I'm an architect looking to join a firm which would like to use my license to stamp drawings. I'm looking for some kind of legally binding document which will hold me not liable for any claims brought against projects which use my license. The owner of the firm has liability insurance and the agent has stated in an email that I won’t be held liable ever. What should I do?
BulgarBlogger
Apr 17, 24 3:05 pm
what state is this in? Are you sure the owner isn’t misrepresenting himself as an architect?
Richard Balkins
Apr 18, 24 3:42 am
No state would allow what the OP is suggesting for these hold harmless agreements in the manner the OP is suggesting. It would be laughed at in the courts and stricken as unenforceable clause in the contract. Architects can not escape such responsibility, period.
BulgarBlogger
Apr 17, 24 3:08 pm
also, how could he take our liability insurance for a service he isn’t allowed to offer unless you’re saying that he is willing to pay for your liability insurance, in which case- why need insurance if he says you will never be held liable ever?
In my experience, he can hold you harmless against claims from himself and his company, but he can’t protect or hold you harmless against claims from the general public.
Richard Balkins
Apr 18, 24 3:43 am
Good point but even then, the court court still negate that clause. So its kind of a WTF moment when I read the OP.
reallynotmyname
Apr 17, 24 3:18 pm
Are you being hired to be an officer or partner in the firm? Otherwise, it is strange to me that they would want you stamping drawings. Unless its an something like an engineering firm and you are going to be the only architect.
The best answer to your question is going to come from you hiring a local attorney to review the situation. The attorney can draft hold-harmless document for you if that's what they determine is needed. Before you pay to have the document written, make sure the prospective employer is willing to even consider signing it.
smaarch
Apr 21, 24 8:13 pm
My understanding is a "hold harmless" is meaningless at a professional level. Perhaps the best the OP can do is enter an agreement where the firm/insurance fully covers the OP for any litigation - the timeframe would also need to be defined and IMO should be without limits or any relation to employment.
Richard Balkins
Apr 21, 24 8:55 pm
That I do agree with. The only time/employment relationship should be for matters related to work you done WHILE you were employed and with regards to the projects but cover you for an unlimited period of time or until all legal actions are time barred from taking place at all.
Point being, you should not have to remain employed by this firm to be covered for your work for this company. That coverage can have its limits like it doesn't cover independent work done outside of your employment or for another employer. Basically to protect the firm for any liability relating to "moonlighting" without necessarily prohibiting moonlighting. A good and decent firm will allow moonlighting within reason but lay down limits on the firm covering you for those things and laying down some ground rules like being able to show up to work in a manner where you are not too fatigue from the other work. Like show up to work ready to work. That's fair ground rules.
However, the firm/insurance should not cover any projects outside of employment or otherwise would be your responsibility and thus covered by your own insurance coverage or that of your new employer that you enter into a similar agreement with.
smaarch
Apr 21, 24 10:40 pm
Exactly
Non Sequitur
Apr 17, 24 4:19 pm
This is super mega not permitted in my area.
You should know better.
Chad Miller
Apr 17, 24 5:28 pm
I think he's an architect in the US.
Bench
Apr 18, 24 12:14 pm
murica does whatever tf it wants
t a z
Apr 19, 24 10:05 am
land of the free, home of the unlicensed building designer
graphemic
Apr 17, 24 4:50 pm
You... can't? That's what a stamp is. You're liable. You stamped the drawing.
I work in a large office so I'm not familiar with the granularity of these things. Curious for someone to correct or expand my understanding.
Chad Miller
Apr 17, 24 5:31 pm
In the US firms typically have things set up to protect the stamping architect from being liable. The firm is liable, not the architect. This has to do with the type of insurance the firm has and how the firm is set up. I don't think this protects the stamping architect from gross neglect or fraud though.
graphemic
Apr 17, 24 6:10 pm
Sure, for an LLC or LLP. But as someone noted above, he wouldn't be a stakeholder in the business but an employee. In that case wouldn't he be treated as a sole proprietor (whose private assets could be seized)? I suppose this is why OP is asking the question, or maybe I'm confusing myself.
Chad Miller
Apr 17, 24 6:40 pm
That is a valid concern graphemic.
I was speaking in terms of traditional architectural firms. The position the OP holds at the firm doesn't matter. The firm the OP works for needs to set things up so that he isn't liable. This can be dependent on state laws. The OP needs a lawyer.
Richard Balkins
Apr 18, 24 3:56 am
Technically, you would be legally liable but you would be covered and insured by the employing firm so you wouldn't necessarily have to have a separate coverage for yourself for work done on behalf of the firm. It softens the sting but it isn't the same as actually not being liable at all.
Richard Balkins
Apr 18, 24 4:02 am
At least the firm should have things set up that the OP is not exposed. If the firm wants the OP to stamp drawings, it should provide coverage to the OP's action and effectively cover the OP if the OP makes an error or omission or the likes. Otherwise, the OP should form an LLC to get some of the benefits of limited liability protections AND also get professional liability and E&O insurance to cover his own ass.
Chad Miller
Apr 18, 24 12:59 pm
Not correct Rick. In terms of architectural errors and omissions if you're found liable then you can be financially responsible. If you can't be held finically responsible then you're not liable. The way most firms are architectural firms are structured the FIRM, not the architect, is held liable.
Richard Balkins
Apr 19, 24 3:32 am
I think you misread what I said. It isn't the first time people misread or misunderstood what I said. The architect whose stamp is on the drawing... the ARCHITECT OF RESPONSIBLE CHARGE is ALWAYS subject to lawsuit and sanctions by the court and the licensing board. A firm may have a coverage plan to COVER your liability as the professional. The firm can ALSO be jointly liable as the employer and on contractual matters.
Your errors and omission the firm insurance covered is stilled tied to your name and your license as party. You can even be individually sued separate of the firm in separate lawsuits as well as be subject to court sanctions as well as that of the licensing board including fines, suspension of license, or revocation of license.
You would not ever be 100% free of liability. Even though the firm's insurance covers it, it can still be on the records and national/global databases insurance carriers of the nation and abroad.
It isn't much different than you being on your parent's car insurance coverage as a covered person. You screw up and get into a car accident or something, the parents pay it through their insurance but when it comes to you getting your own insurance, you would have a record and your insurance premium would be higher due to that record. So yeah, it penalizes the parents but you aren't 100% off the hook and face no consequence.
Yes, you can ALWAYS be held financially responsible. Just because your firm's insurance covers you has a covered party doesn't mean you can't be held financially responsible. You would be a named party in the lawsuit. EVERY negligence lawsuit lawyers sue architects on behalf of their clients names the architect not just the firm. They ALWAYS do that. It is standard operating procedure to name the owners of the firm, the firm, AND the person who stamped the drawings who prepared it or thus responsible for the preparation of it. The fact you are a party to the suit and named in it, you are legally subject to being held financially liable. If the firm names you as a covered person in their policy, they may cover the costs of whatever the amount is awarded to the party harmed if you were found negligent.
If the firm's policy didn't cover you, you have to cover it yourself out of pocket or have your own insurance policy in case the firm's policy doesn't cover you or it doesn't cover you completely like covering maybe 80% of it but you still have to pay the remaining 20% of the amount that was awarded against you.
Lets say the court awarded against you (not in your favor), $250,000 and the firm, maybe $100,000 for a total of $350,000 awarded to the injured party. The firm's policy may cover 100% or less than 100% of the $250,000 and cover 100% of the $100,000. If the firm's policy doesn't cover 100% of the $250,000 part, it can be whatever amount not covered which can be like 20% to the whole amount. So you can be on the hook for $50,000 to the whole amount.
The fact the firm policy covers you does not mean you are not liable. You are. It just means your firm is covering your ass financially through the firm's insurance policy. It doesn't mean your negligence isn't on the record. It is and will be for any insurance carrier to see and determine if they will cover you or the premium they will charge if you ever sought your own policy coverage.
You are not like an ordinary employee who is not licensed that is immune because what they do is under the direction and control of their employer who is mandatorily liable (under vicarious liability) for 100% of any harm the employees do with relatively few exceptions. As a general rule, employers are 100% responsible for any damages their employees may have done that harmed someone that is suing the firm.
That does not hold true when it comes to licensed architects who are employees.
Firms can elect to cover those licensed architects beyond that which the firm may be directly liable for and awarded against. So they can elect to cover not just that $100,000 but also cover that $250,000 as well by covering you in the hypothetical example. In the eyes of the law, you are still technically liable. It is just whose policy is paying on your behalf. You can still be sanctioned and liable to non-monetary sanctions. It is a privilege to have a policy covering you by the firm having your back.
It would be incumbent upon any licensed architect to act responsible and presume they may be liable to sanctions or disciplinary actions financially and non-financially. Exercise due diligence is the point and be responsible and accountable and take the steps to mitigate errors, negligence, etc. Do what you need to do so not to fuck up and uphold to professional standard of care or even above the minimum standard out of caution. That's the point to be driven and made clear to the OP. You can't use contracts to escape statutory responsibility. Period. No exception in any jurisdiction in the United States. If courts allowed that, we wouldn't have ANY laws that could be enforceable at all... literally.
Just because your firm's policy covers you, does not mean you should perform your work in a substandard, negligent manner, assuming they'll cover you and you be okay. There are always in those policy escape clauses to protect the firm itself. So you could end up not being covered as you thought. They can smell if some asshole architect employee is trying to game the firm's insurance policy so there is a point where the firm's insurance carrier gives you the Michael Cohen style two middle-finger salute.
Anon Myous
Apr 17, 24 7:41 pm
The owner of the firm is an unlicensed architect/contractor running his own design build firm in MA. He has liability insurance for the firm whose agent said I would not be held personally liable for any claims even if I left the firm later on unless I got my own liability insurance. I've called dozens of lawyers with no response so I was hoping I could just sign a written agreement between the owner and I saying I can not be held liable for any claims.
Non Sequitur
Apr 17, 24 7:52 pm
No such thing as an unlicensed architect. You’re a fool if you follow this route.
JonathanLivingston
Apr 17, 24 8:15 pm
Agreed, It's a trap. Why do they need an architects stamp if not to resolve liability?
Richard Balkins
Apr 18, 24 4:05 am
design-build contractors. They want an architect so they can get involved in design/build for non-exempt projects in the design-build format. Otherwise, they be limited to exempt projects.
reallynotmyname
Apr 18, 24 10:09 am
Sorry that you are having problems finding an attorney, but a lawyer representing you is really what you need in this situation. You writing a homemade or downloaded hold harmless agreement without any legal advice is too risky.
Chad Miller
Apr 18, 24 6:17 pm
Anon Myous wrote:
"The owner of the firm is an unlicensed architect/contractor running his own design build firm in MA. He has liability insurance for the firm whose agent said I would not be held personally liable for any claims even if I left the firm later on unless I got my own liability insurance. "
Run from this situation. The firm owner is feeding you a line of BS. This entire thing is shady.
proto
Apr 19, 24 3:53 pm
Is this business doing non-exempt work? What is "liability insurance" for a business that doesn't have a professionally licensed employee/owner?
Richard Balkins
Apr 19, 24 10:56 pm
proto, If they are a contractor, they may have Commercial General Liability Insurance and surety bond. If they do design-build even on exempt projects, they may have PLI/E&O insurance to cover building design side of things. If they have or adding an architect as an employee (which this may be), they may obtain such for architectural services rendered by the licensee by basically expanding a policy for 'residential / building design' services (which insurance companies do in fact offer insurance to cover such kinds of services (sometimes they would like some proof of building design certification otherwise an architect license)) to cover a broader architectural service. Of course, if one doesn't have an architect, the business can't legally be performing architectural services so even if they have the insurance, it doesn't cover blatant violation of the licensing laws. It would be an escape the insurance companies can use to not cover and say, tough shit... you're on your own on that on.
BulgarBlogger
Apr 18, 24 12:33 am
The OP shouldn’t be signing and sealing drawings. The ignorance and naïveté is too great for his own good.
Non Sequitur
Apr 18, 24 12:44 am
Imagine sitting on a 100k large student debt thinking your "stamp" is just something you can rent out without fear of liability? I'd be asking for big refund of those universities fees if that was the case...
Richard Balkins
Apr 18, 24 3:31 am
If you stamp drawings, as an architect, you ALWAYS will have professional liability exposure for errors, omissions, negligence, malpractice, etc. Hold harmless clause for those matters has absolute zero legal worth. The state statutory law will triumph over bullshit hold harmless clauses every single time. In other words, that clause will be 100% unenforceable and worthless. All it will do is cause a minor delay.
If you were unlicensed and employed as an employee, the employer will possess vicarious liability. Even then, as a licensed architect, the firm that employs you will bear some vicarious liability and can be enjoined in any lawsuit matter relating to the above matters stated in the first paragraph but you won't escape liability. In fact, the laws in ALL of the states in the United States prohibits and flat out outlaws licensed architects attempting to escape professional liability. In fact, it is the purpose of the licensing laws to HOLD you accountable for your actions.
If you want responsibility, it means you have to accept being held accountable. Is that clear, Daniel?
The ONLY thing you can apply the hold harmless clause with is with regards to certain contractual disputes between firm and client but there is still some limits. The best defense against tort, negligence, and related lawsuits is to never rush, make proper and professional decisions in accordance to professional standard of care, and be as much as possible above reproach in your practice. You will want to have your professional liability insurance. Yes, the firm can have a firm wide professional liability insurance to cover employed architects even if the owners are not necessarily a licensed architect. However, business structure and businesses practicing architect, and what is allowed depends on the individual states. Some states requires an architect is an owner of the business before such business can practice architecture.
If you are not going to have ownership stake and going to be stamping/signing technical submissions, you might want to negotiate for a higher salary or something with respect to the professional liability exposure.
Richard Balkins
Apr 18, 24 3:37 am
In short, if you don't want to be accountable and the responsibilities associated with possessing the architect license and stamping & sealing then do NOT get licensed and do not engage in the practice of architecture or engage in any form of independent building design practice. Always be a non-licensed employee working under the supervision and control of a licensed architect.
I'm a building designer and any project I do for clients, I bear liability to it. I would be held accountable to it under the law. It is that way for licensed architect even when they are an employee versus running their own firm or a co-owner of a firm.
Richard Balkins
Apr 18, 24 3:52 am
"The owner of the firm has liability insurance and the agent has stated in an email that I won’t be held liable ever."
Are the people on the same page here? That might be true for general liability. The firm may cover individual employees that are licensed and they be covered for PLI / E&O but that doesn't mean you, Daniel, can't be named in a lawsuit and be directly named as a party being sued.
Maybe the agent meant to said or did say, but you might misquoted, is that you are covered for any such matters for projects you do or done while employed even after you leave and still be covered in case a lawsuit comes up after you are no longer employed but within time period of legal actions to be taken.
Your agreement should address matters of insured coverage and remain covered until the statutes of limitations AND repose both ran out. NOTE: There are places where there is no time limit so its for life, essentially.
JonathanLivingston
Apr 18, 24 4:57 pm
Rick'd it
curtkram
Apr 19, 24 9:04 am
RB should be a lawyer instead of an architect. either way though, i think he would need to get a degree from an accredited university.
Richard Balkins
Apr 19, 24 3:08 pm
To become a lawyer would have its own pathways, frequently with a bachelor's degree from a regionally accredited institution and the law school being recognized. Of course, that's another matter that one has to look at with each jurisdiction as well as processes for 'licensing' in multiple states. I have actually looked at that before. It is also incumbent on myself to understand the laws that has some implication on me as a building designer and building design business as well as factors if we add architects to the business and offer architectural services and firm registration requirements namely in my state but also factor other states into the equation as well. What I do know is architects are always liable even when they are employees. As a building designer, I would be liable when I am an owner of the business entity (sole-proprietorships, LLCs, LLPs, corporations, etc.) but if I was merely working as a regular employee then I would not necessarily be liable unless the law says otherwise.
For example ORS 671.0454 (Oregon):
" 671.045 Liability of architectural firm. ORS 671.041 to 671.047 do not affect the law applicable to the professional relationship and liabilities between an architect or architectural firm rendering professional service in the practice of architecture and a person receiving the architect’s or architectural firm’s service, and ORS 671.041 to 671.047 do not affect the standards of professional conduct that apply to architects or architectural firms. A shareholder, director, member, officer, employee or agent of an architectural firm may be held personally liable for negligent or wrongful acts or misconduct committed by the shareholder, director, member, officer, employee or agent, or by a person under the direct supervision and control of the shareholder, director, member, officer, employee or agent, while rendering professional service on behalf of the architectural firm to a person receiving the service the same as though the service were being rendered by an individual. A shareholder, director, member or officer may also be held liable for negligent or wrongful acts or misconduct in participation with such acts or misconduct of another shareholder, director, member or officer of the architectural firm. The architectural firm is jointly and severally liable up to the full value of the architectural firm’s assets for the architectural firm’s acts or misconduct, but the shareholders, directors, members, officers, employees and agents of the architectural firm are not personally liable for the debts or other contractual obligations of the architectural firm. "
In this situations, an employee might not escape liability even when they are not licensed. I can be liable even as a non-licensed design professional because of being an owner if I hire an architect. This is something I am considering in the future but it is something to navigate with care and caution and due diligence.
Gregory Walker
Apr 20, 24 9:48 am
OP - I had this exact situation happen 20+ years ago, before I opened my own firm. You should ask more specific questions (and, yes, get a lawyer to review all of this with you and the owner).
My first intuition says to say no. In my situation (and likely here based on your statements so far), they are a licensed GC who's offering design services. If the architecture services are for categories in your state law that don't require a stamp, then that arrangement is legal.
I was hired when the group was doing SF homes, mostly to put more experience onto the team. But as the person in charge was getting offers to do small commercial jobs, the question about stamping, liability, etc. all became much harder. In the SF arrangement, so long as you weren't offering 'architecture' services but home design, then designing a home was covered under the construction liability insurance. (BTW - this is how every homebuilder operates).
The real problem - that I suspect hasn't been checked into yet - is that liability policies for construction specifically EXCLUDE covering 'architectural' services. Can't be covered. Same for an architecture policy - can't cover construction activities.
Owner had lied to me and said he'd gotten an architecture policy when I started. When I pressed for details, I was stalled out with "I'll dig it up sometime" to the point where I refused to do any more work until I had all the details on it. Next morning, there was a blank application on my desk with a note to fill it out and he'd get it.
Beyond the breach of trust, we couldn't get an architecture policy because the company wasn't a professional services company - it was construction company. I could have gotten individual policies to cover each project individually but the hassle and expense wasn't worth it. This was the proverbial final straw in my leaving but the short answer is: unless you a deeply aware of how insurance works, contact an agent and lawyer but a simple agreement between you both will have zero protection if someone decides to sue you individually.
Gregory Walker
Apr 20, 24 10:09 am
oh - I'll add that I had complete final authority over the design and documents - there was never a rent-a-stamp kind of proposition. So, if that's even being contemplated - that he wants you to stamp what he designs - run.
Richard Balkins
Apr 20, 24 11:13 am
I agree wholeheartedly. Very good points Gregory.
To the OP mainly, However, one caveat is, if the design-builder wants to be a lead designer, that can be okay ONLY if the Architect is Architect of Responsible Charge exercising responsible control throughout from start to finish. However, if it is one of those, they design and draft it all up and then come to you to stamp it at the end.... then absolutely NO!
The details of the arrangement matters. It is okay if the design builder wants to design and be a lead designer on a non-exempt project (if they are in any way good at design) as long as the Architect is in control throughout and can redline/veto the designer's decisions throughout the preparation from initial contact with client, project programming, through concept design and refinement all the way to technical submissions and such. From beginning to end.
"Tight ship" record keeping is a must in case you have to show to the licensing board the extent of your supervision and control over the work. It is a scenario that you do NOT want to f--- up on.
I'm an architect looking to join a firm which would like to use my license to stamp drawings. I'm looking for some kind of legally binding document which will hold me not liable for any claims brought against projects which use my license. The owner of the firm has liability insurance and the agent has stated in an email that I won’t be held liable ever. What should I do?
what state is this in? Are you sure the owner isn’t misrepresenting himself as an architect?
No state would allow what the OP is suggesting for these hold harmless agreements in the manner the OP is suggesting. It would be laughed at in the courts and stricken as unenforceable clause in the contract. Architects can not escape such responsibility, period.
also, how could he take our liability insurance for a service he isn’t allowed to offer unless you’re saying that he is willing to pay for your liability insurance, in which case- why need insurance if he says you will never be held liable ever?
In my experience, he can hold you harmless against claims from himself and his company, but he can’t protect or hold you harmless against claims from the general public.
Good point but even then, the court court still negate that clause. So its kind of a WTF moment when I read the OP.
Are you being hired to be an officer or partner in the firm? Otherwise, it is strange to me that they would want you stamping drawings. Unless its an something like an engineering firm and you are going to be the only architect.
The best answer to your question is going to come from you hiring a local attorney to review the situation. The attorney can draft hold-harmless document for you if that's what they determine is needed. Before you pay to have the document written, make sure the prospective employer is willing to even consider signing it.
My understanding is a "hold harmless" is meaningless at a professional level. Perhaps the best the OP can do is enter an agreement where the firm/insurance fully covers the OP for any litigation - the timeframe would also need to be defined and IMO should be without limits or any relation to employment.
That I do agree with. The only time/employment relationship should be for matters related to work you done WHILE you were employed and with regards to the projects but cover you for an unlimited period of time or until all legal actions are time barred from taking place at all.
Point being, you should not have to remain employed by this firm to be covered for your work for this company. That coverage can have its limits like it doesn't cover independent work done outside of your employment or for another employer. Basically to protect the firm for any liability relating to "moonlighting" without necessarily prohibiting moonlighting. A good and decent firm will allow moonlighting within reason but lay down limits on the firm covering you for those things and laying down some ground rules like being able to show up to work in a manner where you are not too fatigue from the other work. Like show up to work ready to work. That's fair ground rules.
However, the firm/insurance should not cover any projects outside of employment or otherwise would be your responsibility and thus covered by your own insurance coverage or that of your new employer that you enter into a similar agreement with.
Exactly
This is super mega not permitted in my area.
You should know better.
I think he's an architect in the US.
murica does whatever tf it wants
land of the free, home of the unlicensed building designer
You... can't? That's what a stamp is. You're liable. You stamped the drawing.
I work in a large office so I'm not familiar with the granularity of these things. Curious for someone to correct or expand my understanding.
In the US firms typically have things set up to protect the stamping architect from being liable. The firm is liable, not the architect. This has to do with the type of insurance the firm has and how the firm is set up. I don't think this protects the stamping architect from gross neglect or fraud though.
Sure, for an LLC or LLP. But as someone noted above, he wouldn't be a stakeholder in the business but an employee. In that case wouldn't he be treated as a sole proprietor (whose private assets could be seized)? I suppose this is why OP is asking the question, or maybe I'm confusing myself.
That is a valid concern graphemic.
I was speaking in terms of traditional architectural firms. The position the OP holds at the firm doesn't matter. The firm the OP works for needs to set things up so that he isn't liable. This can be dependent on state laws. The OP needs a lawyer.
Technically, you would be legally liable but you would be covered and insured by the employing firm so you wouldn't necessarily have to have a separate coverage for yourself for work done on behalf of the firm. It softens the sting but it isn't the same as actually not being liable at all.
At least the firm should have things set up that the OP is not exposed. If the firm wants the OP to stamp drawings, it should provide coverage to the OP's action and effectively cover the OP if the OP makes an error or omission or the likes. Otherwise, the OP should form an LLC to get some of the benefits of limited liability protections AND also get professional liability and E&O insurance to cover his own ass.
Not correct Rick. In terms of architectural errors and omissions if you're found liable then you can be financially responsible. If you can't be held finically responsible then you're not liable. The way most firms are architectural firms are structured the FIRM, not the architect, is held liable.
I think you misread what I said. It isn't the first time people misread or misunderstood what I said. The architect whose stamp is on the drawing... the ARCHITECT OF RESPONSIBLE CHARGE is ALWAYS subject to lawsuit and sanctions by the court and the licensing board. A firm may have a coverage plan to COVER your liability as the professional. The firm can ALSO be jointly liable as the employer and on contractual matters.
Your errors and omission the firm insurance covered is stilled tied to your name and your license as party. You can even be individually sued separate of the firm in separate lawsuits as well as be subject to court sanctions as well as that of the licensing board including fines, suspension of license, or revocation of license.
You would not ever be 100% free of liability. Even though the firm's insurance covers it, it can still be on the records and national/global databases insurance carriers of the nation and abroad.
It isn't much different than you being on your parent's car insurance coverage as a covered person. You screw up and get into a car accident or something, the parents pay it through their insurance but when it comes to you getting your own insurance, you would have a record and your insurance premium would be higher due to that record. So yeah, it penalizes the parents but you aren't 100% off the hook and face no consequence.
Yes, you can ALWAYS be held financially responsible. Just because your firm's insurance covers you has a covered party doesn't mean you can't be held financially responsible. You would be a named party in the lawsuit. EVERY negligence lawsuit lawyers sue architects on behalf of their clients names the architect not just the firm. They ALWAYS do that. It is standard operating procedure to name the owners of the firm, the firm, AND the person who stamped the drawings who prepared it or thus responsible for the preparation of it. The fact you are a party to the suit and named in it, you are legally subject to being held financially liable. If the firm names you as a covered person in their policy, they may cover the costs of whatever the amount is awarded to the party harmed if you were found negligent.
If the firm's policy didn't cover you, you have to cover it yourself out of pocket or have your own insurance policy in case the firm's policy doesn't cover you or it doesn't cover you completely like covering maybe 80% of it but you still have to pay the remaining 20% of the amount that was awarded against you.
Lets say the court awarded against you (not in your favor), $250,000 and the firm, maybe $100,000 for a total of $350,000 awarded to the injured party. The firm's policy may cover 100% or less than 100% of the $250,000 and cover 100% of the $100,000. If the firm's policy doesn't cover 100% of the $250,000 part, it can be whatever amount not covered which can be like 20% to the whole amount. So you can be on the hook for $50,000 to the whole amount.
The fact the firm policy covers you does not mean you are not liable. You are. It just means your firm is covering your ass financially through the firm's insurance policy. It doesn't mean your negligence isn't on the record. It is and will be for any insurance carrier to see and determine if they will cover you or the premium they will charge if you ever sought your own policy coverage.
You are not like an ordinary employee who is not licensed that is immune because what they do is under the direction and control of their employer who is mandatorily liable (under vicarious liability) for 100% of any harm the employees do with relatively few exceptions. As a general rule, employers are 100% responsible for any damages their employees may have done that harmed someone that is suing the firm.
That does not hold true when it comes to licensed architects who are employees.
Firms can elect to cover those licensed architects beyond that which the firm may be directly liable for and awarded against. So they can elect to cover not just that $100,000 but also cover that $250,000 as well by covering you in the hypothetical example. In the eyes of the law, you are still technically liable. It is just whose policy is paying on your behalf. You can still be sanctioned and liable to non-monetary sanctions. It is a privilege to have a policy covering you by the firm having your back.
It would be incumbent upon any licensed architect to act responsible and presume they may be liable to sanctions or disciplinary actions financially and non-financially. Exercise due diligence is the point and be responsible and accountable and take the steps to mitigate errors, negligence, etc. Do what you need to do so not to fuck up and uphold to professional standard of care or even above the minimum standard out of caution. That's the point to be driven and made clear to the OP. You can't use contracts to escape statutory responsibility. Period. No exception in any jurisdiction in the United States. If courts allowed that, we wouldn't have ANY laws that could be enforceable at all... literally.
Just because your firm's policy covers you, does not mean you should perform your work in a substandard, negligent manner, assuming they'll cover you and you be okay. There are always in those policy escape clauses to protect the firm itself. So you could end up not being covered as you thought. They can smell if some asshole architect employee is trying to game the firm's insurance policy so there is a point where the firm's insurance carrier gives you the Michael Cohen style two middle-finger salute.
The owner of the firm is an unlicensed architect/contractor running his own design build firm in MA. He has liability insurance for the firm whose agent said I would not be held personally liable for any claims even if I left the firm later on unless I got my own liability insurance. I've called dozens of lawyers with no response so I was hoping I could just sign a written agreement between the owner and I saying I can not be held liable for any claims.
No such thing as an unlicensed architect. You’re a fool if you follow this route.
Agreed, It's a trap. Why do they need an architects stamp if not to resolve liability?
design-build contractors. They want an architect so they can get involved in design/build for non-exempt projects in the design-build format. Otherwise, they be limited to exempt projects.
Sorry that you are having problems finding an attorney, but a lawyer representing you is really what you need in this situation. You writing a homemade or downloaded hold harmless agreement without any legal advice is too risky.
Anon Myous wrote:
"The owner of the firm is an unlicensed architect/contractor running his own design build firm in MA. He has liability insurance for the firm whose agent said I would not be held personally liable for any claims even if I left the firm later on unless I got my own liability insurance. "
Run from this situation. The firm owner is feeding you a line of BS. This entire thing is shady.
Is this business doing non-exempt work? What is "liability insurance" for a business that doesn't have a professionally licensed employee/owner?
proto, If they are a contractor, they may have Commercial General Liability Insurance and surety bond. If they do design-build even on exempt projects, they may have PLI/E&O insurance to cover building design side of things. If they have or adding an architect as an employee (which this may be), they may obtain such for architectural services rendered by the licensee by basically expanding a policy for 'residential / building design' services (which insurance companies do in fact offer insurance to cover such kinds of services (sometimes they would like some proof of building design certification otherwise an architect license)) to cover a broader architectural service. Of course, if one doesn't have an architect, the business can't legally be performing architectural services so even if they have the insurance, it doesn't cover blatant violation of the licensing laws. It would be an escape the insurance companies can use to not cover and say, tough shit... you're on your own on that on.
The OP shouldn’t be signing and sealing drawings. The ignorance and naïveté is too great for his own good.
Imagine sitting on a 100k large student debt thinking your "stamp" is just something you can rent out without fear of liability? I'd be asking for big refund of those universities fees if that was the case...
If you stamp drawings, as an architect, you ALWAYS will have professional liability exposure for errors, omissions, negligence, malpractice, etc. Hold harmless clause for those matters has absolute zero legal worth. The state statutory law will triumph over bullshit hold harmless clauses every single time. In other words, that clause will be 100% unenforceable and worthless. All it will do is cause a minor delay.
If you were unlicensed and employed as an employee, the employer will possess vicarious liability. Even then, as a licensed architect, the firm that employs you will bear some vicarious liability and can be enjoined in any lawsuit matter relating to the above matters stated in the first paragraph but you won't escape liability. In fact, the laws in ALL of the states in the United States prohibits and flat out outlaws licensed architects attempting to escape professional liability. In fact, it is the purpose of the licensing laws to HOLD you accountable for your actions.
If you want responsibility, it means you have to accept being held accountable. Is that clear, Daniel?
The ONLY thing you can apply the hold harmless clause with is with regards to certain contractual disputes between firm and client but there is still some limits. The best defense against tort, negligence, and related lawsuits is to never rush, make proper and professional decisions in accordance to professional standard of care, and be as much as possible above reproach in your practice. You will want to have your professional liability insurance. Yes, the firm can have a firm wide professional liability insurance to cover employed architects even if the owners are not necessarily a licensed architect. However, business structure and businesses practicing architect, and what is allowed depends on the individual states. Some states requires an architect is an owner of the business before such business can practice architecture.
If you are not going to have ownership stake and going to be stamping/signing technical submissions, you might want to negotiate for a higher salary or something with respect to the professional liability exposure.
In short, if you don't want to be accountable and the responsibilities associated with possessing the architect license and stamping & sealing then do NOT get licensed and do not engage in the practice of architecture or engage in any form of independent building design practice. Always be a non-licensed employee working under the supervision and control of a licensed architect.
I'm a building designer and any project I do for clients, I bear liability to it. I would be held accountable to it under the law. It is that way for licensed architect even when they are an employee versus running their own firm or a co-owner of a firm.
"The owner of the firm has liability insurance and the agent has stated in an email that I won’t be held liable ever."
Are the people on the same page here? That might be true for general liability. The firm may cover individual employees that are licensed and they be covered for PLI / E&O but that doesn't mean you, Daniel, can't be named in a lawsuit and be directly named as a party being sued.
Maybe the agent meant to said or did say, but you might misquoted, is that you are covered for any such matters for projects you do or done while employed even after you leave and still be covered in case a lawsuit comes up after you are no longer employed but within time period of legal actions to be taken.
Your agreement should address matters of insured coverage and remain covered until the statutes of limitations AND repose both ran out. NOTE: There are places where there is no time limit so its for life, essentially.
Rick'd it
RB should be a lawyer instead of an architect. either way though, i think he would need to get a degree from an accredited university.
To become a lawyer would have its own pathways, frequently with a bachelor's degree from a regionally accredited institution and the law school being recognized. Of course, that's another matter that one has to look at with each jurisdiction as well as processes for 'licensing' in multiple states. I have actually looked at that before. It is also incumbent on myself to understand the laws that has some implication on me as a building designer and building design business as well as factors if we add architects to the business and offer architectural services and firm registration requirements namely in my state but also factor other states into the equation as well. What I do know is architects are always liable even when they are employees. As a building designer, I would be liable when I am an owner of the business entity (sole-proprietorships, LLCs, LLPs, corporations, etc.) but if I was merely working as a regular employee then I would not necessarily be liable unless the law says otherwise.
For example ORS 671.0454 (Oregon):
" 671.045 Liability of architectural firm. ORS 671.041 to 671.047 do not affect the law applicable to the professional relationship and liabilities between an architect or architectural firm rendering professional service in the practice of architecture and a person receiving the architect’s or architectural firm’s service, and ORS 671.041 to 671.047 do not affect the standards of professional conduct that apply to architects or architectural firms. A shareholder, director, member, officer, employee or agent of an architectural firm may be held personally liable for negligent or wrongful acts or misconduct committed by the shareholder, director, member, officer, employee or agent, or by a person under the direct supervision and control of the shareholder, director, member, officer, employee or agent, while rendering professional service on behalf of the architectural firm to a person receiving the service the same as though the service were being rendered by an individual. A shareholder, director, member or officer may also be held liable for negligent or wrongful acts or misconduct in participation with such acts or misconduct of another shareholder, director, member or officer of the architectural firm. The architectural firm is jointly and severally liable up to the full value of the architectural firm’s assets for the architectural firm’s acts or misconduct, but the shareholders, directors, members, officers, employees and agents of the architectural firm are not personally liable for the debts or other contractual obligations of the architectural firm. "
In this situations, an employee might not escape liability even when they are not licensed. I can be liable even as a non-licensed design professional because of being an owner if I hire an architect. This is something I am considering in the future but it is something to navigate with care and caution and due diligence.
OP - I had this exact situation happen 20+ years ago, before I opened my own firm. You should ask more specific questions (and, yes, get a lawyer to review all of this with you and the owner).
My first intuition says to say no. In my situation (and likely here based on your statements so far), they are a licensed GC who's offering design services. If the architecture services are for categories in your state law that don't require a stamp, then that arrangement is legal.
I was hired when the group was doing SF homes, mostly to put more experience onto the team. But as the person in charge was getting offers to do small commercial jobs, the question about stamping, liability, etc. all became much harder. In the SF arrangement, so long as you weren't offering 'architecture' services but home design, then designing a home was covered under the construction liability insurance. (BTW - this is how every homebuilder operates).
The real problem - that I suspect hasn't been checked into yet - is that liability policies for construction specifically EXCLUDE covering 'architectural' services. Can't be covered. Same for an architecture policy - can't cover construction activities.
Owner had lied to me and said he'd gotten an architecture policy when I started. When I pressed for details, I was stalled out with "I'll dig it up sometime" to the point where I refused to do any more work until I had all the details on it. Next morning, there was a blank application on my desk with a note to fill it out and he'd get it.
Beyond the breach of trust, we couldn't get an architecture policy because the company wasn't a professional services company - it was construction company. I could have gotten individual policies to cover each project individually but the hassle and expense wasn't worth it. This was the proverbial final straw in my leaving but the short answer is: unless you a deeply aware of how insurance works, contact an agent and lawyer but a simple agreement between you both will have zero protection if someone decides to sue you individually.
oh - I'll add that I had complete final authority over the design and documents - there was never a rent-a-stamp kind of proposition. So, if that's even being contemplated - that he wants you to stamp what he designs - run.
I agree wholeheartedly. Very good points Gregory.
To the OP mainly, However, one caveat is, if the design-builder wants to be a lead designer, that can be okay ONLY if the Architect is Architect of Responsible Charge exercising responsible control throughout from start to finish. However, if it is one of those, they design and draft it all up and then come to you to stamp it at the end.... then absolutely NO!
The details of the arrangement matters. It is okay if the design builder wants to design and be a lead designer on a non-exempt project (if they are in any way good at design) as long as the Architect is in control throughout and can redline/veto the designer's decisions throughout the preparation from initial contact with client, project programming, through concept design and refinement all the way to technical submissions and such. From beginning to end.
"Tight ship" record keeping is a must in case you have to show to the licensing board the extent of your supervision and control over the work. It is a scenario that you do NOT want to f--- up on.