- Posted by John P. Ahlers
- On August 28, 2014
Unlike other professionals, a unique problem faced by architects is that there are codes and ordinances that specifically detail how their jobs are to be performed. Lawyers are ethically prohibited from contracting to guarantee the outcome of the case. Doctors are practically precluded from guaranteeing the outcome of a particular medical procedure. Architects, on the other hand, are required by law to comply with codes when designing improvements in real property.
The codes and ordinances applicable to architects often provide standards by which other service providers such as contractors, subcontractors, and inspectors can contest whether the architect has performed properly. Frequently, the building and zoning ordinances, codes, and statutes are subject to interpretation. There is generally a person or entity with final authority to declare what the code, statute, or regulation means. Usually, a public official is the final authority when interpreting codes, statutes, or regulations, but in, occasionally a court decides.
For example, in School Board of Broward County v. Pierce Goodwin Alexander & Linville, the parties contract identified a building official to be the final authority as to the interpretation of the applicable building codes, statutes, and regulations. 137 So.3d 1059 (2014). The Broward County School Board entered into a contract with an architecture firm to renovate a high school. As is typical for such public works projects, the School Board retained the services of a “peer reviewer” to monitor and offer a second opinion of the architect’s design.
During the initial phases of the design project, as plans were being developed for bidding by contractors and submitted for approval by the School Board, the peer reviewer submitted comments to a portion of the initial design plans. The peer reviewer noted that the plans were not code-compliant with the fire safety standards. A third-floor balcony on one of the buildings required construction of a staircase as an emergency exit in the event of a fire. The architect disagreed, and the matter was discussed and negotiated over several months before the project was bid. The architect believed its alternative solution was approved by the building code official during a meeting. That meeting occurred prior to the project going out for bid to contractors.
As it turned out, the peer reviewer was correct. After the project was awarded, the building code official determined that the design plans were not code-compliant and required that the staircase be built to the third-floor balcony. The plans, at that point, had to be redrafted by the architect, and the contractor was paid a change order because the contractor’s bid did not contemplate the construction of a staircase. The School Board paid the contractor and then sued the architect on grounds that the architect failed to provide a design that was code-compliant.
The initial issue was what standard of care the architect should be held to. The School Board contended that the standard of care was whether the initial plans were code-compliant, as required by the contract. The architect contended that the standard of care was whether it performed its duties with ordinary and reasonable skill, as required by the indemnity provision.
On appeal, the Florida Court of Appeals held the architect to the higher standard of care, ruling that question was whether the initial plans were code-compliant, not whether the architect acted with reasonably skill. The Court found that the indemnity provision was inapplicable because it only applied to third-party injuries and did not affect the architect’s liability to the owner for failure to deliver professional services in accordance with the contract. The Court also held that the contract unambiguously allocated to the architect the risk for costs and expenses attributable to design plans that were not code-compliant. The Court found that the indemnity provision was in addition to (not a limitation upon) the rights and remedies for breach of the contract.
Comment: Most design professionals consider code compliance to be within the general common law standard of care. Building and zoning codes, ordinances and regulations are frequently subject to differing interpretations; therefore, prudent design professionals may consider it in seeking to contractually define the procedures by which a final authority will interpret such codes. Here, had the parties required that the building official put the initial opinion in writing (prior to the contract going out for bid), this case might have had a different outcome.
 Thank you to Michael C. Loulakis, of Capital Projects Strategy, LLC/Civil Engineering, July/August 2014 for bringing this case to our attention.