Vicarious liabiality and who's responsibailities for errors and omissions on consultant's drawings?

I would like to clarify if architect is liable for any errors and omissions on the consultant’s documents.
Accordingly to vicarious liability, I think the answer is yes.
Am I correct?

Thanks for any feedbacks.
Gene

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From the way I’m reading the C401 (agreement between Architect and Consultant) it doesn’t look like the Architect is liable for errors and omissions on the consultant’s documents.

Section 2.8.7 states “the Consultant shall cause the primary and excess or umbrella policies for Commercial General Liability…for claims caused in whole or in part by the Consultant’s negligent acts or omissions”

Section 3.1 states “The Consultant shall [be]…subject to the same standards and provisions that the Architect is required to meet under the Prime Agreement”

Section 5.8 states “The Architect shall be entitled to rely on the accuracy and completeness of services and information furnished by the Consultant”

Unless the error or omission relates to conformance with the design documents (the Architect should be reviewing all drawings for general conformance), the Consultant would be liable.

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Thank you for your notes.

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The C401 states:
Section 3.1 states “The Consultant shall [be]…subject to the same standards and provisions that the Architect is required to meet under the Prime Agreement”
Does this mean that the architect shall furnish a copy of the prime contract, B-101, to the consultant when signing the C401 contract with them?

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I just happened to read this in the AHPP. It says “Rather than restate all of these rights and responsibilities from the owner-architect agreement—and run the risk of omitting some—it is common to incorporate the owner-architect agreement (often without specifics of the architect’s compensation) into the architect-consultant agreement. This binds the consultant to provide all of the services in its discipline and to be subject to the same terms and conditions the architect owes to the owner.”

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Interestingly that on the page 995 of AHPP there is an example of an architect being sued for his structural engineer error because the contract between the architect and the engineer had a liability limit. The engineer agreed to pay $100,000 and the rest (several million) was brought to the architect as he was the holder of the Prime contract with the client.
It looks that the answer is not that simple. The architect in theory is not responsible for the consultant’s errors, but if the consultant cannot satisfy the client’s (or a third party) damages the architect may be held responsible, given he has the Prime contract.

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yes…

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From what I can discern, directly from AHPP in Ch 5; there is no single straight forward answer. Not to repeat what others have said, but the common thread I keep finding is it comes down to the coverage amounts and if the architect is the prime consultant or not. It seems that the consultant’s insurance would pay out what their plan allows - anything over that gets splashed on the architect. The architect could, in turn, file yet another claim against the consultant for damages. But this is confusing as well - you end up with this liability cycle that has to end with someone…

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Adding to the complexity here with these two seemingly contradictory statements:

AHPP (p.1059) says: “As the prime design professional, the architect assumes primary contractual responsibility to the owner for the accuracy and completeness of the work of the architect’s consultants. If something goes wrong, the architect can be held contractually liable to the owner for services improperly performed by the architect’s consultant.”

However, C401 Section 1.4 reads “The Consultant is an independent contractor for This Portion of the Project. The Consultant is responsible for methods and means used in performing its services under this Agreement and is not an employee, agent, or partner of the Architect. The Architect shall not be responsible for the acts or omissions of the Consultant.”

Any experts know the definitive answer here?

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@coachdarionziegler do you mind helping @jpmcd

Hi @jpmcd ,

Great question! Like @Daniel.Tynes says, often times there is no single straight forward answer.

The architect is not “responsible” for errors and omissions in the consultant’s drawings per C401. That doesn’t mean they don’t get sued for them in real life though.

The owner does not have a contract with the architect’s consultants typically. Therefore, the owner would often not sue the consultants directly if an issue that can’t be resolved through negotiation arises. The owner might sue the architect, as the architect holds the prime agreement. The architect would then either pull the consultant into the case through the clause in C401 above, or by then suing the consultant themselves (note: I am not a lawyer, and not an expert at all in legal proceedings. This is probably way oversimplified).

I do understand that it’s messy and inelegant and depends on a whole host of factors. I’ve found a couple of online articles that might help:

However, it’s important to remember that the ARE is testing you on very specific information! If I had to guess, if a question like this is asked they are probably looking for you to answer along the lines of the information Cat pulled from C401 earlier in the thread.

Hope this helps!

-Darion

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