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Defending a Construction Design Defect Claim

ConstrLitig

As construction has boomed recently in Florida and across the nation, due to the recent uptick in the economy, so has the prevalence of design defect claims. Design professionals, such as architects and engineers, are employed to design or improve a building or other edifice, which is then constructed by a contractor, who may use one or more subcontractors. In the vast majority of cases, once construction is completed, that is the end of the relationship between the design professional and the construction project. However, in some cases, which may even occur years later, a problem appears, and the property owner asserts a design defect claim against the design professional. Retaining the services of an experienced construction design defect attorney is crucial to successfully defending these charges and to mitigate any possible damages. While some construction design defects may be valid, others are more superfluous. As an example, counsel for the design professional for a Sunny Isles Beach condominium complex has asserted that the complained-about construction design defects is more maintenance than construction in nature. As can be surmised, having an aggressive defense is key, and a discussion of the legal limitations on construction design defect liability, as well as strategies employed in defending against construction design defect claims, will follow below.

Florida’s Construction Design Defect Limitations

As a result of an influx of litigation against design professionals, in 2013, Florida’s Legislature passed a law limiting the liability of design professionals. Under the current law, design professionals are not individually liable for negligence (the typical legal theory which many use in these cases) if the following elements are met:

  • The construction contract is between the business entity who employs the design professional and the claimant;
  • The contract does not name the design professional as a party to the contract;
  • The contract includes a prominent statement indicating that, pursuant to Florida law, an individual employee of the business entity may not be held individually liable for negligence;
  • The business entity maintains professional liability insurance; and
  • Any potential damages are, in fact, solely economic in nature and do not extend to personal injuries or property not subject to the contract.

It is important to understand two aspects of this law. First, this law is intended to protect design professionals from individual liability – the business entity employing that design professional may still be held liable. Additionally, as alluded to, this law went into effect in 2013, July 1st to be exact. As such, any construction design defect claims based on a contract written before that date could still pose individual liability problems for the design professional.

Strategies

As previous discussion illustrates, the law in Florida limiting liability, which, in all but the last bullet point, gives an action item to the employer of the design professional, many claims can be avoided simply by having the proper contract in place. Accordingly, it is key to have an experienced construction attorney review any and all drafts of any construction contract, to ensure that these elements are satisfied. This is the best strategy to defend against a construction defect claim, and is the easiest strategy implement.

If a case is nevertheless filed, it should be noted that all construction-based proceedings are required to comply with the notice provisions of Florida’s construction law, which are extremely complex. The failure, on the part of the plaintiff, to comply with each and every aspect of this law could prove to be fatal to the claim. Again, an experienced construction law attorney can help in this regard.

Seek Legal Advice

If you have been accused of a construction design defect, contact an attorney experienced in construction law as soon as possible. The attorneys at Linkhorst & Hockin, P.A. have years of experience in defending accusations of construction design defects, and we can help you plan the most effective strategy to counter those accusations. Further, by contacting us as soon as possible, you can focus on the early resolution of these accusations, striving for dismissal or settlement during the legally-required pre-suit phase. Contact the Jupiter construction law firm today for a case analysis.

Resources:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0500-0599/0558/Sections/0558.0035.html

finance.yahoo.com/news/unsafe-balconies-water-leaks-other-153932141.html

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