A man commits suicide in jail. His estate claims the death occurred because the architect who designed the jail did not make it "suicide proof," and sues him for "breach of duty."
Sound far-fetched? It happened in Illinois. Though most cases are not so bizarre, 44% of all insured architectural firms experience some litigation every year. For architects--like doctors, lawyers and accountants--litigation has become a fact of life.
Win or lose, the cost of litigation in all its ramifications is staggering. Most insurance policies have hefty deductibles. Time that otherwise would be profitably devoted to other projects must be directed to the litigation. And as long as the case is pending, the firm is likely to lose potential commissions.
Even if it wins in court or the suit is dropped, the reputation of the firm may be permanently damaged since the public is more likely to remember the existence of a lawsuit than the fact that the architect was eventually exonerated.
The current high risk of a lawsuit compels most firms to purchase liability insurance that has become extremely expensive. Because of all the litigation activity, the premium charges have skyrocketed in the last 10 years, and they are now a major budget item in most architectural practices.
Such insurance also has become increasingly difficult to obtain. Two years ago 13 companies offered it; now only two do. The difficulty of getting the insurance plus its cost has led a number of architects to "go bare," that is, not to have any insurance coverage at all.
Paul Janecki, senior vice president of Victor O. Schinerer Co. of Washington, D.C., one of the two insurance companies that still write liability insurance for architects (the other is Design Professional Insurance Co. of Monterey, Calif.), estimates that about 25% to 30% of registered architects in the United States do not carry liability insurance.
Why the flurry of lawsuits against architects? According to the insurance companies, most of it is due to an increasingly litigious public, more creative lawyers and unscrupulous clients who trump up a charge to take advantage of the fact that the architect has insurance.
No doubt, some client grievances are entirely legitimate. But, according to Janecki, more than three-quarters of the claims filed against firms carrying insurance are resolved without any payment from the insurance companies--clear evidence that many lawsuits are not justified.
Many of today's lawsuits against architects--the more creative by today's legal standards--would not even have been considered by lawyers 10 years ago and are next to impossible for even the savviest architect to protect against.
For example, some clients' attorneys in California as well as in other states are now claiming in their lawsuits that architects provide a product --e.g., a building--not a service , design and supervision of construction of a building.
If the courts accept this premise, it means that the architect would be responsible for all problems with the structure--no matter whether the contractor, subcontractors, suppliers, laborers, etc. are at fault. So far, clients have been unsuccessful in such suits. If a decision is ever passed down on this point that favors the client, few architects will be able to stay in business.
Lawsuits that hinge on the behavior of the client can also be difficult to anticipate and protect against. "Unfilled expectation," a fairly common type of lawsuit today, falls in this category.
It refers to situations in which the client claims the architect failed to ascertain fully his needs and budget constraints in designing the building, and typically arises after the building is completed.
For example, a client who appears to be perfectly satisfied, turns around and sues the architect, claiming he should have known his client could not pay $200 a month for air conditioning, and therefore the design should have had less glass even if this meant less view!
Since the courts can rule that it is the architect's responsibility to ascertain the client's budget, and since courts tend to favor clients--they are inexperienced, but this is the architect's business--the architect stands a good chance of losing in this case even thought he designed a structure that the client approved.
It should be noted, however, that in the current onslaught of lawsuits against architects, they are not completely faultless. Many of these "litigation heartaches" could have been avoided if the architect had carefully anticipated all possible contingencies and had sought legal advice in drawing up the contract.
A common type of "avoidable case" occurs when the architect, who knows enough about construction to know what can go wrong, allows unsupervised use of his plans.