Design Professional Liability

By: Brendan J. Coughlin

The California Supreme Court has agreed to review a case greatly affecting construction defect litigation. All working contractors and subcontractors know how difficult it can be to force design professionals to be involved in construction litigation, even when their work is clearly at issue.

From the beginning of a case, established law tips in the favor of design architects and engineers. These are the very persons and firms that make the initial architectural, structural, and landscaping determinations that guide all subsequent work on a project. Simply suing such firms requires an expert's Certificate of Merit, unlike other parties, confirming that the claim is justified.

The California Supreme Court has granted review in Beacon Residential Community Association v. Skidmore, Owings and Merrill LLP (2012) 211 Cal.App.4th 1301. In this case, an appellate court reversed the holding of the trial court that two architectural firms could not be sued by a homeowner's association for negligence and violation of residential construction standards contained in California's Right to Repair Act of 2002, also known as SB 800. The basis for the trial court's decision was the fact that the homeowner's association and homeowners did not contract directly with the architects. Generally, without privity of contract, residential Plaintiffs cannot sue planners for negligent design.

However, in reversing the trial court, the Court of Appeal found that the language and legislative intent of the Right to Repair Act imposed potential third party liability upon design professionals. In other words, SB 800 itself supports possible negligence liability on design engineers and architects to owners.

Active construction contractors and subcontractors can see the potential impact of this development. For now, all await the California Supreme Court's decision. The architectural firms petitioned the Supreme Court for review, arguing that expanded liability for designers and planners should not become the law of our state.

Brendan J. Coughlin is an Associate with Kring & Chung, LLP's Irvine, CA office. He can be reached at (949) 261-7700 or

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