The AIACC has developed legislative language to provide design professionals indemnification/duty-to-defend relief in the post-Crawford world.
Simply put, the California Supreme Court ruled in Crawford a few years ago that unless contract language specifically states otherwise, a contractual obligation to indemnify includes the duty to defend upon demand by the client whenever there is a claim damage was caused in part by the work of the architect. There is no requirement that an architect must be found negligent before the duty-to-defend obligation can be executed.
This, of course, puts architects and other design professionals at great risk as this type of obligation – the design professional serving as an insurance company for legal services for the client – is not covered by your professional liability insurance.
AIACC members have asked the AIACC to address this issue with the California State Legislature, and the Board of Directors agreed at its November meeting and instructed AIACC staff to work to have legislation introduced to amend California’s indemnification law so that it does not automatically include the duty-to-defend in the absence of negligence having been determined.
Our friends at the American Council of Engineering Companies – California (ACEC-CA) have tried to address the post-Crawford indemnification law with the Legislature, with the support of the AIACC, but the Legislature was not willing to make any significant, meaningful change to the law that offers statutory protection to design professionals.
Bob Benz
Mark
This is a topic worth addressing at our consultants organization Westcon. I am in contact with Mehradad and I asked him to think about giving a presentation this May or June.
Keep up the good work, these times are tough, every time an architect thinks he is insured, the insurance company finds a way to exclude coverage. Maybe you know a knowledgeable insurance professional who handles professional lability for architects. If so please refer him to me as we would love to have them come and speak.
Thanks again
Bob Benz
Don Dommer AIA
i was encouraged until i got to the last sentence. Is that end of the AIACC and ACEC-CA’s effort? I hope not. Is there is a plan or strategy being developed to gain traction for relief for this very real serious liability issue.
Alice Sung, AIA, LEED AP, BD+C
I agree with Don’s comments above. Very unsatisfying—it seems as though the article was cut off.
Please
(1) publish the AIACC’s ” legislative language to provide design professionals indemnification/duty-to-defend ,” that has been proposed in the legislation, and
(2) please tell us that getting this legislation passed/addressing our liability concerns is amongst the highest of AIACC’s priorities.
and (3) Please give us some practical guidance to those of us who are negotiating public contracts with Indemnification clauses that include ‘duty to defend’ .
AIA member surveys often ask–”How can the AIA provide more value?” I’d like to say responding immediately to the above 3 requests would be a large part of my answer to that question. Thank you.