engineers for this type of insulation.

If you are bothered by this legislation, contact your legislators now and speak out to fight this bad bill and your help and participation could strengthen the fight.

Sanjay Kurian

Sanjay Kurian is a Board Certified Construction Lawyer and is a member of the Firm’s Construction Law and Litigation group. He is AV Rated Preeminent by Martindale-Hubbell. He has also been selected again as a Super Lawyer in 2018, which is a recognition by his peers of the top 5% of lawyers in Florida.

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