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.