The Source Civil Engineering Magazine Legal Brief: When two professionals seal a drawing, who is responsible?

Legal Brief: When two professionals seal a drawing, who is responsible?

By Michael C. Loulakis and Lauren P. McLaughlin

ASCE’s Code of Ethics requires its members to “approve, sign, or seal only work products that have been prepared or reviewed by them or under their responsible charge,” and the codes of ethics applying to other engineers and architects are similar. More than just a simple ritual or formality, an architect’s or engineer’s seal is perhaps the most important statement that can be made by one of these practicing professionals.

When used on a set of plans or documents, the seal serves as a signal to clients, regulators, and the public at large that the documents meet the exacting standards of the profession. The seal signifies that the reviewer is not only qualified by education and experience to evaluate the contents but is also ethically bound to safeguard the health, safety, and welfare of the public.

In a recent case from Texas, two architects sealed the same design documents without allocating who was responsible for which portion of the design. When the architects were jointly sued for negligence, they defended the suit by arguing that the certificate of merit (used to weed out frivolous lawsuits against A/Es) failed to attribute specific errors or omissions to a specific architect.

Here’s how the court grappled with multiple seals in Resource Planning Associates LLC v. Sea Scout Base Galveston.

The case

Sea Scout Base Galveston is a nonprofit educational organization that was building a $44 million dormitory and community center on its property in Galveston, Texas. It engaged Robert A. Randall of Resource Planning Associates LLC to serve as the principal architect. Dan Shipley Architect Inc. also provided design services for the project. The design documents were sealed by RPA and Shipley.

After the project was built, the owner discovered water penetration and roof leaks and sued RPA and Shipley for professional negligence. The lawsuit does not clearly indicate the contractual privity of the parties. The owner sued RPA and Shipley for breach of contract, suggesting it had contracts with both. However, the owner also alleged RPA was responsible for Shipley’s work because Shipley was a consulting subcontractor to RPA.

To support its complaint and comply with a Texas law that requires a certificate by another licensed professional who is willing to testify to alleged negligence, the owner filed an affidavit of merit. The certificate detailed the alleged deficiencies in the design documents that had been sealed by RPA and Shipley and attributed all the deficiencies jointly to both architects.

As one might expect, RPA and Shipley defended the lawsuit at an early phase, arguing that the certificate was deficient because it failed to properly allocate or attribute the alleged deficiencies to one architect or the other. RPA and Shipley argued that the certificate of merit statute was violated because the allegations of negligence were lumped together without attribution as to which architect departed from the standard of care and how.

The legal rulings

The trial court rejected the architects’ argument, viewing that argument as a sort of “get out of jail free” card. The architects appealed.

The Court of Appeals of Texas noted that the requirement to affix an architect’s seal to design documents is set forth in the Texas Administrative Code. The code states that an architect may seal only documents for which the architect is personally responsible. The court noted that the law specifically contemplated that an architect might prepare only a portion of a document. In that case, each architect is required to affix his/her seal to the document and identify the portion of the document that he/she prepared.

The court determined that the architects in this case did not follow that procedure; there was no allocation or attribution of responsibility. As a result, the court did not find that the architects had fair grounds on which attack the sufficiency of the certificate of merit. Its decision allowed the suit to proceed; the suit would then determine which architect was responsible for which portion of the design.

Lessons learned

The Texas statute (and most others around the country that are similar in nature) makes sense in that if more than one signature is attached to a drawing, the A/Es must demonstrate which parts of the drawing were reviewed by them. What is at stake with such a signoff is the significance of personal knowledge. With so much trust placed in a design professional’s assessment of the documents, it is essential to know that the design professional has studied and evaluated and is certifying the documents. Accordingly, the requirement of personal involvement looms large both in state licensing laws governing the use of an architect’s or engineer’s seal and in the codes of ethics established by ASCE and other professional societies.

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2 COMMENTS

  1. I feel from the limited published data here that the “Solomon Solution” will prevail. The court is likely to offer to cut the baby in half and hope that the insurance carriers for the professionals will agree to pay half of a settlement instead of spending years in testimony meetings pointing fingers at each other. The carriers will select a negotiator and find an equitable sum to repair the damages and then split it equally between them. Speed is of the essence and disposing of the case is the most likely scenario to end this amicably, and avoid even expansive legal costs. Learning the outcome will help to avoid future such displays of lack of compliance with our Ethics Codes.

  2. I agree with the Dr/ James in his opinion,
    This is the only fast an fair resolution on a case like this, repair the damage , split the cost equally, finish the project.
    The A/Es should know better than this.

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