The standard of care, the economic loss rule and certificates of merit.
Esshaki Legal Media TeamCurrent as of May 2023
Design professionals are held to a professional standard rather than to a
warranty of results, which shapes every claim against them.
Standard of care. The degree of skill and care ordinarily exercised by
similarly situated professionals in the community. A design that could have been
better is not negligent; one falling below the standard is. Expert testimony is
required to establish it in nearly all cases.
No implied warranty that the design will achieve a particular result, and
contractual language creating one is usually resisted and is frequently
uninsurable.
Economic loss rule. Bars negligence claims for purely economic loss between
parties in contractual privity in many states, and its application to
contractors suing designers without privity varies considerably by
jurisdiction.
Certificates of merit. Many states require an affidavit from a qualified
professional at filing, attesting that the claim has merit. Failure to file one
results in dismissal, sometimes with prejudice.
Statutes of repose apply and are frequently shorter than general limitation
periods.
Limitation of liability clauses in design agreements, capping exposure at
the fee or a stated amount, are enforced between sophisticated parties in most
states and void in a few.
Insurance. Professional liability policies are claims-made with defense
costs typically inside the limit.