Conclusion

The new opportunities and evolving products, processes, and performance standards are unlikely to slow down and will only continue to challenge architects in more intense and rapid ways in the future. Under those circumstances, the traditional external standard of
care based on how others have performed falls away in favor of standards for communications regarding expectations, realities, reliance, and investigation, along with a process of implementation. This will become the defining standard for the “ordinary, but reputable” architect. The hope is that the principles discussed above will provide the bases of a strategy to keep pace with these changes for the mutual benefit of architects, their colleagues, clients, and insurers.

Endnotes

  1. David A. Ericksen is a principal shareholder in and President of the law firm of Severson & Werson in San Francisco, California, and leads the firm’s Construction and Environmental Practices. For nearly twenty years, Mr. Ericksen has specialized in the representation of architects, engineers, construction managers, design-builders, and other construction professionals. Mr. Ericksen's expertise covers all aspects of such professional practice as lead litigation and trial counsel, as well as being an active resource for risk management, strategic planning, and transactional matters. He is a trusted and valued resource to design and construction professionals and their insurance carriers across the United States and beyond. He is a graduate of Boalt Hall School of Law, University of California, Berkeley, a former law clerk to the Washington State Supreme Court, and a member of and resource to numerous construction and environmentally-related professional organizations. Mr. Ericksen is a frequent speaker before construction professional organizations such as the AIA, SEA, ACEC, CSI and others, as well as providing in-house training seminars for firms.
  2. Severson & Werson has provided legal services throughout California and the country for more than fifty years. The firm provides counseling and litigation support to all members of the construction process, including design professionals, construction managers, environmental professionals, owners, contractors, and insurance carriers.
  3. While the standard has become more refined over time, it has been widely recognized by Courts in the United States for well over 100 years. In 1896, the Maine Supreme Judicial Court provided the classic statement: The undertaking of an architect implies that he possesses skill and ability, including taste, sufficient to enable him to perform the required services at least ordinarily and reasonably well; and that he will exercise and apply in the given case his skill and ability, judgment and taste, reasonably and without neglect. (Emphasis added.) Coombs v. Beede, 89 Me. 187 (1896).
  4. AIA B101 2007, Article 2.2.
  5. AIA, B101 2007, Article 3.2.3.
  6. AIA B101 2007, Article 3.6.4.2.
  7. AIA B101 2007, Article 4.1.6.
  8. AIA B101 2007, Article 4.1.23.
  9. AIA B101 2007, Article 4.1.24.
  10. AIA B101 2007, Article 4.3.1.5.
  11. California Standard Jury Instruction No. 602 (modified).
  12. XLDP Risk Drivers Study which links 49% to technical issues & 51% to non-technical issues as of 2009.
  13. XLDP Risk Drivers Study
  14. In re Collmar, 417 B.R. 920, 923 (Bankr. N.D. Ind. 2009).
  15. See for example the standards issued by the Joint Commission on Accreditation of Healthcare Organizations.
  16. As an example of technology-related risks of reliance, the Washington Supreme Court upheld the liability limitations in a software license agreement even though an alleged defect in the software caused a contractor to underbid a project by $1.95 million. M.A. Mortenson Co., Inc. v. Timberline Software Corp., 140 Wn.2d 568, 998 P.2d 305 (2000).
  17. Builders say BIM can be competitive tool during recession. Daily Journal of Commerce, January 26, 2009, citing in part to a McGraw Hill Construction report.
  18. AIA B101 2007, Articles 4.1.6 and 4.3.1.5.
  19. “BIM! You’ve Been Sued!”, STRUCTURE, February 2009.
  20. J. Kent Holland, Publisher, Construction Risk.com Report, Vo. 9, No. 8, December 2007.
  21. Nat’l. Inst. Of Building Sciences.
  22. BIM May Reduce Design Exposures but May Create Technology Risks, Victor O. Schinnerer & Company’s Risk Management Guideline No. 2 for 2008.
  23. The AGC Consensus Document 301 is the competing document from the Association of General Contractors, but it lacks the specificity of the E202 and is really just an agreement to agree. Accordingly, it serves best as a checklist rather than an actual agreement as to definitions and procedures.
  24. AIA E202 (2008), Section 1.2.1.
  25. AIA E202 (2008) Article 3.
  26. AIA E202 (2008) Section 1.2.3.
  27. AIA E202 (2008) Sections 1.2.4 and 2.2.
  28. AIA E202 (2008) Articles 2 and 4.
  29. Integrated Project Delivery: A Guide (2007) AIA National/AIA California Council.
  30. Integrated Project Delivery: A Guide (2007) AIA National/AIA California Council, pages 5-6.
  31. “Insurers Worry About Green-Building Risks”, Engineering News Record, July 9, 2009.
  32. AIA B101 2007, Article 3.2.3
  33. National Society of Professional Engineers Code of Ethics for Engineers, Section III, Subsection 2d.
  34. National Society of Professional Engineers Code of Ethics for Engineers, Section III, Footnote 1.
  35. See “green” based design claims summary by Frank D. Musica of Victor O. Schinnerer & Co., Inc., delivered to the 2007 National AIA Meeting in San Antonio, Texas under the title, “Don’t Let Green Design Cause Red Ink.”
  36. Id.
  37. Many of these educational points are drawn from the Musica presentation referenced above as well as from cases in the author’s own experience.