Publication

One of the key concepts at the heart of Board complaints and civil claims against a design professional is whether or not that design professional complied with the applicable standard of care. In order to prevail on such a claim, the claimant must establish (typically with the aid of expert testimony) that the design professional deviated from the standard of care. On the other side of the coin, to defend a design professional against a professional malpractice claim, defense counsel attempts to establish that – contrary to the claimant’s allegations – the design professional, in fact, complied with the standard of care. Obviously, it becomes very important in such a claim situation to determine what the standard of care is that applies to the conduct of the defendant design professional. Often, this is easier said than done. There is no dictionary definition or handy guidebook that identifies the precise standard of care that applies in any given situation. The “standard of care” is a concept and, as such, is flexible and open to interpretation. Traditionally, the standard of care is expressed as being that level of service or competence generally employed by average or prudent practitioners under the same or similar circumstances at the same time and in the same locale. In other words, to meet the standard of care a design professional must generally follow the pack; he or she need not be perfect, exemplary, outstanding, or even superior – it is sufficient merely for the designer to do that which a reasonably prudent practitioner would do under similar circumstances. The negative or reverse definition also applies, to meet the standard of care, a practitioner must refrain from doing what a reasonably prudent practitioner would have refrained from doing.

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Do you have the proper skilled and trained workforce for your construction projects? If you take on public works projects in California, you may not be in compliance with the new changes in the law. To avoid civil penalties or nonpayment and potentially being precluded from future bids on public works contracts, you must critically review your team and proposal prior to accepting an award. Once awarded a public contact requiring a skilled and trained workforce, diligent reporting practices and oversight are required to maintain compliance.

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Section 5588 Prior to 2005 Legislative Changes

Section 5588 of the California Business and Professions Code sets forth the reporting requirements for many business professionals including architects. Since 1979, Section 5588 has required architects and their insurers to report to the California Architect Board (the Board) “any settlement or arbitration award in excess of five thousand dollars ($ 5,000) of a claim or action for damages caused by the license holder's fraud, deceit, negligence, incompetency, or recklessness in practice.”¹

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Los Angeles attorneys Brenda Radmacher and Jason Suh and San Francisco attorney Catherine Delorey obtained a complete dismissal in a multi-party action involving a luxury boutique beach-front hotel and the hotel’s former architect, general contractor and project manager. The lawsuit alleged breach of contract and professional negligence against the hotel’s project manager for failing to secure the necessary Coastal Development Permit prior to the development of the hotel. Plaintiff alleged damages against all defendants in excess of $45,000,000. Read more

St. Louis Partner Jay Morris prevailed on appeal to the Court of Appeals for the Eastern District of Missouri on behalf of a subcontractor for whom we obtained a judgment including full attorney’s fees. The appellate court awarded attorney’s fees for the appeal as well. Despite having waived its right to recover for work outside the scope of the contract, plaintiff was entitled to payment for work performed under the contract. Further, defendant’s offer to make payment only as “final payment,” which would have resulted in waiver of all claims, was found by the court to be a conditional tender, such that the payment due was never made or offered by defendant. Under the prevailing party provision of the contract, our client was awarded full fees and costs as the trial court found it to be the prevailing party. The defendant appealed that ruling, arguing that because plaintiff did not prevail on the mechanics lien or the claim for extra work, it should not be deemed the prevailing party. The appeals court disagreed and affirmed the trial court’s judgment with instruction to determine and award plaintiff additional attorney’s fees related to the appeal.

Denver Partner Daniel Evans was a featured presenter at the Denver Construction Workshop for architects and engineers on November 22, 2019. He presented “Understanding Construction Contract Essentials”, focusing on key construction terms, remedies for contract breaches, and contract interpretation.

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The Gordon & Rees Construction Law Blog continues to post new content addressing topical issues affecting the construction industry throughout the country. From analysis of new court decisions, discussions of timely legislation, and commentary on real-world, project-specific issues, Gordon & Rees’ Construction Law Blog provides insight on the issues that affect the construction industry now.

We invite you to visit the blog at www.grconstructionlawblog.com and see for yourself what we are up to. If you like what you see, do not hesitate to subscribe under the “Stay Connected” tab on the right side of the blog. There you can choose how you would like to be informed of new content (Twitter, LinkedIn, email, etc.). If you have any questions about the blog or would like to discuss further any of its content, please do not hesitate to contact us.

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Gordon & Rees' Construction Group consists of more than 150 lawyers in offices nationwide. In 2019, the firm opened its 68th office, creating the world’s first 50-state law firm. The full list of Gordon & Rees' offices and local contacts can be found here.

Gordon & Rees’ construction attorneys focus their practice on the comprehensive range of legal service required by all participants in the construction industry – architects, engineers, design professionals, design joint ventures, owners, developers, property managers, general contractors, subcontractors, material suppliers, product manufacturers, lenders, investors, state agencies, municipalities, and other affiliated consultants and service providers.

We serve clients who design, develop, or build all types of structures, including commercial buildings, single and multifamily residential projects, industrial facilities, universities, hospitals, museums, observatories, amusement parks, hotels, shopping centers, high-rise urban complexes, jails, airports, bridges, dams, and power plants. We also have been involved in projects for tunnels, freeways, light rail, railway stations, marinas, telecom systems, and earth-retention systems. Our experience includes private, public, and P3 construction projects.

If you have questions about this issue of the Construction Law Update or our nationwide construction practice, click here to visit our practice group page or contact partner Tom Cronin.

Thomas G. Cronin
Gordon Rees Scully Mansukhani
1 North Franklin
Suite 800
Chicago, IL 60606
(312) 980-6770
tcronin@grsm.com

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