Architect - Engineer Law
(See also Construction Law).
Recent AE Law Cases and Developments
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.
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
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
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.
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.
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.
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.
Nonprofit & Charitable Solicitation Law
Personal Injury Law
Workers' Compensation Law
Ohio's Trap: Make Enforceable Contracts with Public Entities. Are Your Local Government Contracts Valid? Are they enforceable?
Ohio law is very strict.
To Arbitrate or Not to Arbitrate?
When deciding whether to include an arbitration clause
in your contracts or to engage in arbitration voluntarily,
there are several factors to consider.
Collection of Professional Accounts.
What to do before the account becomes a problem to collect and issues
to consider when deciding to go after payment.