Design Professional FAQ’s –Architects and Engineers Professional Liability Questions
What is the Standard of Care?
How should I review hazardous materials found on the project site?
How should I address the use of electronic media?
How do I handle “Opinions of Cost” and “Cost Estimates”?
How should I deal with “ownership of documents”?
How should I respond to owners that insist on using their own documents for hiring my professional services and are adamant the documents are “Standard Contracts”?
What is the key to effective remediation?
You might be as this is an all-encompassing statement. A mere claim against you does not equal culpability. Remember that your insurance pays for damages, and it pays to the extent you are found to be negligent.
It is redundant, as there is already a remedy under the law should you breach your contract.
Negligence may be difficult to prove, but breach of contract is not. To establish a breach, all an owner need do is prove that 1) you owed a duty to perform under your agreement, 2)you breached that duty, and 3) damages were sustained as a result. This is your client’s fall back position in the event negligence turns out to be impossible to establish. It is also your invitation to the owner to sue you at your expense. There is great leverage in this, and it flows in a single direction-from you to your client. Your client sues you for breach of contract, and you pay the associated attorneys’ fees and costs. Arguably, this is inconsistent with public policy. Public policy generally demands mutuality as a matter of equity where there is an agreement by one party to pay the attorney’s fees of another regardless of the outcome of a dispute between the two. Attorney’s fees are the only issue here, for if you are found to have breached your contract, there is a remedy for that in the law. As far as you are concerned, it is neither necessary, nor is it appropriate for you to add your indemnity to that remedy. Absent negligence your indemnification for breach of contract may be uninsurable; absent mutuality, it is unfair. Delete this language if you can. If you encounter sustained resistance, you might invoke the public policy argument and propose, as an alternative, to substitute language elsewhere in your agreement calling for the non-prevailing party to any dispute to compensate the prevailing party for costs of defense. There is leverage in this for you, but there is also some risk. Seek the advice of counsel before you pursue this strategy.