What should you do when your client wants you to assume a duty to defend the client in any claim brought against him or her relating to your professional services? And how do you avoid this unduly burdensome risk?
Agreeing to defend another party, generally an owner or developer against a covered third-party claim, means that you as the architect will be incurring attorney’s fees and costs—regardless of fault—and which can easily exceed the design professional’s liability. While you may likely turn to your insurance carrier under your policy coverage, insurers will generally deny coverage for duty to defend claims.
This new article published by the AIA Risk Management Program focuses on the difference between the duty to defend and an agreement to indemnify—and why the duty to defend represents an unfair risk to the architect. It also highlights the CH2MHill case in California as an example of the worst case scenario. You’ll find out more about a recent California statute, intended to protect Architects and other design professionals against contractual duties to defend, and how you should proceed when confronted with a similar request.