Strangers No More?
Trends in the Architect's No Privity Defense
By John P. Cahill, Jr., Esquire and Michael A. DeScioli, Esquire
As long as privity remains a valid defense, most contractors, subcontractors, or other third parties do not have a valid basis to file a claim or lawsuit against an architect for deficiencies in his or her work. While lack of privity is still a valid defense in some jurisdictions, there has been a clear trend in many states to modify or completely abandon this defense that has benefited architects and engineers. Courts are becoming more likely to expand available causes of action against design professionals without privity of contract. This paper discusses the status of the law on the privity defense for a design professional in numerous jurisdictions and the approaches to uphold or limit such defense. In addition, it shares some practical considerations to reduce risk and avoid expanding potential for liability that design professionals can consider.
JOHN P. CAHILL, JR has been licensed to practice law in the State of Texas since of November 1984. He graduated from Baylor University in 1983 with a Bachelor of Arts Degree and from Baylor University School of Law with a Juris Doctor in 1984. He joined Hays, McConn, Rice & Pickering, P.C., on December 1, 1999 was the firm’s Managing Shareholder at the time of its merger with LeClairRyan on August 1, 2014. He is now the Houston Office Leader. He concentrates his practice in the representation of architects, engineers, surveyors, real estate brokers and others involved in the construction industry. He is a member of the Construction Law Sections of the State Bar of Texas and Houston Bar Association. He is a member of DRI, serving on the Construction Law Committee and Design Professional Special Law Group. Mr. Cahill is a member of the Claims & Litigation Management Alliance. Mr. Cahill has conducted numerous risk management seminars for various design professional organizations, engineering companies, insurance companies, real estate brokers and other clients. He also mediates construction and real estate disputes.
MICHAEL A. DESCIOLI has been licensed to practice law in the State of Texas since of November 2004. He graduated from Texas A&M University in May, 2001 with a Bachelor of Business Administration and from The University of Houston Law Center with a Juris Doctor in May 2004, cum laude. He joined Hays, McConn, Rice & Pickering, P.C., in February of 2009 and became an associate of LeClairRyan on August 1, 2014 when Hays McConn merged with LeClairRyan. His current practice includes the representation of architects, engineers, and others involved in the construction industry, as well as insurance defense work representing entities and individuals against personal injury and premises liability claims. Mr. DeScioli is a member of the American Bar Association, the Houston Bar Association, DRI, and the Texas Association of Defense Counsel. He is currently an Honorary Board Member of the Dr. Marnie Rose Foundation, which supports brain cancer research at M.D. Anderson Cancer Center.