FEDERAL COURT SAYS CONSULTING ENGINEER DOES NOT OWE A GENERAL CONTRACTOR A DUTY UNDER FLORIDA LAW

FEDERAL COURT SAYS CONSULTING ENGINEER DOES NOT OWE A GENERAL CONTRACTOR A DUTY UNDER FLORIDA LAW

In Rec. Design & Constr., Inc. v. Wiss, Janney, Elstner & Assocs., Inc., 2011 U.S. Dist. LEXIS 127886 (S.D. Fla. Sept. 19, 2011), the United States District Court for the South District of Florida dealt with the liability of a consulting engineer to a general contractor under Florida law. The City of North Miami Beach (“the City”) contracted with Plaintiff Recreational Design & Construction, Inc. (“Plaintiff”) to design and construct a pool and water slide project. The City hired a separate engineering firm Hazen & Sawyer (“H&E”) to evaluate and inspect plaintiff’s work. H&E subcontracted with Wiss, Janney Eslterner & Assoc (“WJE”) to assess the engineering work completed on the project.

WJE issued a report stating that the water slide was not structurally safe and recommending repairs to the slide. Plaintiff disagreed with the assessment, but the City required Plaintiff to perform the repairs. Plaintiff brought suit against H&E and WJE seeking reimbursement for the cost of the repairs.

Plaintiff cited A.R. Moyer v. Graham, 285 So. 2d 397 (Fla. 1973), in which the Florida Supreme Court held that an architect could be found to owe a duty to a general contractor even if there is no privity of contract between the parties. The Court distinguished A.R. Moyer from this case, however, finding that Plaintiff was responsible for planning and designing, while H&E and WJE merely reviewed and evaluated plaintiff’s work. The Court found it significant that the duties of WJE and H&E were not triggered until after plaintiff had completed its work. The Court held that H&E and WJE owed the plaintiff no duty and Plaintiff’s claims failed as a matter of law.

This case is significant because in A.R. Moyer, and subsequent cases, Florida Courts have found a duty where no privity exists. Florida has become more and more likely to recognize a duty owed by design professionals to construction participants with whom the design professional has no contract. In this case, the Court declined to extend this duty to a party not in privity who is merely consulting on the project after the work to be inspected and evaluated has been completed.

It is unclear whether the trend in Florida to extend a design professional’s duty to more and more construction participants has ended, or whether this is simply a decision based on a particular unique set of facts. It is our opinion this is simply a fact specific case, but we will see if the tide is turning in Florida toward limiting a design professional’s duties to construction participants with whom the design professional has no contract.