Just have a question about liability for independent contractor drafter. The drafter is also have general contractor’s license but per contract only provide measurement and drafting service not construction service.
1. If independent drafter working in architect office, got redline and instructions from architect, does drafter still have liability for drawing construction details if issue has arise in the field?
2. If drafter do everything per architect instruction in drafting CD and then change order has arise, will drafter responsible for it or both architect and drafter respond for it?
thank you for your comment
Richard Balkins
Apr 14, 23 12:23 am
If they are a legitimate independent contractor, the scope of liability may be limited but if you are stamping the drawings, you bear liability.
If they are actually a contract employee, you will have vicarious liability as an employer.
Note: A drafter will have some liability but if they are merely drafting what you told the, it would be considerably limited in the domain of professional liability matters (distinct from contractual liability issues). As a building designer, my professional liability exposure in contract with an architect would be more limited given the limited scope of actual design decisions. A drafter's liability would be more limited to errors or ommission than necessarily malpractice or negligence because of statutory responsibility of the project and architectural decisions rests with the architect of responsible charge. This does not mean a drafter that is an independent contractor is without any liability exposure. If the drafter was an employee or contract employee, then the drafter would not be liable and the employer would be responsible for their employees, known as vicarious liability. This would apply to an architect employer.
When I provide building design (not drafting or back office drafting service support to architects) services to clients, I would essentially bear the same potential professional liability exposure including vicarious liability regarding the work of employees even if they are licensed architects (including contractual employees).
The answers pertains to the details of the situation. Legal issues or potential legal issues are things you should consult legal counsel (talk to lawyer) - not a bunch of IANALs on an architecture forum.
Chad Miller
Apr 14, 23 10:22 am
If a drafter is an independent contractor who's not stamping drawings then all liability and insurance is on the company that hired them. This includes any errors or omissions the drafter makes.
Richard Balkins
Apr 14, 23 11:32 am
That may or may not be the case. While it should but it does not always means the drafter is free of liability. Drafters that are independent contractor is not the same as employee but the details does matter.
Non Sequitur
Apr 14, 23 11:43 am
Ricky, it's always the case.
Richard Balkins
Apr 14, 23 12:32 pm
Is the drafter an independent contractor or is the person an employee?
Even non-licensees independent contractor can face liability. A drafter who is an independent contractor is a consultant just like a historic preservation consultant. An insurance carrier may deny coverage.
However, if it is something so closely controlled by and under the stamp that you control the means and methods, then the drafter is not an independent contractor but a contracted employee and is to be paid as an employee with the same tax withholdings and taxes as any employee.
A question might really be, is it even legal for an architect to be in a legally legitimate contractual relationship with a drafter as an independent contractor due to the direct supervision & control over documents prepared by others that would require their stamp.
Yet, it is possible that a drafter may prepare an As-is documentation (example: HABS, or other such drawings), which does not require an architect stamp, the drafter may be an independent contractor consultant.
Richard Balkins
Apr 14, 23 12:42 pm
In this case where the drafter is preparing an As-Is or As-built or something similar set of drawings as a consultant for the architect, the drafter might be under a legitimate independent contractor situation to the architect (drafter's client). The drafter may have E&O, Professional liability and professional standards to meet. It would be harder for a client to directly sue the consultant to the architect the same way it can be difficult for a client to go after a subcontractor due to the issue "privity of contract". There may be situations where they can. In the case of an drafter as a consultant to the architect, the architect is the drafter's client so there is privity of contract.
Richard Balkins
Apr 15, 23 4:39 am
To be clear, I do agree that there will be typical cases where the Architect or whoever is the prime consultant whose insurance is covering. In a typical case where the contracted drafter is functioning as a draftsman drafting up the technical documents under the direct supervision and control of the architect, legally, the contract drafter can not be an independent contractor. The drafter would actually be a contracted employee.
The very "direct supervision and control" by the architect cuts at the heart of what defines the "independent" in "independent contractor". The drafter would not be "independent" but a "dependent contractor" which makes them an employee because a "dependent contractor" is another way of saying "contracted employee" as technically all employees are technically under a form of "contract" from typical "employment contract" but a "contracted employee" merely means an employee hired under a custom contract.
However, there are situations where the services of a drafter may be independent. Being sued by any party for negligence or tort does not entirely depend on stamping. The architect may be responsible for his/her services but independent consultants aren't entirely out of the woods. Courts may make a ruling that holds a non-licensed consultant responsible for his or her own action.
The architect's insurance may cover the architect who might also receive a ruling against but the drafter consultant may very well be held responsible for errors and both the architect and the drafter be responsible for a f--- up.
For example, if I prepared "As-is" drawings that are used in your work and if I made an error, and you don't correct the error... well, both of us may be sued for the error/omission. The project client's lawyers may name both of us in the suit. The judge may rule in the case that the restitution reward is split between both of us. In turn, your insurance covers you but might not cover me. If I carried insurance, my carrier might cover me but not you.
While it is true that most drafters will be of limited income, they are most likely really contracted employees but misclassified as independent contractors as a form of tax evasion shenanigan by the employer-client (the Architect). In which case, the Architect's insurance really should cover the works of those contracted employees because it really is an employer-employee relationship.
There is a track record with the courts where Architecture firms misclassify employees as independent contractors when they are really employees. This isn't unique to Architects.
Richard Balkins
Apr 15, 23 4:49 am
Independent contractors are by definition, independent businesses and should be responsible for his or her action (sometimes a co-defendant in a tort, negligence, E&O case) and it's the cost of business to carry insurance. If you are not a professional and able to do your work independently in accordance with professional standard of care, you should not be in business and be an independent contractor when you are really in fact, an employee.... contracted employee but an employee nonetheless. The hiring architect should pay you as an employee not a 1099-MISC or any such 1099.
reallynotmyname
Apr 14, 23 12:30 pm
It would take a pretty unhinged client to sue the contract drafters that their architect used. Even if all contractual professional control protections were somehow overcome by the client, most drafters have not the money to pay a large settlement. A typical lawyer will advise the client against suing employees with limited resources and focus on getting money from the architecture firm and their insurance company.
Richard Balkins
Apr 14, 23 12:35 pm
I agree with that point out of practicality issues a client's lawyer may advise against wasting time on trying to collect.
Le Courvoisier
Apr 15, 23 9:27 am
Balkins is the original ChatGPT. Tons of words to say nothing but “I’m wrong”
Hi
Just have a question about liability for independent contractor drafter. The drafter is also have general contractor’s license but per contract only provide measurement and drafting service not construction service.
1. If independent drafter working in architect office, got redline and instructions from architect, does drafter still have liability for drawing construction details if issue has arise in the field?
2. If drafter do everything per architect instruction in drafting CD and then change order has arise, will drafter responsible for it or both architect and drafter respond for it?
thank you for your comment
If they are a legitimate independent contractor, the scope of liability may be limited but if you are stamping the drawings, you bear liability.
If they are actually a contract employee, you will have vicarious liability as an employer.
Note: A drafter will have some liability but if they are merely drafting what you told the, it would be considerably limited in the domain of professional liability matters (distinct from contractual liability issues). As a building designer, my professional liability exposure in contract with an architect would be more limited given the limited scope of actual design decisions. A drafter's liability would be more limited to errors or ommission than necessarily malpractice or negligence because of statutory responsibility of the project and architectural decisions rests with the architect of responsible charge. This does not mean a drafter that is an independent contractor is without any liability exposure. If the drafter was an employee or contract employee, then the drafter would not be liable and the employer would be responsible for their employees, known as vicarious liability. This would apply to an architect employer.
When I provide building design (not drafting or back office drafting service support to architects) services to clients, I would essentially bear the same potential professional liability exposure including vicarious liability regarding the work of employees even if they are licensed architects (including contractual employees).
The answers pertains to the details of the situation. Legal issues or potential legal issues are things you should consult legal counsel (talk to lawyer) - not a bunch of IANALs on an architecture forum.
If a drafter is an independent contractor who's not stamping drawings then all liability and insurance is on the company that hired them. This includes any errors or omissions the drafter makes.
That may or may not be the case. While it should but it does not always means the drafter is free of liability. Drafters that are independent contractor is not the same as employee but the details does matter.
Ricky, it's always the case.
Is the drafter an independent contractor or is the person an employee?
Even non-licensees independent contractor can face liability. A drafter who is an independent contractor is a consultant just like a historic preservation consultant. An insurance carrier may deny coverage.
However, if it is something so closely controlled by and under the stamp that you control the means and methods, then the drafter is not an independent contractor but a contracted employee and is to be paid as an employee with the same tax withholdings and taxes as any employee.
A question might really be, is it even legal for an architect to be in a legally legitimate contractual relationship with a drafter as an independent contractor due to the direct supervision & control over documents prepared by others that would require their stamp.
Yet, it is possible that a drafter may prepare an As-is documentation (example: HABS, or other such drawings), which does not require an architect stamp, the drafter may be an independent contractor consultant.
In this case where the drafter is preparing an As-Is or As-built or something similar set of drawings as a consultant for the architect, the drafter might be under a legitimate independent contractor situation to the architect (drafter's client). The drafter may have E&O, Professional liability and professional standards to meet. It would be harder for a client to directly sue the consultant to the architect the same way it can be difficult for a client to go after a subcontractor due to the issue "privity of contract". There may be situations where they can. In the case of an drafter as a consultant to the architect, the architect is the drafter's client so there is privity of contract.
To be clear, I do agree that there will be typical cases where the Architect or whoever is the prime consultant whose insurance is covering. In a typical case where the contracted drafter is functioning as a draftsman drafting up the technical documents under the direct supervision and control of the architect, legally, the contract drafter can not be an independent contractor. The drafter would actually be a contracted employee.
The very "direct supervision and control" by the architect cuts at the heart of what defines the "independent" in "independent contractor". The drafter would not be "independent" but a "dependent contractor" which makes them an employee because a "dependent contractor" is another way of saying "contracted employee" as technically all employees are technically under a form of "contract" from typical "employment contract" but a "contracted employee" merely means an employee hired under a custom contract.
However, there are situations where the services of a drafter may be independent. Being sued by any party for negligence or tort does not entirely depend on stamping. The architect may be responsible for his/her services but independent consultants aren't entirely out of the woods. Courts may make a ruling that holds a non-licensed consultant responsible for his or her own action.
The architect's insurance may cover the architect who might also receive a ruling against but the drafter consultant may very well be held responsible for errors and both the architect and the drafter be responsible for a f--- up.
For example, if I prepared "As-is" drawings that are used in your work and if I made an error, and you don't correct the error... well, both of us may be sued for the error/omission. The project client's lawyers may name both of us in the suit. The judge may rule in the case that the restitution reward is split between both of us. In turn, your insurance covers you but might not cover me. If I carried insurance, my carrier might cover me but not you.
While it is true that most drafters will be of limited income, they are most likely really contracted employees but misclassified as independent contractors as a form of tax evasion shenanigan by the employer-client (the Architect). In which case, the Architect's insurance really should cover the works of those contracted employees because it really is an employer-employee relationship.
There is a track record with the courts where Architecture firms misclassify employees as independent contractors when they are really employees. This isn't unique to Architects.
Independent contractors are by definition, independent businesses and should be responsible for his or her action (sometimes a co-defendant in a tort, negligence, E&O case) and it's the cost of business to carry insurance. If you are not a professional and able to do your work independently in accordance with professional standard of care, you should not be in business and be an independent contractor when you are really in fact, an employee.... contracted employee but an employee nonetheless. The hiring architect should pay you as an employee not a 1099-MISC or any such 1099.
It would take a pretty unhinged client to sue the contract drafters that their architect used. Even if all contractual professional control protections were somehow overcome by the client, most drafters have not the money to pay a large settlement.
A typical lawyer will advise the client against suing employees with limited resources and focus on getting money from the architecture firm and their insurance company.
I agree with that point out of practicality issues a client's lawyer may advise against wasting time on trying to collect.
Balkins is the original ChatGPT. Tons of words to say nothing but “I’m wrong”