[CLC-Discussion] SB 286 - Limitations on Individual DesignProfessional Liability

Fri Apr 26 11:41:27 PDT 2013

Good questions, Bruce.  Here is my two cents at this early stage.

558.0035(1)(a) provides: "The contract includes a prominent statement
... that ... an individual employee or agent may not be held
individually liable for negligence."  You singled out a partnership,
limited partnership or proprietorship.  However, each of those entities
could employ a professional that would meet the exemption definition.
It would be those employees and agents of the partnership that would be
exempt from personal liability.  I agree that the partners or proprietor
of the company would not escape liability, but the liability would be
indirect, through the lack of any liability shield provided by these
forms of business entities, rather than direct from the partners status
as a professional.  

Thus, while John Smith might be an Architect/Partner in Design
Partnership and his work might be the target of a lawsuit for economic
damages, he would not be a named party even though he may be liable for
the judgment debt of the partnership.  Through the same theory, he would
be liable for the errors and omissions committed by his professional
employee, John Doe, even though Mr. Smith did not perform the work as
well. 

The changes that were not made support this interpretation. For
instance, section 471.023(3) still provides that "Partnerships and all
partners shall be jointly and severally liable for the negligence,
misconduct, or wrongful acts committed by their agents, employees, or
partners while acting in a professional capacity."  It would appear that
the corresponding sections to 471.023 in chapters 472, 481 and 492 would
all require modification if the legislature were attempting to eliminate
design professional liability for purely economic damages.

I agree that the inclusion of a sole proprietor in 558.035(2) is
confusing at best.  

Gene Atwood | Shareholder 

Rogers Towers, P.A. | 1301 Riverplace Blvd., Suite 1500 | Jacksonville,
Florida 32207

Direct 904.346.5721 | GAtwood at rtlaw.com <mailto:GAtwood at rtlaw.com>  | 
www.rtlaw.com <http://www.RTlaw.com> 

Florida Bar Board Certified Construction Attorney

From: clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Bruce
Partington
Sent: Friday, April 26, 2013 1:14 PM
To: Roberts, Hardy L.; Construction Law Discussion
Subject: Re: [CLC-Discussion] SB 286 - Limitations on Individual
DesignProfessional Liability

Since we've all been thoroughly studying this for the last 25 hours (and
busily forwarding it to all our design professional clients and those
who contract with them), it seems to me that there is a conflict or
ambiguity within the bill (or at least one).

On the one hand, it seeks to limit the individual responsibility of
licensees who are acting as the agent or employee of a "business entity"
-- but then includes within the definition of "business entity" both
traditional liability limiting entities, but also "partnership, limited
partnership, proprietorship, . . . .[and] self-employed individual."  It
seems to me that the statute can't do much good in those instances due
to the inherent liability under those other forms.  In other words, a
sole proprietor who would be personally liable for ALL debts and
obligations of the proprietorship would seem still to be liable since a
proprietor does not employ himself or herself, and cannot be his/her own
"agent."

Or, would the statute be construed to essentially eliminate claims for
"solely economic" damages against design professionals?  It's not
written that way, but that would seem the only alternative construction
that would give some meaning or value to partnerships, sole
proprietorships, and "self employed individual."  But, given that this
elimination of economic damages claims would have to be inferred run
afoul of the access to courts provision of the Florida Constitution
(despite the staff analysis).  

I'd welcome the thoughts of others on this and any other issues on the
bill.

Bruce D. Partington

Clark Partington

bpartington at cphlaw.com <mailto:bpartington at cphlaw.com> 

Direct: 850-432-1399

Fax: 850-432-7340

*Board Certified in Construction Law

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From: clc-discussion-bounces at lists.flabarrpptl.org [
mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of
Roberts, Hardy L.
Sent: Thursday, April 25, 2013 11:03 AM
To: 'Construction Law Discussion'
Subject: [CLC-Discussion] SB 286 - Limitations on Individual
DesignProfessional Liability

CLC'ers,

For your information, I understand Governor Scott signed the attached
bill into law yesterday.

Hardy

Hardy L. Roberts
Attorney at Law / Board Certified in Construction Law by the Florida Bar
4221 W. Boy Scout Blvd., Ste. 1000
Tampa, Florida  33607-5780 
Direct:  813.229.4105 | Fax:  813.229.4133

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