BY ANDREW J. FUGA, ESQ., & JUSTIN B. ANDERSON, ESQ., BURNS WHITE LLC
In many construction projects it is typical that contractors are required to submit shop drawings and/or submittals to the design professional for review prior to a product being ordered or installed. When a dispute arises on a project, and litigation is filed, the shop drawing review process can be over scrutinized and arguments can be made that the design professional “adopts” or “approves” defects within a submittal or shop drawing.
The American Institute of Architects (“AIA”) standard form general conditions – Document A201, 2017 Edition, defines shop drawings as “drawings, diagrams, schedules and other date specially prepared for the Work by the Contractor or a Subcontractor…to illustrate some portion of the Work.” (§3.12.1). Shop drawings are not Contract Documents. Their purpose is to demonstrate how the Contractor proposes to conform to the information given, and the design concept expressed, in the Contract Documents, for the portion of the Work for which the Contract Documents require submittals. (§3.12.4). By submitting shop drawings, the Contractor represents to the Owner and Architect that the Contractor has reviewed and approved the shop drawings, has verified materials, field measurements, field construction criteria, and has checked and coordinated the information in the shop drawing with the requirements of the Work and the Contract Documents. (§3.12.6).
SHOP DRAWING RISKS FACING DESIGN PROFESSIONALS
A common problem in the shop drawing review process arises when the contractor prepares shop drawings or submittals for the design professional’s review and “approval.” Generally, the design professional stamps the submittal and returns it to the contractor for construction. What if it turns out the shop drawing was deficient, or contained an error, but generally appeared to comply with the project specifications? Section 3.12.8 of the AIA A201 states that the contractor is not relieved of liability for errors or omissions in the submittals even if they are approved by the architect, however many attorneys try to creatively get around this fact. For example, some attorneys argue that the design professional’s stamp indicates that the design professional has reviewed the shop drawing for all purposes, including safety issues, field dimensions, and other matters that are outside the contractual scope of the design professional’s concern. Typical language contained in the design professional’s shop drawing stamp will be the word “approved.” What does “approved” really mean for purposes of reviewing a shop drawing? Another example of language that can still lead to a legal misconception, but is preferred when compared to “approved,” is “no exception taken.” While a design professional can argue that such language does not imply that they reviewed the shop drawing for all purposes, including those outside the proper scope of the design professional’s review, leaving that determination to the finder of fact – judge, jury or arbitrator- does not lead to the most certain outcome
For example, in Novum Structures, LLC v. Larson Eng'g, Inc., 2019 WL 1924878, at *4 (E.D. Wis. Apr. 30, 2019), the plaintiff, the general contractor for the project, tried to hold liable a supervisory architect who “approved” the design plans made by a subordinate, but the court found that the plaintiff had "failed to establish that stamping a design document necessarily includes the duty to review and ensure the propriety of components necessary to that design." Instead, courts and the industry as a whole have frequently placed the onus upon the contractor. For example, contracts may impose extensive and exhaustive responsibilities on the contractor to carefully study and verify all design-related documents, including taking field measurements and verifying field conditions in order to compare them to the designs, and report to the designer any questions, errors, inconsistencies, or omissions, as was seen in Coghlin Elec. Contractors, Inc. v. Gilbane Bldg. Co.; Div. of Capital Asset Mgmt. & Maint., 36 N.E.3d 505 (Mass. 2015). Furthermore, even if a requirement is not outlined in the contract, courts have held that the contractor should assume there is a duty to flag any omissions, ambiguities, or inconsistencies that are identified in the plans and designs by raising the issue with the designer, as was held in Goodrich Quality Theaters, Inc. v. Fostcorp Heating & Cooling, Inc., 16 N.E.3d 426 (Ind. Ct. App. 2014).
HOW TO MINIMIZE RISK
While little can be done to prevent a design professional from being named as a defendant in a lawsuit, there are several precautions that can be employed by the design professional to limit their exposure as much as possible. Primarily, at the outset of the project, it is important to ensure that language, including but not limited to that outlined above in AIA Document A201, 2017 Edition, is present or referenced in the Prime Contract between the Owner and Architect. This is especially salient if the design professional is not using AIA documents for a project.
Another solution is to explicitly limit the scope of the design professional’s review on the shop drawing stamp; specifically, use of language that limits the scope of review of the shop drawing. An example of such limiting language may include that the shop drawing appears to be in “general conformance with the specifications with the limited information given” or “appears to comply with the overall intent of the Construction Documents.”
Finally, regardless of a design professional’s diligence with respect to contractual language and shop drawing stamp language, a good practice for design professionals is to require the general contractor and/or construction manager to review and approve every shop drawing before the design professional reviews the shop drawing. By ensuring this process is adhered to, the finder of fact may generally be more receptive to the design professional’s limited role in the shop drawing review.
Should you have any questions regarding this subject matter, please feel free to contact Andrew J. Fuga, Esquire at firstname.lastname@example.org or Justin B. Anderson, Esquire at email@example.com.
ABOUT THE AUTHORS
Andrew J. Fuga is a Member of the Burns White Philadelphia office, and the Co-Chair of the Construction Law practice Group. Mr. Fuga primarily defends clients in actions arising from professional and general liability. These include professional liability claims against architects, engineers, and other design professionals, alleging damages for delay, design defects, property damage, and personal injuries. Mr. Fuga also defends construction industry clients, oil and gas industry clients, hospitals, universities, retail companies, and other non-profit corporations against a wide range of personal injury claims, including those for catastrophic loss. Additionally, Mr. Fuga counsels his clients with respect to their contracts and insurance policies. Justin B. Anderson is a litigator at Burns White, offering clients creative solutions and strategies to navigate the legal process effectively. A member of the Construction and Litigation practice groups, Mr. Anderson represents clients from a variety of industries in contract matters, professional liability suits, and business transactions.
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