Litigation Update

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LAW
Werner Sabo, FAIA, CSI, and James K. Zahn, FAIA, CSI

The authors have come across some interesting recently reported cases in the world of construction law.

In Builders Mutual v. Donald A. Gardner Architects, an architect sued a builder for copyright infringement.1 One issue was whether the builder infringed the architect’s copyrights by posting online photographs of a house designed by the latter. An exception at section 120(a) of the Copyright Act states:

The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work embodies is located in or ordinarily visible from a public place.

Based on this, the court held the taking of photographs of a constructed building did not infringe on the designer’s copyright.

During the congressional debate on amendments to the Copyright Act, the American Institute of Architects (AIA) had asked for language limiting the right to use photographs of structures, but such language was never incorporated into the act. Thus, photographs of structures generally do not constitute copyright infringement. However, preparing plans from the photographs and construction of a new home from them might be copyright infringement if the buildings were designed after December 1, 1990—when the Architectural Works Copyright Protection Act took effect.

Switching gears, last year’s Addison Clipson v. Consulting Engineers involved an engineer who sued the architect who hired him for fees.2 The engineer was not properly licensed, so the architect was not required to pay. Failure to be licensed is a defense when an unlicensed person or corporation attempts to collect fees for the services provided.

Many jurisdictions follow this rule, so it is important for architects and engineers to comply with the licensing laws in every jurisdiction they practice. This often presents problems when a professional is hired for a project in a different state from where he or she normally practices. There is a temptation to start work before becoming properly licensed in that state, but the results can be disastrous when the proper procedures are not followed.

In a similar vein, professionals can lose the right to fees when working for a governmental body, such as a city, if the proper contracting procedures are not strictly followed. In Annese Electrical Services v. Town of Billerica, the town’s wiring inspector ordered the contractor to perform additional services.3 The contractor did the work, but the town did not have to pay because the necessary approvals had not been obtained.

In another case, Patrick Engineering v. City of Naperville, the engineer was not paid for certain additional services.4 Even though the contract provided for verbal requests, the engineer was unable to allege specific facts to show any city official possessed express authority to verbally authorize additional services, or facts to show its reliance on the verbal authorizations was reasonable.

The court ruled the engineer could not rely on a theory of ‘equitable estoppel’ by alleging the officials who ordered the extra work had apparent authority to order that work. Instead, the engineer needed to allege specific facts to show the city official actually had the authority to order the extra work, not that he appeared to have such authority, and that the engineer reasonably relied on the statements and conduct of the official. Because this engineer did not make such an allegation, the engineer’s complaint should have been dismissed.

The lesson in both of the last two cases is anyone dealing with governmental agencies can only rely on proper contracts and not on verbal directions by any official. By taking such direction, the contractor or design professional may not be paid for additional work. Private clients, of course, are a different matter.

Finally, in Michael Horton Associates v. Calabrese & Kuncas, a structural engineer was hired to prepare the structural drawings for a project.5 That engineer hired a second structural engineer to peer-review the structural drawings to ensure they complied with the state building code requirements. The review indicated compliance with code. After the project was completed, the contractor sued the initial structural engineer, alleging the structural drawings were flawed.

The first engineer then sued the second engineer, claiming any damages found to have been caused by defects in the structural plans were a direct result of the second engineer’s negligent review of the drawings. The second engineer moved to dismiss this complaint, arguing if the review of the drawings was negligent, then the first engineer was necessarily actively negligent in the preparation of the drawings. The court agreed and the case was dismissed.

A design professional cannot avoid liability for its own bad work by hiring someone to review the work and sue them if the mistakes are not caught. An architect or engineer must perform the work in accordance with the normal professional standard of care, something that cannot be delegated.

Notes
1 856 F.Supp. 2d 773 (D.S. Carolina, Greenville Div., 2012).
2 2012 Ohio Misc. LEXIS 99 (June 12, 2012).
3 970 N.E.2d 813 (Mass. App., July 13, 2012).
4 976 N.E.2d 318 (IL 2012).
5 2012 Conn. Super LEXIS 689 (March 8, 2012).

Werner Sabo, FAIA, CSI, and James K. Zahn, FAIA, CSI, are architects, attorneys, and partners in the Chicago law firm of Sabo & Zahn. Both are resource members of the American Institute of Architects’ (AIA’s) National Documents Committee. They can be reached, respectively, at wsabo@sabozahn.com and jzahn@sabozahn.com.

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