Terrible Bill in Florida Shields Architects/Engineers from Legitimate Malpractice Claims–Great Risks for Condos, Co-Ops and HOAs

[Updated with some new explanations, sorry for the delay!]

So while I try to keep my blog purring along on a national scope, the Florida Legislature today did something so questionable, with so many negative consequences for Shared Ownership Communities (SOCs) that I felt I had to brief my readers. If you live in Florida, PLEASE contact Governor Crist and ask him to veto this bill. You can reach the governor at Charlie.Crist@myflorida.com. Governor Crist has proven that he listens to his constituents–it’s time for us to speak up once again.

Senate Bill 1964 protects design professionals (architects, engineers and others, the majority of whom are perfectly nice and respectable people) from lawsuits due to their negligent design. That’s right–even when these engineers do their jobs badly, and even if a building is unsafe as a result, you will not be able to sue them to recover your economic damages.

First, some background. For many, many years, Florida law has recognized that professionals have a duty to perform their services according to a reasonable standard of care, and if they don’t, they are liable for damages caused by their carelessness. This includes purely economic losses, such as the cost to remediate the mistake or the reduction of property value. The reason this is important is because of a principle called the “economic loss rule,” which is legal mumbo jumbo that states that you can’t recover purely economic damages under tort (negligence) law unless you have property damage or a personal injury. Florida follows this rule for some types of lawsuits, but courts have been very clear in ruling that this can’t possibly apply in lawsuits against professionals like architects and engineers, because there are almost NEVER personal injury or property damages from their mistakes, and therefore they would essentially be unsueable except under contract law (where the remedies are far more limited, and are not always available to 3rd parties who are harmed by the error).

So the Florida legislature decided to overrule decades of precedent by passing a law that says the economic loss rule does apply to cases against design professionals. Therefore, under the new law, they can almost never be sued for negligence. Here’s the text of the law:

(1) A claimant contracting for the professional services of a design professional does not have a cause of action in tort against the design professional for the recovery of economic damages resulting from a construction defect.

The language is a little weird from a legal standpoint (only one of a number of problems with this bill), but it’s intent is clearly to wipe out well established legal precedent and to shield design professionals from liability. So who is covered by this limitation on liability? Architects, engineers, surveyors, interior designers and even landscape architects. If any one of them is negligent (if they act in a manner that is not reasonably professional), you cannot sue them in tort to recover your damages, unless they actually hurt someone (there’s an exception for personal injury) or their negligence damages someone else’s property.

Now, I have nothing at all against these types of design professionals–my mother is an interior designer, and I have good relationships with the engineers that I work with through my condominium. I simply feel that all people should be responsible for the reasonable consequences of the mistakes they make as a result of not doing their jobs within the bounds of reasonable care.

Think for a moment how incredible such a law is, and how much it proves just how important special interests are in government. Let’s say you hire someone to design a balcony overlooking your orchid garden. The engineer draws up the plans, and a contractor builds the deck. But a week later, the deck collapses, not only crushing your orchids but costing you double the original construction cost to repair. Turns out the engineer wasn’t quite paying attention and designed the deck with too few supports for the weight.

Now under current law, you would be able to bring the engineer to court and sue him for negligence, so that you can recover your economic damages–the cost of fixing the problem, perhaps the cost of the damaged orchids. Florida law recognizes that this is a legitimate lawsuit, and why not–how else would you hold professionals accountable for their carelessness?

But now, under this new law, the engineer would be totally protected from a negligence lawsuit. For some reason, he now gets protection that isn’t afforded to anyone else. Can you imagine if the legislature passed a law that said that lawyers could not be sued for damages cause by legal malpractice? People would flip. Who would tolerate such a law? Nobody gets that kind of protection–not accountants, or doctors or graphic designers. The only possible reason the legislature would pass this bill is because construction design professionals have enough pull with politicians to grant themselves a totally unprecedented legal shield.

Now here’s the $6,000,000 question. Why should SOC owners care? Every single condo, co-op and hoa, at some point in its lifespan, will need to make repairs or additions that require a design professional. Roofs, balconies, clubhouses and roads all deteriorate, and their repair and/or replacement usually requires that the association hires an engineer or architect. For many years, Florida’s courts had established that design professionals are, under tort law, responsible for economic damages caused by their negligence, just like EVERY OTHER TYPE OF PROFESSIONAL. But now, thanks to Florida’s consistently tone deaf legislature, that consumer protection has gone out the window. If your condo rebuilds it’s roof, and the engineer you hire designs it improperly, when that roof collapses and destroys half of your property your only recourse will be to go after insurance proceeds. When you hire an architect to design a storm drain, when that drain proves ineffective and your property sinks from flooding, you will have no recourse anymore. That’s why this bill is so dangerous for condos, co-ops and hoas. Design professionals are a constant element of the reality of repairing, securing and upgrading large properties, and if this bill is signed into law they will now be exempt from being responsible for damage they cause due to their own negligence.

Put simply, this is bad law, and it should be vetoed by the Governor. If you live outside of Florida, keep an eye on your own legislatures to make sure they don’t get any cute ideas, and if you live in Florida take the time to email Crist and let him know that we don’t take our legal protections for granted. SB 1964 is bad for SOCs, it’s bad for Florida, and it’s just a bad idea.

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