Thursday, December 16, 2010

To Have An Architect Or To Not Have an Architect

In response to a 3rd Court of Appeals decision last week, the Texas Society of Architects|AIA submitted the following “Guest Editorial” under Interim EVP Tommy Cowan’s name to the Austin American-Statesman. We did this in response to a perceived need to educate readers on how far-reaching the three-judge panel’s (split) opinion will be if it’s not amended or over-turned. In summary, an architect’s potential liability under contract or construction administration clauses could be exponentially expanded based on construction “observation” being construed to be “supervision.”

The Society has been involved in this specific case now for months, having already supplied an Amicus brief, engaging the review and support of the American Institute of Architects, attending oral arguments and in consultation with defense attorneys. We will continue to update the membership of steps we take to prevent this expansion, if not reversal, of legal doctrine. TSA will continue to help fight this and every other significant legal case that could adversely impact the practice of architecture in Texas.

Meanwhile, members should carefully consider potential implications that might be assumed to be included as part of contract administration.

 

 

 

 

 

 

 

 

 

 

 

 

 December 15, 2010

To Have An Architect Or To Not Have an Architect

Last Wednesday, December 8, 2010, a Texas Appellate Court released an opinion that affirmed a judgment against an architect for $410,000 for not catching a construction defect.  That defect was created solely by a subcontractor, who was uninsured and hired by the general contractor.  The subcontractor deviated from the architect’s design and used nails, rather than bolts, to attach a balcony to a house.   Because of the subcontractor’s deviation, the balcony collapsed and severely injured a woman. It is undisputed that a “design defect” did not cause the balcony to collapse.   Shockingly, the subcontractor ignored and deviated from the architect’s drawings simply because he had no bolts with him on the day he attached the balcony to the house.

 The precedent that this opinion sets is monumental. If by setting foot on a construction site, architects are now expected to examine every nail, bolt and connection, the architect may just as well become the contractor and be compensated to serve in that capacity.

Most construction contracts, just like the one that was before the Appellate Court,  typically promise and guarantee that the contractor will build the building or home in accordance with the architect’s plans.  The architect never contracts to ensure that the contractor will do his job.  But if that is now the level of responsibility that Texas courts will force the architect to bear merely by setting foot on the construction site, then most consumers will never be able to afford the charges that the architects will have to charge to cover their risk and their insurance premiums.   The result will be that architects will NOT be involved in the construction process at all.  Safety concerns will no longer be just an unfortunate rare occurrence, but most likely will become an integral concern for every home or building that’s built. The handoff will be clear between the design professional and the contractor.  The public should understand that contractors are not licensed or accountable to any licensing agency. Architects are, and they serve as a critical bridge between owners and contractors. If this recent court opinion is permitted to stand, then it will tear down that bridge and leave owners to fend for themselves.

Sincerely,

Tommy Cowan, FAIA

Interim Executive Vice President

Texas Society of Architects

 

 

 



4 comments:

David Fjelstad said...

The architect or owner could also bring in a third party to make sure plans are being followed. http://bit.ly/hAA5py explains an example of a Quality Assurance Observation program which reduces defects, by having a team on site to observe that plans and specs are being followed.

Chris said...

I found the dissenting opinion online, but cannot find any other information easily. What liability has the contractor been assigned? How do the parties that sued the architect have any standing to sue since they aren't the owner?

http://www.3rdcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=19777

tdatx said...

I'm confused. I do not know what contract they used, but typically we use the AIA B105 for these kinds of projects (Standard form of Agreement... for a Residential or Small Commercial Project), which references the A105 (Owner-Contract for small projects), which states under roles of responsibility under 9.3 specifically: "the Architect will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents." The only thing I can think of here is that the owner and contractor signed something else and put the architect on the spot, possibly without him knowing. Are there more details on this case available?

Chris said...

The majority and dissenting opinions are here:

http://www.3rdcoa.courts.state.tx.us/opinions/docket.asp?FullDate=20101221