Practice Management Member Conversations

Emma, in my opinion, this is the Contractors responsibility and not the Architect to file any required reports.  The Contractor owns the construction site from the time he executes a contract to the time when the Owner formally accepts the final product.

Herman Schmidt, AIA Emeritus

Thank you, Mr. Littman. I agree. Having been involved in a similar situation that involved an arson fire in a project that was 90% complete, I learned the limits of an architect's duties. The insurance company or companies that will pay for the reconstruction are in the driver's seat. Their investigators and appraisers will likely make the determination. As an architect, I'd be very careful of saying anything that might end up harming the Owner's interests. There are specialists who can represent the Owner better than an architect.

Steve Davis, AIA

Principal

Architecture  Planning  Interior Design

129 S. President Street

Jackson, Mississippi

39201.3605

601.948.7337

www.CCDarchitects.com

This is a truly fascinating topic in that it focuses squarely on the perception held by Owners (when they are our clients and even when they are not) and many Builders that the Architect is some sort of Final Arbiter on just about any topic associated with the built environment and especially on a project for which they happen to be the Architect of Record.  And Architects take the bait almost every time.  My additional two cents goes hand-in-glove with most of what's been written, but I'll say it anyway:

The Builder (e.g.: General Contractor, Construction Manager At-Risk, Design-Builder – whatever they may be) would customarily be required by the building Owner to carry Builder's Risk and General Liability Insurance prior to starting construction.  In the event of a casualty loss, the Insurance Underwriter may request of the Insured that they hire a design professional (architect, engineer, contractor) to recommend a remediation approach and substantiate the cost of that approach.  Or, they might bring in their own subject-matter experts.  Keep in mind that the long-term effectiveness of any casualty remediation plan contains as much professional liability risk as the original design.  I would argue that (1) if the Insurer requires a Remediation Plan from the Insured for any reason, including for the purpose of determining the Claim Amount, and (2) if the Insured needs Third Party expertise to provide that Remediation Plan and (3) the Insured asks their own Architect of Record to prepare that Remediation Plan then (4) the Architect of Record should perform such services under a stand-alone Agreement (not as an Additional Service) and that Agreement should be reviewed by an attorney familiar with Insurance Claims and the legal risks accompanying such a professional opinion, and that Agreement should require the Insured to agree to a broad Indemnification Clause.  Keep in mind that it is quite possible that the Architect-of-Record's E&O Insurance carrier might define a Remediation Plan provided by their Insured in any circumstance where their Insured is also the Architect of Record as an Exclusionary Event – in other words, not insurable for any subsequent claim of Error or Omission emanating from the remediation.

All of the above would be true regardless of whether the Architect's Client is a "typical" Owner using a CMaR or Design-Bid-Build Agreement or is the Builder under a Design-Build Agreement where the Builder is the Architect's actual Client.

Lastly, the observation that the Builder "owns" the construction project during construction is correct, otherwise the building Owner would carry and obtain and pay for the Builder's Risk and General Liability.  The only time this arrangement is not in place is when an Owner opts to use a ROCIP or OCIP insurance program and takes responsibility for buying the Builder's Risk and General Liability insurance and listing the Builder as a Named Insured.

And no, I am not an attorney, although I spent a decade as an Arbitrator for the American Arbitration Association, served as an Expert Witness for the Technical Advisory Service to Attorneys and taught AIA Construction Documents to seniors in the Technology Division of the University of North Florida.  I've also been a licensed Architect for 42 years during which time I was variously a VP for a General Construction Company, a partner in an MEP Engineering firm, a Real Estate developer and a licensed Real Estate Sales Agent.

I am happy to be corrected on any errors of fact.     

Phil L. Scott, Jr., AIA

Principal / CFO

GSC Architects

3100 Alvin DeVane Blvd

Bldg. A, Suite 200-B  |  Austin, TX 78741

C: 512.423.1944   |   T: 512.433.2513  |  F: 512.477.9675

www.gscarchitects.com

Thank you, Mr. Littman. I agree. Having been involved in a similar situation that involved an arson fire in a project that was 90% complete, I learned the limits of an architect's duties. The insurance company or companies that will pay for the reconstruction are in the driver's seat. Their investigators and appraisers will likely make the determination. As an architect, I'd be very careful of saying anything that might end up harming the Owner's interests. There are specialists who can represent the Owner better than an architect.

Steve Davis, AIA

Principal

Architecture  Planning  Interior Design

129 S. President Street

Jackson, Mississippi

39201.3605

601.948.7337

www.CCDarchitects.com