Architect - Engineer Law

Pay-When-Paid vs. Pay-If-Paid
In Evans Mechwart, Hambelton & Tilton, Inc.. v. Triad Architects, Ltd., 196 Ohio App. 3d 784, 2011-Ohio-4979, an engineer sought payment from an architect, having provided engineering services as a sub consultant under an AIA form consulting agreement. The architect had provided design services to a developer, but the developer had not paid for the services. The architect argued that the AIA agreement did not require the architect to pay the bill unless the architect was first paid by the architect's client. Analyzing the language of the form document, the Franklin County Court of Appeals held that the AIA documents language created a "pay-when-paid" clause not a "pay-if-paid" clause. Under the pay-when-paid clause, the architect has a reasonable time to collect payment from the architects client, but if the architects client does not make payment, the architect is still obligated to pay the consultant.

Disability Discrimination
In Ohio Civ. Rights Comm. v. Fairmark Dev., Inc., 2008-Ohio-6511, the Franklin County Court of Appeals affirmed the common pleas court's dismissal of a Civil Rights Commission complaint brought against the architect and developer of an apartment building completed in 1998, alleging that the defendants engaged in discriminatory design and construction practices, because the buildings were not adequately designed and construction constructed to be accessible to physically disabled persons in accordance w ith the Fair Housing Act of 1988. The allegedly inaccessible features included (1) thermostats and/or thresholds that are too high; (2) doorways and hallways that are too narrow; (3) inadequate clear floor space in bathrooms and kitchens to enable a person in a wheelchair to maneuver about the room; and (4) noncompliant door handles, handrails, ramps, sidewalks, and parking spaces. Although the Court held that the statute of limitations bars some of the relief requested, there is no statute of limitations barring injunctive preventive relief under RC 4112.052 for public wrongs involving unlawful discriminatory practices. However, the relief sought by the Civil Rights Commission was a retrofitting of the building or the creation of a "retrofitting fund." Because the purpose of preventive relief is to prevent future injury not redress past wrongs, the court concluded that neither retrofitting nor the creation of a monetary fund for the purpose of retrofitting is preventive relief permitted in RC 4112.052. The Court of Appeals therefore affirmed dismissal of the complaint.

10 Year Statute of Repose
Effective April 7, 2005, the General Assembly enacted RC 2305.131, a statute of repose to protect architects, engineers, contractors and others against liability for bodily injury, death, and property damage resulting from an unsafe condition on an improvement to real property substantially completed more than 10 years before. The 10 year time is extended until two years after the injury occurs if the injury occurs within the 10 year period. Also, the 10 year period is extended during any time of disability of the injured party, such as during a child's minority or during an adult's mental incompetency.

Even as to mentally competent adults, the constitutional validity of the new enactment is questionable. The Ohio Supreme Court declared a previous attempt to enact a similar 10 year statute of repose to be unconstitutional in Brennaman v. R.M.I. Co. (1994), 70 Ohio St.3d 460 (overruling its own holding that the statute was constitutional in Sedar v. Knowlton Constr. Co. (1990), 49 Ohio St.3d 193). In Brennaman, the court said that it was unconstitutional to cut off a cause of action before it accrued, violating section 16, Article IV of the Ohio Constitution.

Note: Even if the statute is ultimately found to be constitutional, the risk of liability extends many years beyond the 10 year statute. For example, if a one-year-old is injured in year 10, the child will have until the age 20 to file an action -- 30 years from the date of substantial completion. --David W. T. Carroll
Update: The Second District Court of Appeals has upheld the constitutionality of the current statute of repose in McClure v. Alexander, 2008-Ohio-1313, based upon the Supreme Court's reasoning in Groch v. Gen. Motors Corp. , 117 Ohio St.3d 192, 2008-Ohio-546, which upheld a products liability statute of repose.

No Privity, No Claim
In Internatl. Fid. Ins. Co. v. TC Architects, 2006-Ohio-4869, the surety for a contractor sued the owner's architect claiming that errors in the architects design caused damages to the contractor. To avoid the economic loss doctrine, the surety argued that the architect exercised excessive control over the construction process, bringing it into an exception to the economic loss doctrine set forth in Floor Craft Floor Covering, Inc., v. Parma Community General Hospital Assoc. (1990), 54 Ohio St.3d 1. The Court of Appeals held that excessive control is not a substitute for privity of contract and affirmed summary judgment in favor of the architect.

No Privity, No Claim
In Mosser Constr., Inc. v. W. Waterproofing Co., 2006-Ohio-3607, water problems were discovered in a building after construction. The owner’s architect and owner signed an agreement by which the architect agreed to perform certain redesigns and repairs to the building at no cost to the owner and the owner agreed to waive all claims against the architect. The contractor signed a similar agreement with the owner. The contractor and its surety then sued the architect directly for over $1 million in costs to rebuild a trench drain to solve the water problems. The Court of appeals affirmed summary judgment in favor of the architect for lack of privity of contract as an absolute bar to recovering purely economic damages.

Disciplinary Appeal
In Green v. State Board of Registration for Engineers and Surveyors, 2006-Ohio-1581, the Ohio Second District Court of Appeals reversed a surveyor’s successful appeal of disciplinary action on a technical defect in his notice of appeal to the common pleas court. The Board of Registration had disciplined Green, a registered surveyor, for practicing engineering without a license when he allegedly designed a wastewater treatment plant. Green appealed the discipline under the Ohio Administrative Procedure Act on the grounds that he was “adversely affected by” the Board’s order. He won in the common pleas court, but the court of appeals reversed because the statement of grounds in his notice of appeal was an insufficient statment to satisfy RC 119.12 which requires the notice to state the appeal grounds.

Professional Malpractice
When may a practitioner in one specialty testify to the standard of care of another specialty? In Schutte v. Mooney, 165 Ohio App.3d 56, 2006-Ohio-44, the Second District Court of Appeals reversed a directed verdict in favor of an emergency room physician. In Schutte, the court of appeals said that an expert physician specialist in vascular disease could testify as to the standard of care in diagnosing deep vein thrombosis. The expert testified that he was familiar with the emergency room physician's standard of care and that the standard with respect to the diagnosis of deep vein thrombosis was the same from one specialty to another. Also the court said that the defendant could wait until trial to challenge the qualifications of the standard of care expert. There was no obligation to file a pre-trial motion.

Comment. Although this was not a case about an architect or engineer, the principles are applicable to all professional negligence cases.

To read any case above, click on the case name to retrieve a .pdf file to download the entire opinion.

Carroll, Ucker & Hemmer LLC located in Worthington, Ohio, serving Columbus and Franklin County. David W. T. Carroll handles the representation of architects and engineers in the Columbus, Ohio, area and elsewhere.

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