Freddy X. Muñoz(left) and Charles E. Fombrun(right) of Peckar & Abramson.

Design professionals such as architects and engineers are exposed to significant risk and potential liability for errors and omissions in their designs and other work on construction projects. In addition to potential up-front design errors, many professionals participate in project administration, which includes the review and approval of payment applications, inspecting and approving construction work as it progresses, and providing clarification and information through submittal approval and RFI responses, which also puts them at risk for post-completion claims. Florida courts have been expanding this liability and risk, and the Fourth District Court of Appeal's decision in Uddin v. Singer Architects, No. 4D18-2972. (Fla. 4th DCA 2019) is consistent with this expansion by confirming that contractors (who may not even have a contract with the design professional) can file suit against the design professional to recover their damages caused by defective design and project administration.

On many construction projects, the owner hires and has a contractual relationship with its design team, or at least some members of that team. The architect and other members of this team are, of course, liable to their client (typically the owner) for negligence as well as breach of contract. However, what about project participants, such as contractors and subcontractors, who may not have a contractual relationship with the design professional, but could be damaged by their negligence? In the Uddin case, the court held that the contractual relationship was not necessary to impose liability and, in so holding, dramatically increased the risk to design professionals.

There are broad categories of potential damages and parties that could be injured as a result of defective design work on a construction project. There are some obvious examples, such as structural defects resulting in a collapse and corresponding personal injuries and property damages, costs to clean up and repair as well as increased costs of delayed completion. Less obvious examples include such issues as the design professional's delayed inspection of work in place, slow response time to inquiries such as requests for information or submittals or the failure to properly coordinate design documents by various sub-consultants resulting in conflicts. The impact of these types of errors and omissions can likewise result in significant increased costs and delays to project completion, all of which can be charged back to the culpable design professional. Can the contractor sue the design professional directly for these types of issues even though they have no direct contractual relationship? According to Uddin and several other cases that preceded it, the answer is generally "yes." However, the answer may also depend on the level of control the design professional exercises over the contractor and the project in general.

This question was addressed by Florida courts as early as the 1970s. Initially, courts addressing this issue required design professionals to exercise supervisory of control over the project and the contractor's work to impose liability. However, over time, Florida courts have eroded this standard and now look to whether the design professional had knowledge that its plans and specifications and other work would be used and relied upon by a contractor to find a legal duty of care and resulting liability.

Most recently, in the Uddin case, the Fourth District Court of Appeal continued the trend of upholding a design professional's liability to a contractor with which it did not have a direct contractual relationship. In Uddin, Broward County entered into separate contracts with the architect and the contractor for the development of a project at the Fort Lauderdale Airport. After being terminated by the county, the contractor filed suit against the architect claiming professional negligence. While the lower court concluded that the architect did not owe a duty of care to the contractor, the appellate court disagreed and found that a duty of care existed between the architect and the contractor based on the architect's ability to recommend work stoppages and its role in reviewing payment applications, all of which is relatively standard on construction projects. In so doing, the holding in Uddin made clear that even normal conduct and participation creates an affirmative duty between the design professional and all project participants.

Charles E. Fombrun and Freddy X. Muñoz are litigation associates in the Miami office of construction law firm Peckar & Abramson. Contact Fombrun at [email protected] and Munoz at [email protected].